author: TUTTLE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Armando LACA, Jose H. Villanueva, and Ricardo Yanez, Defendants-Appellants.
    No. 73-3342.
    United States Court of Appeals, Fifth Circuit.
    Aug. 28, 1974.

      Victor R. Arditti, El Paso, Tex. (Court-appointed), for Yanez.

      Sid Abraham, Anthony C. Aguilar, El Paso, Tex. (Court-appointed), for Laca.
    Alice Dwyer, El Paso, Tex. (Court-appointed), for Villanueva.
    William Sessions, U. S. Atty., San Antonio, Tex., .Ronald R. Ederer, Asst. U. S. Atty., El Paso Tex., for plaintiff-appellee.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   TUTTLE, Circuit Judge:

These are consolidated appeals (a) from defendants Laca, Villanueva and Yanez’s convictions under count 1 for violation of 21 U.S.C.A. § 846 by conspiring to possess approximately 256 pounds of marijuana with intent to distribute the same contrary to 21 U.S.C.A. § 841(a)(1), and under count 2 for violation of 21 U.S.C.A. § 841(a)(1) by knowingly and intentionally possessing marijuana with intent to distribute, (b) from defendants Villanueva and Yanez’s convictions under count 3 for violation of 18 U.S.C.A. § 924(c) by carrying a firearm during the commission of a crime, and (c) from defendant Villanueva’s conviction under count 4 for knowingly possessing a firearm which had not been registered with the Secretary of the Treasury as required by 26 U.S.C.A. § 5841. After a joint trial, the jury returned a verdict of guilty on all counts as to all defendants.

Each defendant alleges numerous errors; however, we find that the majority of these problems were properly handled by the district court and that only the sentencing and the joinder issues raise questions sufficiently substantial to require discussion. We affirm the convictions, but remand for a resentencing in accordance with principles an-counted in this opinion.

The facts for purposes of analyzing these two issues may be briefly stated. On June 21, 1973, around 1:00 a. m. Officer Castro received a call from a confidential informant who stated that a “load of marijuana was being held at 805 Raynolds, in the garage, and that subjects were in the process of loading a vehicle and that the vehicle was backed up to the garage in the driveway.” Castro went to the back yard of 801 Raynolds, next door to 805, and observed the three defendants loading large sacks with “Mexican writing” on them into the trunk of a red ear. The red car left and Yanez backed a white Ford into the driveway to the garage area. Castro testified the three defendants then began loading large white sacks into the white Ford. At this time Castro left to join other patrolmen nearby. They returned to 805 Raynolds and ran towards the garage area. Officer Calanche testified that Laca, who was standing beside the white Ford, ran to the back of the house and then into the house, where he and Sgt. Chavez apprehended Laca. Castro encountered Yanez and Villanueva in the white Ford. Passenger Villanueva pointed a shotgun at him, but Castro grabbed driver Yanez by the hair and placed him between himself and Villanueva. Castro ordered Villanueva to ■drop the gun which he did, and both Yanez and Villanueva were arrested. Bags of marijuana were found in the white Ford and in the garage, but the red car was never located.

I. SEVERANCE MOTION

The first question is whether the joinder of defendant Laca, only charged with drug offenses, with his co-defendants, who were additionally charged with gun violations, constituted either (1) a misjoinder under Rule 8(b) or, alternatively (2) an abuse of discretion requiring reversal under Rule 14. Rule 8(b) provides:

“. . . (b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”

As aptly noted by one commentator, “[n]one of the Federal Rules has given rise to so much misunderstanding; yet few of the Rules are so vital. Few will deny that there is a positive correlation between the number of defendants and offenses cumulated within a single trial, and the likelihood of conviction.” 8 Moore’s Federal Practice § 8.02 [1], p. 8-2 (2d ed. 1973). Misjoinder under Rule 8 is an issue of law. In this respect it is unlike prejudicial joinder under Rule 14, which raises only the issue whether the trial judge abused his discretion. Tillman v. United States, 406 F.2d 930, 933 n. 5 (5th Cir.), vacated as to one defendant on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). “Whether there has been a misjoinder in a trial involving multiple defendants is governed by Rule 8(b); Rule 8(a) has no application in such instances.” United States v. Bova, 493 F.2d 33, 35 (5th Cir. 1974).

It is clear that there is no misjoinder simply because one defendant is not charged in each count of the indictment since Rule 8(b) clearly states that “all of the defendants need not be charged in each count.” Even though the defendants need not be charged in each count, the defendants must “have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. . . .” Thus if the defendants’ acts are a part of a series of transactions, it is not necessary under Rule 8(b) that all the defendants be charged in the same count or that the evidence show that each defendant participated in precisely the same act. See Kivette v. United States, 230 F.2d 749, 753 (5th Cir. 1956). It must only be shown that each act or transaction was part of “a series of acts or transactions” and that each defendant participated in the series of transactions. Here, the requisite close connection clearly existed between the acts to constitute “a series of acts or transactions,” as the violations occurred at the same time, place and occasion. Therefore, since the gun violations and the drug charges were in “a series of acts or transactions” in which series all three defendants participated, Rule 8(b) permits joinder of the defendants in one indictment.

Having found that there was no misjoinder of defendants under Rule 8(b), it is still necessary to determine whether there was sufficient prejudice to require a severance under Rule 14, which states in relevant part, that:

“[i]f it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.”

“The existence of prejudice, in large measure, depends upon the facts and circumstances of each case,” and “it is axiomatic that the granting of a severance is within the discretion of the trial judge.” E. g., Tillman v. United States, supra, 406 F.2d at 934. The burden of demonstrating prejudice is a difficult one, and the ruling of the trial court will rarely be disturbed on review. Id.

Appellant Laca claims he was prejudiced by joinder with his co-defendants, both of whom were charged with more serious offenses, violations of the Gun Control Act of 1968. Secondly, Laca asserts that the trial court compounded this prejudice by refusing to give limiting instruction regarding the gun offenses :

“Mr. Ederer: We have a charge limiting consideration by the jury of the firearm concerning the Defendant, MR. LACA. That would be just for the record.
The Court: To do what ?
Mr. Ederer: Concerning MR. LACA, as far as instructions to the jury to limit their consideration of the shotgun toward the other Defendants, since he is not charged with it.
The Court: I am not going to put any limitations on it. I think the Government should have had them all included in the same offense. I think the jury is entitled to consider it all.”

Although this instruction was refused, the government points out that the instruction that was given by the court distinctly set out that only two of the defendants were charged with the possession of the shot gun and that only one defendant was charged with registration violations, and, as to this, the court stated at page 271 of the transcript :

“. . . so, you will have to consider each count as to each defendant, and vote on them separately and enter your finding.”

Again on page 280, the court specifically set forth each count of the indictment and who was charged in each count.

The recent decision by this Court in United States v. Hamilton, 492 F.2d 1110 (5th Cir. 1974), indicates that this type of joinder accompanied by careful and clear instructions would not be an abuse of discretion under Rule 14. There, the indictment charged in count one Robert Hamilton, Edward Hamilton and Clarence Brantley with stealing government property and charged in count two Robert Hamilton _ and Clarence Brantley with willfully and maliciously setting fire to an occupied government building. Edward Hamilton asserted that his defense was unnecessarily prejudiced by a joint trial with the other defendants who had been charged additionally with arson. Finding no abuse of discretion, this Court stated:

“Edward Hamilton was charged with the theft of government property along with the other two appellants. His conviction arose out of the same series of transactions which resulted in the indictment of the other appellants. The trial court gave careful and clear instructions which allowed the jury to separate the theft charges from the arson charges. United States v. Ayres, 434 F.2d 60 (5th Cir. 1970). A district court’s refusal to grant severance will be reversed on appeal only when it is established that the court has clearly abused its discretion.”

Joinder queries ultimately involve a balancing of the public interest in avoiding a multiplicity of litigation and the defendant’s interest in obtaining a fair trial. As earlier noted, the mere joinder of any offense to that for which a defendant is charged is potentially prejudicial, and the prejudice of joinder in this situation is compounded where the defendants are not charged in each count of the indictment, but moreover are charged with distinct, albeit related, offenses. Here, where the interest in avoiding double proof was clearly facilitated since the violations occurred exactly at the same time and place, where the proof was short and not complex so that the jury could reasonably be expected to compartmentalize the evidence as it related to the separate defendants, and where there was no disparity in the gravity of the offenses, we cannot find a clear abuse of discretion. More importantly, although the requested charge by Laca’s counsel, Mr. Ederer, was denied, the instructions actually given by the court did sufficiently segregate the offenses and the defendants, so that an intelligent verdict could be rendered.

II. SENTENCING

The district court assessed punishment as follows: (1) Laca, five years on each of the two counts, to run consecutively, totalling ten years, and a five year special parole term; (2) Yanez, five years on each of the three counts to run consecutively, totalling fifteen years, and a five year special parole term; (3) Villanueva, five years on each of the four counts, with the sentences on counts 1, 2 and 3 to run consecutively, and the sentence on count 4 to run concurrently with count 3, totalling fifteen years, and a five years special parole. All three defendants were proper subjects for sentencing under the Youth Corrections Act. The appellants do not challenge the sentencing on the basis that the court arbitrarily gave the maximum sentence on the drug charges. Rather the appellants assert that the sentencing court committed error (1) by refusing to give an affirmative finding why these appellants would not derive benefit from treatment pursuant to the Youth Corrections Act, and (2) by improperly predicating the length of the sentences on whether the defendants had shown an “inclination toward repentance.”

The sentencing court stated:

“This is a very serious offense with very aggravated circumstances. You. jeopardized not only your lives, but the lives of these officers. This was in a regular gangster style that this was put on. None of you have shown any inclination toward r&pentance or trying to cooperate with the authorities to clear up any of these matters.
“. . . The attorneys can file motions for reduction and if your attitude changes and if you try to clear up these matters the Court can re-consider, but at this time I have no intention of re-considering this sentence because, as I said, it is very aggravated and there is no showing of any repentance on the part of any of you. It is an organized effort on your part to disobey the law in a very aggravatedway.” (Emphasis supplied).

A. Fifth Amendment Violations

The above quotation clearly reflects that the court based the sentences in part on the fact that the defendants had not shown “any inclination toward repentance.” The phraseology “inclination towards repentance” cannot be construed to merely mean cooperating with the authorities, since that condition is expressly stated in the quotation. “Repentance” used in the context of these comments cannot be read in any way but to mean confession. It is clear that the court took into account in sentencing that these defendants had pleaded not guilty, were convicted, and still refused to confess or repent of their crimes.

We reaffirm the principle prohibiting the substitution of an appellate court’s predilections for the broad discretion rightfully reposed in the trial court. However, by opining that these defendants had not shown an inclination towards repentance, the court erred by predicating the length of these sentences on whether the defendants had confessed their crimes. This conditioning of sentences on defendants’ confessions violated their right to avoid self-incrimination under the Fifth Amendment. We rely on this Court’s decision in Thomas v. United States, 368 F.2d 941 (5th Cir. 1966), and the District of Columbia Court of Appeals opinion in Scott v. United States, 135 U.S.App.D.C. 377, 419 F.2d 264 (1969), which followed and cited our Thomas decision, for the principle that a defendant’s Fifth Amendment privilege against self-incrimination is violated where a sentencing court takes into consideration a defendant’s refusal to confess after a not guilty plea. Cf. Williams v. United States, 273 F.2d 469 (10th Cir. 1969). As announced by the Thomas court, supra, 368 F.2d at 945:

“[i]t must be remembered that at the time of his allocution, Thomas had not been finally and irrevocably adjudged guilty. Still open to him were the processes of motion for new trial (including the opportunity to discover new evidence), appeal, petition for certiorari and collateral attack.”

We note the decision in United States v. Moore, 427 F.2d 38 (5th Cir. 1970), in which this Court under circumstances similar to Thomas did not find the violation of the principle established in Thomas, because the district court imposed only a thirteen month sentence where it could have assessed consecutive sentences totalling fifty years. The Moore court viewed the ease differently from Thomas “[s]ince the sentence imposed was a mere fraction of that authorized.” Id. at 42. The opinion in Moore does not undermine the reversal here, but in fact supports it since the defendants were given the maximum imprisonment on the drug charges to run consecutively, and substantial imprisonment on the gun violations. The sentences here were certainly not a “mere fraction of that authorized” as in Moore.

B. Youth Corrections Act

Appellants Yanez and Villanueva assert that the district court did not consider the option of sentencing them under the federal Youth Corrections Act, 18 U.S.C., § 5010, and that it was required to make an explicit finding that the defendants would not benefit from youth treatment as a condition precedent to sentencing eligible offenders as adults. The Supreme Court has only recently prescribed the procedure in such instances, Dorszynski v. United States, — U.S. —, 94 S.Ct. 3042, 41 L.Ed.2d 855. For the reasons already stated, we have concluded that these appellants must be resentenced. The District Judge who originally imposed sentence is now deceased. The Judge upon whom the duty will now devolve will have the benefit of Dorszynski, so we see no necessity for further comment on that issue at this point.

The convictions are affirmed.

The sentences are vacated and the cases are remanded for further proceedings not inconsistent with this opinion.

      . See Scheve v. United States, 87 U.S.App.D.C. 289, 184 F.2d 695 (1950), where the court held that the joinder of- an assault charge against defendant A with gambling violations against defendants A, B and O was proper due to the nexus between the offenses. See also Kivette v. United States, 230 F.2d 749 (5th Cir. 1956) citing Scheve, supra. However, when the link between the offenses is insufficient, joinder is improper. United States v. Bova, supra, held that the joinder of unrelated, but similar, charges was impermissible under Buie 8(b). -
      The two decisions relied upon by appellant Laca, Chubet v. United States, 414 F.2d 1018, 1020 (8th Cir. 1969) and United States v. Eagleston, 417 F.2d 11, 14 (10th Cir. 1969), are inapplicable because in the former “the information neither alleged that the transactions were connected nor that they were common to a conspiracy,” and, in the latter, the offenses were “totally unconnected."

      . The penalty for violating 21 U.S.C.A. § 846, by conspiring to possess marijuana with intent to distribute the same contrary to 21 U.S.C.A. § 841(a)(1), is: “Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed .for the offense . . .” The penalty for a violation under 21 U.S.C.A. § 841 is: “. . . (B) in the case of a controlled substance in schedule I or II which is not a narcotic drug or in the case of any controlled substance in schedule III, such person shall be sentenced to a term of imprisonment of not more than 5 years, a fine of not more than $15,000, or both.” The penalty for an initial violation under 18 U.S.C.A. § 924(c) is “not less than one year nor more than ten years.” The penalty for violating 26 U.S.C.A. § 5841 is not more than ten years, or $10,000 fine, or both, as provided in 26 U.S.C.A. § 5871.


source: Caselaw Access Project

author: JOHN R. BROWN, Chief Judge:

license: Public Domain

text:
    BRINKLEY & WEST, INC., Plaintiff-Appellant, v. FOREMOST INSURANCE COMPANY, Defendant-Appellee.
    No. 71-3110.
    United States Court of Appeals, Fifth Circuit.
    Aug. 26, 1974.

      Clarence F. Favret, Jr., New Orleans, La., for plaintiff-appellant.
    Donald R. Mintz, Carl J. Schumacher, Jr., New Orleans, La., for defendant-appellee.
    Before BROWN, Chief Judge, and RIVES and CLARK, Circuit Judges.
   ON PETITION FOR REHEARING

JOHN R. BROWN, Chief Judge:

The history of this case exemplifies the precarious path that the federal courts must tread when they follow the shifting tracks of the Erie Railroad. In our original opinion in this case the clearly defined and recently reaffirmed conflicts principles of Louisiana led us to conclude that the District Court below had erred in rendering a summary judgment for defendants. Accordingly, we reversed and remanded it for a trial on the merits. However, just prior to the publication of our opinion the Louisiana Supreme Court in Jagers v. Royal Indemnity Co. abruptly rejected the long-settled doctrine of lex loci delecti, the place of the injury rule, and the rule followed by our opinion. Thus, we must retreat and regroup in an effort to again do our Erie-Klaxon Electric duty —but this time with less predictable guidance as to how the Louisiana courts would decide a complex multi-state tort case such as ours. However, despite the change in the law, we are convinced that plaintiff's claim would be heard on the merits by Louisiana courts, for under the application of modern principles of conflicts law, the interests of her sister states would be found to predominate over the transaction that gave rise to plaintiff’s claim. Therefore we again reverse and remand for decision on the merits.

The Transaction

Brinkley & West (Agent), a Louisiana corporation, claims to have had an exclusive agency agreement with Foremost Insurance Company (Principal), a Michigan Corporation, authorized to do business in Louisiana, whereby the Agent would be responsible for marketing certain kinds of insurance coverage offered by Principal in 18 midwestern, southern, and southwestern states. Pursuant to the contract, Agent entered into sub-agency agreements with licensed insurance agents in these states to enlist them to solicit insurance proposals. These subagency contracts were presumably executed by the subagents in their respective states. The subagents lacked the power to bind Principal or Agent and were authorized merely to forward the proposals to Agent for acceptance. Monies due under the contract were similarly sent directly to Agent at its office in New Orleans.

These subagency contracts are the substance of this suit. Specifically, Agent complains that prior to the end of the primary contract, Principal, by directly contacting them, began pirating the subagents to do business directly with Principal. Through its field adjusters Principal induced the subs to breach their contracts with Agent in order to be available to write its insurance coverage directly.

Alleging that these acts constituted tortious interference with its sub-agency contracts, Agent brought this diversity suit in the United States District Court for the Eastern District of Louisiana where, under the. Erie-Klaxon rules, the District Court is bound to follow the Louisiana principles of conflicts of law.

Responding to Principal’s motion for a summary judgment, Agent conceded that the substantive law of Louisiana recognized no cause of action for intentional interference with or procurement of the breach of contractual relations and that the lex loci delicti standard was the Louisiana rule. Concluding that Louisiana was the situs of Agent’s damages, the District Judge dismissed the claim. Because we disagreed with the initial conclusion that Agent had suffered no damages in those states where Principal had allegedly induced breaches of the subcontracts, we held that reversal was in order.

Now post-Jagers v. Royal Indemnity Co. the problems posed for the Court are two-fold and difficult — since Jagers has unquestionably changed the law, [i] to what has it been changed and [ii] with what results for the case before us?

As for the first, analysis of the case offers ambiguous guidelines. There the Louisiana Supreme Court found that a suit between two Louisiana domiciliaries, mother and son, arising from a Mississippi accident should not be barred by the Mississippi intrafamily immunity doctrine because the Court viewed the case as presenting a false conflict of laws. Despite the temporary residence of the plaintiff in Mississippi, the Court saw no reasonable interest that Mississippi might have in the application of its laws to the case. In overturning its long established “vested rights” doctrine the Court explicitly found that:

No reason advanced for perpetu- ' ating the doctrine which would apply the law of the place of the tort, particularly in false conflicts eases like Johnson and the instant case, is either convincing or controlling. Johnson v. St. Paul Mercury Insurance Company, supra, is overruled.

•Citing the lack of any constitutional basis for the vested rights theory, the Court reasoned that any theory of conflicts law inevitably resulted in the extraterritorial application of the laws of some state. In addition, applying the law of the forum resulted in no necessary unfairness to defendants.

This clear rejection of lex loci delecti, particularly in cases of false conflicts such as Jagers, left a vacuum in Louisiana conflicts principles unfilled by the remainder of the opinion. Cryptically, the only reference by the Court to substitute guidelines was to say:

That some modern methods for determining whether to apply the law of the forum are faulty in some respects should not deter a court in the application of the law of the forum to its citizens, when not otherwise prohibited.

This statement — -followed by a footnote to the choice of law principles in § 6 of the Restatement (Second) of Conflicts —has been accepted by both Agent and Principal as establishing the interest analysis method as the law of Louisiana where a real conflict of laws exist between the parties. This is no real concession since for our Erie purposes we agree that the Court’s note 3 adopts the analysis of the Second Restatement. Therefore, since Jagers is the only weather vane available, the interest analysis principles embodied in the Second Restatement are the applicable conflicts law of Louisiana and our vehicle for deciding this ease.

The Variations On A Theme Of Interest Analysis

We start with the initial determination that the case before us presents more than an issue of spurious conflict of laws. This is to say that Louisiana has some interest in seeing that its laws are applied to the case other than the mere concern of a forum that its rules of trial administration be followed. Since we have concluded — as we will elaborate later — that the Louisiana law barring suits for tortious interference with contractual relations is based on a state policy to protect the job mobility of the labor force, there can be no doubt that Louisiana as domiciliary state of some of the subagents as well as of Agent has more than a mere forum’s interést in this suit.

Passing the false conflict hurdle, the Second Restatement (Second) of Conflicts adopts a procedure which is generally consistent with the state-interest theory of conflicts law. Section 6 sets out the general principles for focusing on and selecting domestic rules and policies relevant to the particular issue, to the occurrence, and to the parties. These principles themselves vary in importance according to the type of case at issue, e. g. contracts or torts actions. In the torts area, the Restatement commentators suggest that our case would turn on a consideration of factors: (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (g) ease in the determination and application of the law to be applied. (See note 13, supra).

Section 145 specifically applies these principles to the torts field by denoting “contacts” by which the courts can ascertain whether the state rule is rationally applicable. A particular contact is important for this purpose only insofar as it is relevant to this specific domestic policy at issue. Thus, instead of tallying each activity within the state — as might be done to determine the adequacy of service of process under a long arm statute — courts are to look first to the purpose behind the state rule and then the aspects of the transaction that further it. Ultimately and ideally, the combined “Section Six” principles and the “145” contacts relevant to these principles will point toward the law of one state as paramount because it has the “most significant relationship” to the issue. Therefore, following this method, our enterprise here is to consider the policy behind the Louisiana rule, the rule in the other potentially interested states, and the situs of the relevant contacts.

Interest Analysis Applied — Louisiana Law

The Louisiana rule barring an action for tortious interference with contractual relations has historical derivations with implications for our choice-of-law quest. Early on the Louisiana courts opted to reject this English action in favor of strictly limiting the non-breaching employer to his suit against the employee on the employment contract.

At first the Louisiana Supreme Court approached the issue from the standpoint of strict statutory construction. In the initial case, Kline v. Eubanks, the Court found that a criminal statute sanctioning as a misdemeanor anyone who induced an employee to break his contract and permitting a special recovery of twice the civil damages would not sustain a suit by an injured employer where there was no prior conviction. Since the statute imposed a new duty— to refrain from enticing away farm laborers — where none existed before, the Court refused to extend it beyond its literal meaning. For the same reason, no cause of action would be implied from the Louisiana general tort liability code provision.

Not long afterwards, the Supreme Court discussed the policy behind this hesitancy to permit such suits. In B. J. Wolf & Sons v. New Orleans Tailor-Made Pants Co. the Louisiana court explained that such remedies devolved from an era when servants were likened to chattels and being deprived of their services was akin to conversion. Such suits were inconsistent with the Codal provisions permitting the free movement of labor and the right to change the employment relations.

Thus, Louisiana employers have historically been restricted to their contract actions against errant employees. This is consistent with the strong Louisiana policy against contracts not to compete. For conflicts purposes, the Louisiana rule suggests a strong domestic interest in protecting the labor force of the state from the impediments to job mobility that could conceivably occur if the original employer could threaten suit against the outside predator.

The Interests Of The Eighteen • Sisters

Turning then to consider the interests of the other potentially involved states, it is significant that every jurisdiction in which Agent alleges that Principal pirated its subs away permits these suits save for Louisiana. This is consistent with the across-the-board adoption by most jurisdictions in the country of the right of suit to provide vindication for disapproved conduct. Such common action for the benefit of such specific economic interests permits generalizations to be made — the sort helpful alike to history, sociology, and the law. Thus, some courts, relying solely on the common law position, have emphasized the importance of such a rule for the protection of commercial expectations. Unlike Louisiana, these states recognize that the right to protect both business and employment relations against such purposeful interference is a natural incident to the existence of a contract — actual or implied. Still others have regarded the property interest inherent in contractual relationships to be of such importance as to justify codifying the common law right. Each of these states therefore have demonstrated that each has interest in the disruption of employment relationships occurring within its borders as well as other tortious interferences with performance of contracts.

Factor (g) Ease In The Determination And Application Of The Law To Be Applied

Turning at last to the remaining § 6 variant, this factor alone might seem to lend weight to Principal’s argument that Louisiana law should apply to the entire case and the summary judgment below should be affirmed. While the simplicity of this result is beguiling, we do not agree, for as alter egos of the Louisiana Supreme Court, we take our course from its expressed position in Jagers:

It may be true that the formulation of rules for the application of the law of the forum in cases which might involve the law of more than one state is difficult. Difficulty, however, is no excuse for abandoning the judicial function.

Louisiana in its deliberate break from the past has accepted the burden which flows from abandoning the easy way out —simply stopping with the rule it would apply between Louisiana litigants for occurrences solely within the state of Louisiana. This forces it to consider the interests of the sister states and whether recognition of these interests would impose on it any unusual difficulties in ascertaining what those foreign legally recognized interests are. Louisiana is a part of the Union and there is no indication that under its new rule it would find any difficulty either in ascertaining what the protectable interests are in each of the 18 sister states or that recognizing such substantive “foreign” rights as the basis for a suit which has to be brought in Louisiana would frustrate or infringe in any way on its capacity fully to effectuate its own contrary local substantive rule in a local Louisiana contest. On the contrary, we conclude that were this case pending in a Louisiana Court it would find a way to vindicate these almost universally recognizable rights. It would not hold that the Louisiana geneology of a rule springing from the highly personalized relationship of master and servant would compel it to carry this over to defeat a claim for tortious disruption of a modern, more complex commercial arrangement.

We therefore, adhere to our reversal and remand to the Trial Court for action consistent with this opinion (see note 6, swpra).

Rehearing denied.

      . Erie R.R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.

      . Brinkley & West, Inc. v. Foremost Ins., Co., [July 13, 1973, No. 71-3110], withdrawn prior to permanent publication.

      . Johnson v. St. Paul Mercury Ins. Co., 256 La. 289, 236 So.2d 216 (1970).

      . La., 276 So.2d 309 (1973).

      . Klaxon Co. v. Stentor Elec. Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477.

      . “[T] hough we hold that summary judgment was improper we express no opinion on the ultimate merits of the case or the best mode to resolve them. We repeat the frequent caveat that reversal does not necessarily foreshadow a trial, partial or full blown. That depends on the facts as developed and tested, not what the lawyers say they are in opposing affidavits. See . . . Cook & Nichol, Inc. v. Plimsoll Club, 5 Cir., 1971, 451 F.2d 505, 511; Mizell v. North Broward Hospital District, 5 Cir., 1968, 392 F.2d 580; Webb v. Standard Oil Co., 5 Cir., 1969, 414 F.2d 320; Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, 5 Cir., 1958, 257 F.2d 162, 167; Chagas v. Berry, 5 Cir., 1966, 369 F.2d 637, 642; Barber v. Motor Vessel ‘Blue Cat’, 5 Cir., 1967, 372 F.2d 626; Tyler v. Peel Corporation, 5 Cir., 1967, 371 F.2d 788, 791-792.” Smith v. St. Paul Fire & Marine Insurance Company, 5 Cir., 1972, 471 F.2d 840, 842-843.

      . The states included are Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, North Carolina, Oklahoma, South Carolina, Tennessee, Texas and Virginia.

      . Erie R.R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Klaxon Co. v. Stentor Elec. Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477.

      . We have written much about the propriety of dismissal for failure to state a claim— Louisiana jurisprudence would describe it as an exception of no cause of action — when some state of facts might support relief, see e. g., Cook & Nichol Inc. v. Plimsoll Club, 5 Cir., 1971, 451 F.2d 505 and cases cited. Here the District Court did not really fall into that trap of dismissing a case on the “barebones pleading”. If the trial judge was correct that Louisiana substantive law applied, then as the parties concede the case was appropriately dismissed. However since we alternatively hold that the Louisiana courts would hold that (i) the law of the state where inducement to breach occurred is the applicable law and that (ii) even if this was not so, then on the basis of general law that same injury — and hence the tort— occurred in the place of inducement, we conclude that there is a state of facts upon which relief can be granted by a Louisiana diversity court.
      The case was actually dismissed for failing to state a claim under the law of the diversity forum. It was properly characterized as a motion for summary judgment under Rule 12, Fed.R.Oiv.P. because matters other than pleadings were considered by the trial judge.

      . Jagers v. Royal Indemnity Co., La., 276 So.2d 309 (1973).

      . And on which we relied heavily in our first opinion. Johnson v. St. Paul Mercury Ins. Co., 256 La. 289, 236 So.2d 216 (1970).

       Jagers v. Royal Indemnity Co., La., 276 So.2d 309, 312 (1973).

      . Jagers v. Royal Indemnity Co., La., 276 So.2d 309, 312-313 (1973).

      . Id. at 312. Note 3 reads:
      For choice-of-law principles, see Restatement, Second, Conflict of Laws, § 6 (1969) :
      “(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law,
      “(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
      “(a) the needs of the interstate and international systems,
      “ (b) the relevant policies of the forum,
      “(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
      “(d) the protection of justified expectations,
      “(e) the basic policies underlying the particular field of law,
      “(f) certainty, predictability and uniformity of result, and
      “(g) ease in the determination and application of the law to be applied.”

      . The only other available alternative that occurs to this Court is that Louisiana, if it were met with a multi-state tort or contract action presenting a true conflict, would deem it best to revert to the vested rights doctrine as have other states in similar situations. Wessling v. Paris, 417 S.W.2d 259, 261 (Ky., 1967); Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo., 1969); see also R. Weintraub, Commentary on the Law of Conflicts, 260-61 (1st ed. 1971). While Louisiana may jog this way at some later date, there is nothing to indicate in Jagers that they mean to do so now.

      . Restatement (Second) of Conflicts § 6 (1971), Comment on Subsection (2) leads us to the conclusion that the other principles are not signifieannt to tort cases such as ours, e. g.,

      “(d) Needs of the interstate and international systems,” suggests merely that commercial comity should be considered by the forum state in resolving its choice of law problems.
      “ (g) Protection of justified expectations,”— as the comment to § 145 rightly notes this factor has little or no relevance to the torts field.
      “(h) Basic policies underlying the particular field of law,”—
      Finally, a number of policies, such as the deterrence of tortious conduct and the provision of compensation for the injured victim, underlie the tort field. These policies are likely to point in different directions in situations where the important elements of an occurrence are divided among two or more states.
      “(i) Predictability and uniformity of result,” — again this factor is inapplicable to the torts area for generally parties do not “give thought to the problem of applicable law in planning their transactions” see, Comment to § 145(b).

      . Restatement (Second) of Conflicts (1971).
      TITLE A. THE GENERAL PRINCIPLE
      § 145. The General Principle

      (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
      (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
      (a) the place where the injury occurred,
      (b) the place where the conduct causing the injury occurred.
      (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
      (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

      . R. Weintraub, Commentary on the Law of Conflicts, 260-61 (1st ed. 1971).

      . 109 La. 241, 33 So. 211 (1902).

      . La.Stat.Ann. (rev.) art. 2315.

      . 113 La. 388, 37 So. 2 (1904).

      . Moulin v. Monteleone, 165 La. 169, 115 So. 447 (1927).

      . Fraud and deception would provide the only instances in which the Louisiana courts would find such suits permissible. Kline v. Eubanks, 109 La. 241, 243, 33 So. 211, 213 (1902).

      . La.Stat.Ann. (rev.) 23:921.

        . All 17 states apparently hold it actionable. Cf., Evans v. Swaim, 1944, 245 Ala. 641, 18 So.2d 400, and see, Southwestern Publishing Co. v. Ney, 1957, 227 Ark. 852, 302 S.W.2d 538, 543; Paul’s Drugs Inc. v. Southern Bell Tel. & Tel. Co., Fla.App., 1965, 175 So.2d 203; Nottingham v. Wrigley, 1965, 221 Ga. 386, 144 S.E.2d 749; W. P. Iverson & Co. v. Dunham Manufacturing Co., 1958, 18 Ill.App.2d 404, 152 N.E.2d 615; Helvey v. O’Neill, Ind.App., 1972, 288 N.E.2d 553; Taylor v. Hoisting and Portable Engineers Local 101, AFL-CIO, 1962, 189 Kan. 137, 368 P.2d 8, 10; Derby Road Building Co. v. Commonwealth, Ky., 1955, 317 S.W.2d 891 (different portion of opinion overruled in F. Foley Construction Co. v. Ward, Ky.App., 1963, 375 S.W.2d 392); Bailey v. Richards, 1959, 236 Miss. 523, 111 So.2d 402, 407; Downey v. United Weather Proofing, 1953, 363 Mo. 852, 253 S.W.2d 976, 982; Wolf v. Perry, 1959, 65 N.M. 457, 339 P.2d 679; Fowler v. Nationwide Ins., 1962, 256 N.C. 555, 124 S.E.2d 520; Emery v. A & B Commercial Finishing Co., Okl., 1957, 315 P.2d 950; Smith v. Citizens and Southern National Bank of S. C., 1962, 241 S.C. 285, 128 S.E.2d 112; Love and Amos Coal Co. v. United Mine Workers, 1963, 53 Tenn.App. 37, 378 S.W.2d 430, 438, cert. denied, 376 U.S. 971, 84 S.Ct. 1137, 12 L.Ed.2d 85; Davis v. Freeman, Tex.Civ.App., 1961, 347 S.W.2d 650, 654, no writ; and Worrie v. Boze, 1956, 198 Va. 533, 95 S.E.2d 192. Also, see generally, 45 Am.Jur.2d, Interference, 280 and 26 A.L.R.2d, Procuring Breach of Contract, 1227.

      . See, e. g. Hill Grocery Co. v. Carroll, 223 Ala. 376, 378, 136 So. 789, 791 (1931).

      . Ga.Code Ann. § 105-1207
      In all cases he who maliciously procures an injury to be done to another, whether it is an actionable wrong or a breach of contract, is a joint wrongdoer, and may be sued either alone or jointly with the actor.
      Ga.Code Ann. § 105-1401
      The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie. Code § 105-1401.

      . Jagers v. Royal Indemnity Co., La., 276 So.2d 309, 313 (1973).

      . We reiterate that we affirm the summary judgment below for Principal with respect to any contracts between Agent and Louisiana subagents made and performable within Louisiana.


author: AINSWORTH, Circuit Judge:

text:
    Onesimo LIMON-GONZALEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-3412.
    United States Court of Appeals, Fifth Circuit.
    Aug. 28, 1974.
    Daniel J. Riley, Dallas, Tex. (Court-appointed), for petitioner-appellant.
    William S. Sessions, San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   AINSWORTH, Circuit Judge:

Onesimo Limon-Gonzalez appeals from the district court’s denial of his motion pursuant to 28 U.S.C. § 2255. We affirm.

Appellant was convicted on the basis of his guilty plea to an information charging him with acquiring and obtaining, in violation of 26 U.S.C. § 4744(a) (repealed, Act of Oct. 27, 1970, Pub.L. No. 91-513, Title III, § 1101(b)(3)(A), 84 Stat. 1292), thirty-one pounds of marihuana and eight marihuana cigarettes, without having paid the transfer tax imposed by 26 U.S.C. § 4741(a) (repealed, Act of Oct. 27, 1970, Pub.L.No. 91-513, Title III, § 1101(b)(3)(A), 84 Stat. 1292). The conviction was obtained on April 19, 1971, shortly before the effective date of the repeal of section 4744. Prior to his plea, appellant expressly waived his right to grand jury indictment and executed a written waiver of the defense to section 4744(a) established by Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). A supplemental information relating to appellant’s prior conviction under 26 U.S.C. § 4742(a) (prohibiting transfer of marihuana except pursuant to a written order form) (repealed, Act of Oct. 27, 1970, Pub.L. No. 91-513, Title III, § 1101(b)(3)(A), 84 Stat. 1292), was filed, and, on May 27, 1971, appellant was sentenced to ten years’ imprisonment. No direct appeal was taken. On September 13, 1972, appellant filed this petition under 28 U.S.C. § 2255, which was denied by the district court without a hearing.

Appellant initially contends that he should be permitted to plead anew because his guilty plea was accepted in violation of Rule 11 of the Federal Rules of Criminal Procedure. Three grounds are set forth in support of this contention. After careful scrutiny of the record and the applicable law, we are convinced that none of these grounds rises to constitutional or jurisdictional significance as required for relief under section 2255. See Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962); Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Arias v. United States, 7 Cir., 1973, 484 F.2d 577, 579-580. Appellant’s first assertion of Rule 11 error is that the district court did not personally interrogate him to determine that his plea was made voluntarily with understanding of the nature of the charge and the consequences of the plea. The transcript of the guilty plea proceeding, however, reveals that the court inquired whether appellant understood the rights appellant was aware of and understood and guarantees being waived, whether the maximum penalties, and whether the plea was based on either promises or threats. Under the circumstances presented, the inquiry by the district judge was sufficient.

Appellant’s second ground is that he was misinformed by the prosecuting attorney as to the maximum penalty that could result from his guilty plea. Appellant was informed that he could receive a maximum sentence of forty years. Appellant claims that, taking into account his prior conviction under section 4742(a), he was subject to a maximum penalty of twenty years rather than forty years. See 26 U.S.C. § 7237 (repealed, Pub.L. 91-513, Title III, § 1101(b)(4)(A), Oct. 27, 1970, 84 Stat. 1292). Even if we assume — though we do not decide — that appellant was misinformed, he is not entitled to replead. In our en banc decision in United States v. Woodall, 5 Cir., 1971, 438 F.2d 1317, cert. denied, 403 U.S. 933, 91 S.Ct. 2262, 29 L.Ed.2d 712, we rejected a similar claim made on the basis of facts analogous to those presented here; and we perceive no significant distinction in principle between the present case and Woodall. See Barton v. United States, 5 Cir., 1972, 458 F.2d 537.

Appellant’s third claim of error under Rule 11 is that the district court did not adequately ascertain a factual basis for his plea. Section 4744(a), under which appellant was convicted, punished the unlawful possession of marihuana without having paid the transfer tax imposed by section 4741(a). The factual basis developed in the guilty plea hearing showed that appellant was arrested on or about February 3, 1971, by customs agents near Presidio, Texas, in possession of approximately thirty-one pounds of marihuana, that the marihuana had been imported from Mexico into the United States, and that the required tax had not been paid on the marihuana. Appellant admitted these facts at the arraignment. Appellant now argues that as a part of the factual basis for his plea it should have been shown that he had failed to produce an order form for the marihuana, which order form, had he possessed one, would have entitled him under 26 U.S.C. § 4742(a) to have the marihuana in his possession. In making this argument, appellant refers to the portion of section 4744(a) providing that failure to produce a section 4742 order form shall be presumptive evidence of guilt. Se.e notes 1 and 6 supra. Appellant has never contended that he was able to produce the order form.

We are not persuaded by appellant’s argument. The factual basis developed by the district court in the record adequately fit the crime of which he was convicted. “[T]he inquiry made was factually precise enough and sufficiently specific to develop that [appellant’s] conduct on the [occasion] involved was within the ambit of that defined as criminal.” Jimenez v. United States, 5 Cir., 1973, 487 F.2d 212, cert. denied, 416 U.S. 916, 94 S.Ct. 1623, 40 L.Ed.2d 118 (1974); Cooks v. United States, 5 Cir., 1972, 461 F.2d 530, 533-534 n. 4.

We hold, therefore, that the record shows conclusively that there was no error in the acceptance of appellant’s guilty plea sufficient to warrant relief under section 2255. See generally Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973).

Appellant alternatively contends that the district court erred in denying his section 2255 motion without an evidentiary hearing, because the motion raised meritorious grounds for relief that were not conclusively foreclosed by the files and records of this case. Apparently, reference is made here to appellant’s allegations in his section 2255 motion that his guilty plea was induced by threats and coercion. Thorough examination of the record, however, reveals that appellant is not entitled to an evidentiary hearing on these allegations. See Bryan v. United States, 5 Cir., 1974, 492 F.2d 775 (en banc).

We have considered all of the contentions presented by appellant and find them to be without merit.

Affirmed.

      . 26 U.S.C. § 4744(a) provided :
      § 4744. Unlawful possession
      (a) Persons in general. — It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by section 4741(a) — ■
      (1) to acquire or otherwise obtain any marihuana without having paid such tax, or
      (2) to transport or conceal, or in any manner facilitate the transportation or concealment of, any marihuana so acquired or obtained.
      Proof that any person shall have had in his possession any marihuana and shall have failed, after reasonable notice and demand by the Secretary or his delegate, to produce the order form required by section 4742 to be retained by him shall be presumptive evidence of guilt under this subsection and of liability for the tax imposed by section 4741(a).

      . The text of Rule 11 reads :
      A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
      Congress is presently considering recently proposed amendments to the Federal Rules of Criminal Procedure. The proposed Rule 11 contains significant revisions. See 15 Crim.L.Rep. 1057; 15 Crim.L.Rep. 3001.

      . In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Court held, on direct appeal from the defendant’s guilty plea conviction, that literal compliance with Rule 11 was required. Shortly thereafter, in Halliday v. United States, 394 U.S. 831, 832, 89 S.Ct. 1498, 1499, 23 L.Ed.2d 16 (1969), which held that McCarthy was not to be applied retroactively, the Court pointed out: “In McCarthy we took care to note that our holding was based solely upon the application of Rule 11 and not upon constitutional grounds.” As this Court explained in Monroe v. United States, 5 Cir., 1972, 463 F.2d 1032, 1036, a section 2255 proceeding: “Rule 11 is not constitutionally mandated but assists the judge in making the constitutionally required determination of true voluntariness.”

        See also McCarthy v. United States, supra, 394 U.S. at 466, 89 S.Ct. at 1171: “[I]f a defendant’s guilty plea is not . voluntary and knowing, it has been obtained in violation of due process.....”

      . Under Rule 11, knowledge of the maximum possible penalties may be imparted by any source; it is not required that such knowledge come from the district judge. United States v. Frontero, 5 Cir., 1971, 452 F.2d 406, 415.

      . In United States v. Woodall, supra, Wood-all pled guilty, to two separate indictments containing two counts each. The first count of each indictment charged violation of 18 U.S.C. § 2113(a) ; and the second count of each indictment charged violation of 18 U.S. C. § 2113(d). Woodall sought to withdraw his guilty pleas on the ground that he had been induced to change his pleas from not guilty to guilty by misinformation as to possible maximum sentences. He claimed that he had been told that a maximum sentence of forty-five years awaited his guilty plea by pyramiding under the two counts of each indictment, which counts carried maximum sentences of twenty years and twenty-five years, when under the law then in effect there could be no pyramiding. The Court, though noting that it was “unwilling to lay down a per se rule which would hold every form of misinformation as to plea consequences which indicated more rigorous consequences than the law would truly permit could never be considered in an attack on a guilty plea . . .”, stated:
      Isolating all other factors that could influence a defendant in determining to enter a plea of guilty, the court is of the opinion that even if Woodall had been told the district judge could pyramid the maximum sentences under each of the separate counts of the two indictments to which he pled, this factor would not invalidate his plea. The probability such information would have influenced Woodall not to change his plea so far outweighs the possibility that the prospect of stiffer punishment may have caused the change, that we refuse to consider the latter as relevant.

        Id. 438 F.2d at 1329. (Emphasis in original.) See also Cooks v. United States, 5 Cir., 1972, 461 F.2d 530, 532-533 n. 3:
      In Woodall, since the defendant, by pleading guilty under the misapprehension that the consequences of the plea could be more severe than in fact they were, had evidenced a voluntary acceptance of the greater risk, the fact that the consequences of the plea could not be so dire as anticipated would not necessarily render the plea involuntary.

        See generally Stephen v. United States, 5 Cir., 1970, 426 F.2d 257, and Grant v. United States, 5 Cir., 1970, 424 F.2d 273, which were overruled in United States v. Woodall, supra.

      . 26 U.S.C.A. § 4742(a) provided :
      § 4742. Order forms
      (a) General requirement. — It shall be unlawful for any person, whether or not required to pay a special tax and register under sections 4751 to 4753, inclusive, to transfer marihuana, except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary or his delegate.

      . Appellant’s counsel states in his brief in this Court that appellant also alleged in his petition “that the plea was entered pursuant to a coerced plea bargain, which bargain was not fulfilled by the Government” and “that the plea of guilty was induced by unkept promises of defense counsel and the Government.” We can discern no such specific allegations in appellant’s section 2255 motion. However, we have considered the record and arguments in light of these additional allegations by appellant’s counsel, and we find that no evidentiary hearing is required under our en bane decision in Bryan v. United States, supra.


author: ALFRED T. GOODWIN, Circuit Judge:

text:
    Carol CLEAVER, Individually and on behalf of all others similarly situated, Appellee, v. Max WILCOX, Jr., Individually and in his official capacity as Judge of the Superior Court of the State of California for the County of Contra Costa, Juvenile Court Department, et al., Appellants. Celeste PREIS, an infant, By Charles George Preis, her father and next friend, Individually and on behalf of all others similarly situated, Appellee, v. Joseph WILSON, Individually and in his official capacity as Judge of the Superior Court of the State of California for the County of Marin, Juvenile Court Department, et al., Appellants.
    Nos. 72-1980, 72-2540.
    United States Court of Appeals, Ninth Circuit.
    June 7, 1974.

      Arthur W. Walenta, Jr., Deputy County Counsel (argued), John B. Clausen, County Counsel, Martinez, Cal., for appellants in 72-1980.
    Robert L. Walker (argued), Peter Bull, Kenneth Hecht, Youth Law Center, San Francisco, Cal., George E. Chaffey, Stephen K. Easton, Eugene M. Swann, Contra Costa Legal Services Foundation, Pittsburg, Cal., for appellee in 72-1980.
    Thomas G. Hendricks, Deputy County Counsel (argued), Douglas J. Maloney, County Counsel, San Rafael, Cal., for appellants in 72-2540.
    Cecilia Lannon, Legal Aid Society of Marin County, San Rafael, Cal., Robert L. Walker (argued), Peter Bull, Kenneth Hecht, Youth Law Center, San Francisco, Cal., George E. Chaffey, Stephen K. Easton, Eugene M. Swann, Contra Costa Legal Services Foundation, Pittsburg, Cal., for appellee in 72-2540.
    Before MERRILL, CARTER and GOODWIN, Circuit Judges.
   ALFRED T. GOODWIN, Circuit Judge:

The district court enjoined California juvenile authorities from proceeding in certain child-dependency cases without supplying counsel to indigent parents. For the reasons set out below, we reverse in part and remand.

I

The named plaintiffs claim to represent all indigent parents residing in Marin and Contra Costa counties who now are, or who in the future might become, parties to dependency proceedings brought pursuant to California’s Welfare and Institutions Code (hereinafter “W & I Code”) § 600. They sued under the Civil Rights Act of 1871, 42 U. S.C. § 1983, seeking to have counsel appointed to represent them in the state proceedings, and for other relief.

The plaintiffs allege that state officials violate their constitutional rights whenever juvenile officers proceed with dependency hearings in which the plaintiffs do not have the assistance of counsel. W & I Code § 600 sets out the conditions under which a child may be declared to be a “dependent child of the court.” Related sections of the W & I Code provide that a child who is found to be “dependent” may be subject to limited court control or removed from the custody of its parents for an indefinite time, subject to periodic review.

The state concedes that the plaintiffs are indigent and unable to retain counsel. The named plaintiffs requested the juvenile courts presiding over their W & I Code § 600 proceedings to appoint counsel to represent them. The presiding judges refused the request on the ground that the statute did not require it. There are no disputed questions of fact. The district court granted the plaintiffs summary judgments, and ordered the respective Superior and Juvenile Courts to appoint counsel in pending § 600 proceedings and enjoined those courts from conducting further such proceedings unless counsel has been appointed or waived.

The state argues that recent statutory changes in California’s W & I Code have mooted the claims of Cleaver and Preis, and thereby have also mooted the case. In 1972, after the district court had certified these as class actions, California amended its W & I Code to expand the types of proceedings in which court-appointed counsel would be a matter of right. Such cases include counsel in § 600(d) dependency proceedings for indigent minors and, when there is a conflict of interest between parent and child, counsel for the indigent parent or guardian as well. W & I Code §§ 634, 634.5. Under the amended statutes, Cleaver and Preis are now entitled to court-appointed counsel and their individual claims are moot. However, a class of plaintiffs remains, composed of those indigent parents whose § 600(a), (b), or (e) proceedings are presently pending, and this class can still contend that its members may be denied needed legal advice in those dependency proceedings in the uncontrolled discretion of the state judge. Accordingly, we hold that the class, as modified, survives. See Lidie v. California, 478 F.2d 552 (9th Cir. 1973). The termination of the controversy of the named class representative will not operate as a dismissal or render moot the action of the class, or prevent the named plaintiff from litigating the issues on behalf of the class, despite the lack of remaining stake, so long as the named plaintiff initially had standing to bring the action. Rivera v. Freeman, 469 F.2d 1159 (9th Cir. 1972). Accord, Vaughan v. Bower, 313 F.Supp. 37, 40 (D.Ariz.) (three-judge court), aff’d, 400 U.S. 884, 91 S.Ct. 139, 27 L.Ed.2d 129 (1970); see e. g., Conover v. Montemuro, 477 F.2d 1073, 1081-1082 (3d Cir. 1973); Moss v. Lane Co., 471 F.2d 853, 855 (4th Cir. 1973). Cleaver and Preis were members of the class at the commencement of the action, and their competency as representatives of their classes was determined at that time. Their continued competency was assumed in the declaratory judgments and injunctions issued after the effective date of the statutory changes.

II

We agree with the district court that the requisites of Fed.R.Civ.P. 23(a) and (b)(2) have been met. The class is too numerous to permit practical joinder of all parents. The principal question of law is common to all members. All assert a constitutional right to appointed counsel. The defendants denied appointed counsel to the named plaintiffs on the same theory which defendants assert against the class: namely, that no indigent parent has a right to appointed counsel in § 600 (now in § 600(a), (b), and (c) ) proceedings. However, in light of the high degree of uncertainty whether indigent parents might in the future be denied counsel in § 600(a), (b), or (c) dependency hearings, the relief ordered by the district court should be limited to declaratory relief.

III

As will be seen, both sides are claiming too much.

The injunction was not authorized. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), have counseled district courts against improvident exercise of their equitable powers to interfere with the operations of state courts. Absent showing of irreparable harm and inadequacy of state procedures, federal questions' that are involved in state-court litigation should be first adjudicated there. We recognize that the Younger line of cases dealt specifically with federal intervention in state criminal proceedings, and that applicability of Younger to a civil proceeding, such as is involved here, has been left open by the Supreme Court. Mitchum v. Foster, 407 U.S. 225, 244, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (concurring opinion of Burger, C. J.). See Speight v. Slaton, 415 U.S. 333, 94 S.Ct. 1098, 39 L.Ed.2d 367 (1974). Cf. Lynch v. Household Finance Corp., 405 U.S. 538, 561, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972) (dissenting opinion of White, J.). However, this case, whether viewed in the light of the general concept of state-federal comity or the specific doctrine of Younger v. Harris, is a proper situation for federal intervention. Plaintiffs have raised a colorable claim, not only that they are being denied a constitutional right, but also that their claim to this right will not receive an effective hearing and vindication in a state proceeding. Cf. Younger v. Harris, 401 U.S. at 49. Moreover, there is no counterpart to federal habeas corpus available to these civil litigants in which they can raise the constitutional issues they have been unable to present effectively in the state court. Nor will intervention in this case deny the state court an opportunity to decide for itself novel or unsettled state-law questions. The California courts have repeatedly denied or refused to hear these claims in the past. See In re T., 25 Cal.App.3d 120, 101 Cal.Rptr. 606 (1972), hearing denied Cal.S.Ct., May 12, 1972; In re S. and In re S., 18 Cal.App.3d 788, 96 Cal.Rptr. 203 (1971), hearing denied Cal.S.Ct., October 21, 1971 (Peters and Tobriner, J.J., voted to grant); In re Robinson, 8 Cal.App.3d 783, 87 Cal.Rptr. 678 (1970), hearing denied, Cal.S.Ct., October 1, 1970 (Peters and Tobriner, JJ., voted to grant), cert, denied sub nom. Kaufman v. Carter, 402 U.S. 964, 91 S.Ct. 1624, 29 L.Ed.2d 128 (1971). This history satisfies us that principles of federalism and comity should not bar federal intervention in this case.

However, the Supreme Court had indicated that, apart from Younger-doctrine considerations, there must be a showing of irreparable injury before a federal court can enjoin a state civil proceeding. Speight v. Slaton, supra. Inasmuch as the named plaintiffs have by statute been granted the right to appointed counsel, and inasmuch as no other plaintiff has come forward with a specific showing of irreparable injury, an injunction should not have been issued. This conclusion does not, however, answer the question whether all equitable relief is barred. Failure to demonstrate irreparable injury does not preclude the granting of declaratory relief. The Supreme Court has recently reemphasized that where, as here, federal adjudication is appropriate, Congress intended the declaratory judgment procedure to act as an alternative to injunctive relief and to be utilized to test the constitutionality of state statutes. See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Therefore, we turn to the propriety of declaratory relief under the facts of this case.

The temporary supervision of, or even suspension of, a parent’s control of a child is not necessarily an “irreparable injury.” Prolonged interruption of custody, accomplished without due process, may be “irreparable,” but each case will present its own facts. The State of California now provides free counsel in most contested dependency cases, and an opportunity to request counsel in the few remaining situations in which appointment is discretionary.

In denying that counsel must be provided in every case, the state has asserted the interests of economy, efficiency, and informality in hearings. This justification is undercut,, however, and a serious equal-protection question is raised when the state concedes that wealthy parents with retained counsel can turn the hearing into a formal adversary proceeding. The Supreme Court has not yet decided the extent to which the equal-protection clause, under Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and their progeny, provides a right to appointed counsel as a necessary concomitant of recognition of a due-process right to retained counsel. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probationer’s due-process right to appointed counsel). However, inasmuch as we are of the opinion that our due-process guidelines would require the appointment of counsel in those cases in which the deprivation is serious enough to support an equal-protection claim, we need not address the equal-protection question here.

The requisites of due process vary according to specific factual contexts. E. g., Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Here, for example, it is obvious that important rights turn on the manner in which findings of fact are determined, thus focusing attention on the safeguards surrounding the fact-finding process. When an agency of the state seeks to remove a child from the custody of parents who say they are qualified to rear the child, both the parents and the state have interest in accurate findings of fact and informed juvenile-court supervision. The state’s interest in saving public money does not outweigh society’s interest in preserving viable family units and the parent’s interest in not being unfairly deprived of control and custody of a child. Protection of a right as fundamental as that of child custody cannot be denied by asserting that counsel in. civil litigation has always depended upon the free-enterprise generalization that one usually gets what one pays for. The “civil litigation” generalization overlooks the nature of the rights in question and the relative powers of the antagonists. Despite the informality of the juvenile dependency hearings, the parent, untutored in the law, may well have difficulty presenting his or her version of disputed facts, cross-examining witnesses, or working with documentary evidence. Cf. Gagnon v. Scarpelli, 411 U.S. at 787.

Without undertaking to write a manual for state judges on when to appoint counsel in particular cases, we note some of the general factors which should be considered: One such factor is the length of the separation which the parents may face. Sections 725 to 729 of California’s W & I Code give the juvenile court authority to order varying degrees of restrictions on parental control once a child has been declared a dependent child of the court. The greater the probability of removal, based upon the facts of the case and the social-service worker’s recommendation, the more pressing will be the need for appointed counsel. A second factor is the presence or absence of parental consent or of disputed facts. Also relevant is the parent’s ability to cope with relevant documents and the examination of witnesses. The more complex the case, the more counsel can contribute to the hearings. Finally, should the judge refuse a request for counsel, it is important that the grounds for the refusal be stated in the record so that meaningful judicial review of the refusal can be had in the state courts.

This court does not believe it necessary to impose upon an excellent state-court system an inflexible constitutional rule which requires appointed counsel in every dependency proceeding. Rather, we believe that the class members can be fully protected by a statement of due-process principles in the form of a declaratory judgment. Parents are entitled to a judicial decision on the right to counsel in each case. The determination should be made with the understanding that due process requires the state to appoint counsel whenever an indigent parent, unable to present his or her case properly, faces a substantial possibility of the loss of custody or of prolonged separation from a child. Application of these guidelines can and should be made by the state courts on a case-by-case basis.

The named plaintiffs in the present case, because of recent statutory changes, are conceded to be entitled to counsel. Furthermore, as noted, injunctive relief is not appropriate for the class, because the record does not establish the kind of irreparable injury necessary to support such relief. However, inasmuch as the defendants have contended that they have no duty to apply due-process standards to any indigent parents involved in presently pending § 600(a), (b), or (c) dependency proceedings, we nonetheless have a valid class under Rule 23(b)(2) with respect to those parents for which declaratory relief is appropriate. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). On remand, the district court should vacate the injunction and modify its declaratory judgment in a manner consistent with this opinion.

Reversed in part and remanded.

      . § 600. Persons subject to jurisdiction

      “Any person under the age of 18 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge such person to be a dependent child of the court.
      (a) Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising such care or control, or has no parent or guardian actually exercising such care or control.
      (b) Who is destitute, or who is not provided with the necessities of life, or who is not provided with a home or suitable place of abode.
      (c) Who is physically dangerous to the public because of a mental or physical deficiency, disorder or abnormality.
      (d) Whose home is an unfit place for him by reason of neglect, cruelty, depravity, or physical abuse of either of his parents, or of his guardian or other person in whose custody or care he is.”

      . W & I Code §§ 725-729.

      . At the time of the state juvenile-court proceedings, California law provided for appointed counsel for indigent parents in § 601 (involving minors whose conduct portends delinquency) and § 602 (minors violating criminal laws or court orders) proceedings when there was a conflict of interest between parent and child. W & I Code § 634. Under subsequent amendments, counsel is now provided for such parents in § 600(d) (unfit home by reason of neglect or abuse) proceedings. W & I Code § 634.5. Appointed counsel is discretionary for either the minor or parents in § 600(a) (ineffective parental care or control), § 600(b) (destitute minor), or § 600(c) (dangerous minor due to mental or physical deficiency) proceedings.

      . Pending changes in the law liad been brought to the district court’s attention by the defendants.

      . This circuit has .applied the Younger principles to actions seeking to enjoin state proceedings which, although nominally civil, were “criminal” in nature or structure. See, e. g., Henkel v. Bradshaw, 483 F.2d 1386 (9th Cir. 1973) (contempt proceeding initiated by the district attorney); Rivera v. Freeman, 469 F.2d 1159 (9th Cir. 1972) (juvenile proceeding); Kinney v. Lenon, 447 F.2d 596 (9th Cir. 1971) (juvenile proceeding).

      . As discussed below, the decision as to the need for counsel in dependency hearings must be made on a case-by-case basis, and, as such, class-wide injunctive relief is inappropriate. Were there before this court an identifiable plaintiff whose claim was not moot, we would either make our own determination as to the need for counsel or, if the record were insufficient, remand to the district court to fashion appropriate equitable relief.

      . Several state courts have extended similar constitutional protections to indigent parents who are parties to proceedings to terminate or restrict parental rights. See, e. g., Chambers v. District Court of Dubuque County, 261 Iowa 31, 152 N.W.2d 818 (1967) (appointed counsel and free transcript on appeal) ; Danforth v. State Dept. of Health, Education and Welfare, 303 A.2d 794 (Maine 1973); In re Karren, 280 Minn. 277, 159 N.W.2d 402 (1968) (free transcript on appeal); State v. Caha, 190 Neb. 377, 208 N.W.2d 259 (1973); In the Matter of B, 30 N.Y.2d 352, 334 N.Y.S.2d 133, 285 N.E.2d 288 (1972); White v. Green, 70 Misc.2d 28, 332 N.Y.S.2d 300 (N.Y.Fam.Ct.1971); State v. Jamison, 251 Or. 114, 444 P.2d 15 (1968); In re Adoption of R. I., 455 Pa. 29, 312 A.2d 601 (1973); In re Lemaster, W. Va., 203 S.E.2d 140 (March 12, 1974).


author: PER CURIAM.

text:
    William Louis NICHOLS, Plaintiff-Appellant, v. Edward F. SCHUBERT, M. D., Defendant-Appellee.
    No. 73-1940.
    United States Court of Appeals, Seventh Circuit.
    Argued April 19, 1974.
    Decided May 22, 1974.
    Anthony J. Theodore and Charles Bennett Vetzner, Corrections Legal Services Program, Madison, Wis., for plaintiff-appellant.
    Robert W. Warren, Atty. Gen., Gary L. Carlson, Asst. Atty. Gen., Madison, Wis., for defendant-appellee.
    Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and SPRECHER, Circuit Judge.
   PER CURIAM.

Plaintiff’s -pro se complaint under the civil rights statutes, attacking the visiting privileges of the state hospital where plaintiff is under commitment, was received by the court clerk’s office on September 17, 1973. On September 21, 1973, the court granted the plaintiff leave to proceed in forma pauperis and, in the same opinion and order, the court on its own motion dismissed the complaint for failure “to set forth any actionable claim.” No summons was ever issued by the clerk nor served upon the defendant.

Rule 4(a), Fed.R.Civ.P. provides that “[u]pon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it.”

In Vina v. Hub Electric Co., 480 F.2d 1139, 1140 (7th Cir. 1973), we held that “Rule 4(a) of the Federal Rules of Civil Procedure provides a clear mandate to the clerk to immediately issue a summons and deliver it to the marshal for service.”

In Vina, we reversed a dismissal where the plaintiff filed a pro se complaint. After the district court denied his requests for appointment of counsel and leave to proceed in forma pauperis, he paid the filing fee and thereafter obtained counsel through the Legal Aid Bureau, but summons was not issued. In Dear v. Rathje, 485 F.2d 558, 560 (7th Cir. 1973), the plaintiff also filed a pro se complaint and apparently had paid the filing fee, but summons was not issued. We vacated a sua sponte dismissal of the complaint, saying:

We do not reach the merits of the order dismissing the complaint. To do so, we should have to deliver an advisory opinion, for until defendants have been summoned to appear and given some opportunity to respond to the complaint, we cannot know that there is a live controversy between the parties.

Here also a pro se complaint was filed by the plaintiff but instead of paying the filing fee, he sought and was granted leave to proceed in forma pauperis. However the complaint was dismissed sua sponte without summons having been issued or served. We perceive no reason for circumventing the mandate of Rule 4(a) that the clerk “shall forthwith issue a summons,” simply because the matter proceeded in forma pauperis. Such cases must proceed through the adversary system with live defendants properly served as in all other cases.

Without reaching the merits, we vacate the order of dismissal and remand the cause with directions to order immediate issuance of summons against the named defendant. The mandate of this court will issue immediately.

Vacated and remanded with directions.


author: McCREE, Circuit Judge.

text:
    Edward McKAY and Margaret McKay, his wife, Plaintiffs-Appellants, v. FORD MOTOR COMPANY and Michigan Commercial Contracting Corporation, Defendants-Appellees.
    No. 73-1461.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 12, 1974.
    Decided June 21,1974.

      Rothe, Marston, Mazey, Sachs & O’Connell, by D. Charles Marston, James B. Veu Casovic, Detroit, Mich., on brief, for plaintiffs-appellants.
    Alexander, Buchanan & Seavitt, Robert J. Stowe, Detroit, Mich., on brief, for Ford Motor Co.
    Davidson, Gotshall, Halsey, Kohl, Nelson, Secrest & Wardle, Terrance M. Lynch, Detroit, Mich., on brief, for Michigan Commercial Contracting Corp.
    Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and CECIL, Senior Circuit Judge.
   McCREE, Circuit Judge.

This is a diversity action to recover damages for personal injuries. Plaintiffs appeal from the denial of their motion for a new trial, after a jury verdict and judgment for defendants. This appeal presents the questions whether, under Michigan law, the “simple tool” doctrine is a defense in a negligence action brought by a business invitee alleging defendants’ breach of their, duty to provide reasonably safe working implements, and whether, if that doctrine applies, the district'court erred in charging the jury that the ladder furnished appellant Edward McKay was a simple tool as a matter of law. Assuming, but not deciding, that the Michigan Supreme Court would apply the “simple tool” doctrine in an action brought by a business invitee, we hold that the district court’s charge erroneously eliminated from the jury’s consideration the factual question whether the extension ladder involved in this case is, under Michigan law, a “simple tool.” Accordingly, we reverse.

Ford Motor Company (Ford) contracted with Michigan Commercial Contracting Corporation (Michigan) to install a press on Ford’s premises. Edward McKay was sent by the manufacturer of the press, United States Industries, as a service representative, to assist in its installation. An extension ladder, thirty to thirty-five feet in length, had been erected on the side of the press and fastened at the top with wire. While McKay was climbing the extension ladder to perform his installation duties, the ladder suddenly collapsed and McKay fell and suffered serious injuries giving rise to this litigation. The complaint alleged that Ford and Michigan breached their duties to provide reasonably safe premises and implements for McKay.

Defendants moved for summary judgment on the grounds that the “simple tool” doctrine was a defense in an action brought by a business invitee as well as in an action brought by a servant against his master; that under Michigan law, the extension ladder was a “simple tool” as a matter of law; and that plaintiffs were thereby precluded from recovery. The district court denied the motions because it was “reluctant to apply the ‘simple tool’ doctrine to an invitor-invitee relationship in a diversity case where the state courts have not done so.”

At trial, however, the district court charged the jury, in part, as follows:

Now, as to this particular matter, members of the jury, you will notice the Court is using the term equipment and tool, because in law I charge you that a ladder is what the law calls a simple tool. If that tool is simple then the person using that tool has an obligation to inspect it before he uses it. If there is nothing complicated about that tool, if one about to use that tool can observe all of its conditions prior to use, then the law does not impose upon the owner of that particular tool or equipment any obligation to warn, nor does it owe them any obligation to be sure that it is absolutely safe.
If you find there was such a complicated thing and it contained in it some inherently dangerous characteristics, then, of course, the owner of the premises and the person who constructed or erected [it] or whose tool it was owes a duty to advise or warn against the use of any equipment or tool that in and of itself was inherently dangerous in use. (emphasis added).

Plaintiffs excepted to this charge.

Appellants contend, first, that the district court erred in applying the simple tool doctrine to a business invitee. Appellants argue that, although the simple tool doctrine has long been recognized in Michigan, it has never been applied in a case beyond the master-servant relationship. See, e. g., Pawlowski v. Van Pamel, 368 Mich. 513, 118 N.W.2d 395 (1962); Rule v. Guiglio, 304 Mich. 73, 7 N.W.2d 227 (1942); Nichols v. Bush, 291 Mich. 473, 289 N.W. 219 (1939); Kelley v. Brown, 262 Mich. 356, 247 N.W. 900 (1933); Sheltrown v. Michigan Central R. Co., 245 Mich. 58, 222 N.W. 163 (1928); Toth v. Osceola, 180 Mich. 274, 146 N.W. 668 (1914); Nichols v. Pere Marquette R. Co., 145 Mich. 643, 108 N.W. 1016 (1906); Dompier v. Lewis, 131 Mich. 144, 91 N.W. 152 (1902); Wachsmuth v. Shaw Electric Co., 118 Mich. 275, 76 N.W. 497 (1898). Appellees argue, on the other hand, that the Michigan Supreme Court has not held the simple tool doctrine inapplicable to an invitor-invitee relationship; that an invitor’s duties to his invitee are similar to the duties of a master to his servants, see, e. g., Dougherty v. Pratt Institute, 244 N.Y. 111, 155 N.E. 67 (1926) (Cardozo, J.), see generally Prosser on Torts, 3d Ed., pp. 547 & 403, Restatement of Agency 2d, Ch. 14, Tit. C., Introductory Note; and that courts in other jurisdictions have held the simple tool doctrine applicable to a business invitee. Proctor v. Town Club, Inc., 105 Utah 72, 141 P.2d 156 (1943); Anderson v. Moser, 169 Neb. 134, 98 N.W.2d 703 (1959). The difficulty of predicting how the Michigan Supreme Court would resolve this undecided issue is exacerbated because the Michigan Supreme Court has occasionally explained the simple tool doctrine, at least in part, as an application of the defense of assumption of risk, e. g., Rule v. Guiglio, supra, 304 Mich, at 82-83, 7 N.W.2d 227, but cf. Jacob v. City of New York, 2 Cir., 119 F.2d 300 (1941), and in 1965 the defense of assumption of risk was abolished in Michigan, except in cases involving an employment relationship between the parties or an express contractual assumption of risk. Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136 (1965).

We find it unnecessary in deciding this appeal, however, to determine whether, under Michigan law, the simple tool doctrine applies to a business invitee, because we hold that, even if the doctrine is applicable, the district court’s charge was erroneous and requires reversal under appellants’ alternative contention that the extension ladder was not a simple tool as a matter of law in Michigan. In reaching this conclusion, we focus on that part of the charge instructing the jury that “in law I charge you that a ladder is what the law calls a simple tool.”

Michigan courts have often relied upon the following statement of the “simple tool” doctrine:

We have decisions sustaining the doctrine that a master must provide safe appliances, and that he must use reasonable diligence in keeping them in repair. In heavy or complicated machinery, and where the person called upon to use the appliance may not possess the skill to detect unfitness, or the opportunities to do so, the law may require diligence upon the part of the master; but where the ap pliance is a common tool, of which the man who uses it is necessarily well qualified to judge, and who when he uses it has an opportunity to know its condition, a distinction may be made, and the master may rely upon the servant to inform him of the defect, or not use the tool, if it is unsafe. (emphasis added).

Wachsmuth v. Shaw Electric Crane Co., supra, 118 Mich. at 279, 76 N.W. at 498, quoted in Sheltrown v. Michigan Central R. Co., supra, 245 Mich. at 62, 222 N.W. 163 and in Rule v. Guiglio, supra, 304 Mich. at 81, 7 N.W.2d 227.

Rule v. Guiglio, is the leading Michigan decision applying the simple tool doctrine in a negligence action involving a defective ladder. In that case, defendant furnished plaintiff a single section of an extension ladder to use in painting defendant’s house. Plaintiff was injured in a fall when the ladder broke near the lower end. The negligence action was defeated because the Michigan Supreme Court held that the ladder was “of the usual type of wooden construction consisting of two side pieces with connecting rungs,” 304 Mich. at 77-78, 7 N.W.2d at 228, and was, therefore, a “simple tool.” Accordingly, the defendant was under no duty to inspect it. The core of the court’s reasoning was that:

From our study of the record and of authorities bearing upon the question, we are convinced that defendant’s ladder which was used by plaintiff at the time of his accident was a simple tool and that the simple-tool doctrine was properly applicable in determining defendant’s negligence and the risk assumed by plaintiff. The ladder was simple in construction, and the defects, if any existed therein, could have been discovered by plaintiff without special skill or knowledge and without intricate inspection. Plaintiff had used the ladder for some time prior to the accident, and he was as well qualified as defendant to detect defects in such ladder and to judge of the probable danger of using the same. 304 Mich, at 83, 77 N.W.2d at 230.

Applying this reasoning, we find no merit in appellees’ argument that Rule v. Guiglio established the broad proposition that every extension ladder is a simple tool as a matter of law in Michigan. To the contrary, the court in Rule v. Guiglio was careful to explain that plaintiff was in as good a position as defendant to observe any defect. Indeed, the plaintiff in Rule v. Guiglio was using only one section of the extension ladder at the time of the accident, and the court expressly stated: “[I]n considering whether or not the simple tool doctrine is applicable, we shall consider the ladder plaintiff was using as a single ladder from 12 to 16 feet in length.” 304 Mich. at 77, 7 N.W.2d at 228.

In contrast, here we consider a fall from an extension ladder over thirty feet long, with brackets and hooks joining its two segments at a point high above the ground. Any defect in the manner in which these segments had been joined might not have been observable by McKay, even assuming the defect was visible, until he had already reached a dangerous height on the ladder. Under these circumstances, the jury would not have been compelled to reach the conclusion that '•“plaintiff would be as well qualified as the defendant [s] to examine such ladder, to detect defects therein, and to judge the probable danger of using it.” Rule v. Guiglio, supra, 134 Mich, at 80, 7 N.W.2d at 229. Instead, consistent with the rationale of Rule v. Guiglio, supra, whether the extension ladder that collapsed under McKay was a simple tool, under Michigan law, depended on questions of fact for the jury’s determination. In Willard v. Dore, 41 Mich.App. 508, 510, 200 N.W.2d 369, 370 (1972), another case involving the question whether a ladder was a “simple tool”, the Michigan Court of Appeals stated:

In instructing the jury, the trial judge recognized that there was conflicting testimony as to whether or not the ladder was a simple tool. He, therefore, instructed the jury that the determination of whether or not plaintiff was qualified to detect the defects in the ladder, whether or not plaintiff was qualified to judge the probable danger of the defect in using the ladder, and whether or not the defect itself was observable by ordinary observation, were all questions of fact which a jury should determine.

The district court should have charged the jury here in like manner.

Reversed and remanded for a new trial.

      . We defer a decision on this question because the Michigan Supreme Court may speak on this issue before retrial of this case and because the district court in deciding this question should consider any additional guidance from the Michigan courts.

      . The other language in the charge does not, in our view, negate this clear direction that a ladder is a simple tool as a matter of law.

      . The Michigan Supreme Court’s decision in Pawlowski, supra, which held that the extension ladder at issue in that case was a simple tool under the authority of Rule v. Guiglio, is distinguishable because in Pawlowsld the court stressed that the plaintiff in fact observed that the second rung from the bottom of the ladder was defective, and it was this observed defect that allegedly caused plaintiff’s injury.