author: INGRAHAM, Circuit Judge:

text:
    John V. BERTRAND, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.
    No. 72-2955.
    United States Court of Appeals, Fifth Circuit.
    Dec. 27, 1973.
    Rehearing Denied Feb. 4, 1974.
    Vernon C. McManus, Robert K. Guillo-ry, Eunice, La., for plaintiff-appellant.
    James T. Guglielmo, Opelousas, La., for defendant-appellee.
    Before BELL, INGRAHAM and RO-NEY, Circuit Judges.
   INGRAHAM, Circuit Judge:

Plaintiff-appellant John V. Bertrand was injured while working as a welder on an offshore fixed production platform located in the Gulf of Mexico approximately ninety miles off the coast of Louisiana. This offshore structure was owned and operated by the defendant Shell Oil Company. On the day of the accident Bertrand, an employee of Henson Welding Service, had been instructed by Shell to remove certain sections of metal grating which formed the decking on the platform. Bertrand was given two helpers for this task, Roger Brous-sard, a Shell employee, and James Kelie-hor, who was employed by Berry Brothers, a general roustabout contractor. After Bertrand had cut the grating loose from the rig structure, the men lifted it from its previous position and stood it upright. Broussard was assigned to hold the grating — which weighed about 500 pounds and was approximately ten to twelve feet long and four feet high— while Bertrand and Keliehor, straddling the I-beam directly in front of the grating in the open space left by its removal, were smoothing off the surface from which the grating had been removed. Bertrand was seriously injured when Broussard lost his grip on the grating allowing it to fall on top of Bertrand.

Bertrand’s suit against Shell Oil was tried to a jury, and although Shell was found negligent, Bertrand was precluded from any recovery because the jury found him contributorily negligent. Two issues raised on appeal merit discussion: (1) whether the trial court erred in applying the Louisiana contributory negligence rule rather than the federal maritime standard of comparative negligence, thereby barring any reT covery if Bertrand’s own negligence contributed to his injury; and (2) whether the evidence at trial would have supported jury instructions on the last clear chance doctrine, thus producing error from the court’s failure to give the requested instruction. We affirm.

I.

In an attempt to escape the consequences of the contributory negligence rule, Bertrand offers two theories to avoid its application. The first is that under the Outer Continental Shelf Lands Act (43 U.S.C. § 1331 et seq.), as interpreted by Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), state law is to be applied as surrogate federal law only where it is not inconsistent with existing federal law, and therefore comparative negligence, rather than the inconsistent Louisiana rule of contributory negligence, should be used here. This contention is precluded by Dickerson v. Continental Oil Co., 449 F.2d 1209 (5th Cir., 1971). Applying the principles discussed in the Supreme Court’s decision in Rodrigue, the Dickerson court stated:

“We feel Rodrigue compels the application of .Louisiana’s doctrine of contributory negligence in this case. Though maritime law utilizes a doctrine of comparative negligence, the events in question here, as in Rodrigue, all occurred on the platform. As the Supreme Court stated, ‘for federal law to oust adopted state law federal law must first apply.’ Since that court has decided that accidents which occur on such platforms have ‘no more connection with the ordinary stuff of admiralty than do accidents on piers,’ we are compelled to agree that Louisiana law applies.”

449 F.2d at 1219.

Bertrand’s argument is premised on the fundamental misconception that his claim is maritime in nature. Both Rodrigue and Dickerson make it plain, however, that actions arising from accidents on these “artificial islands” are not governed by traditional admiralty law; comparative negligence is therefore not the standard.

Bertrand’s second theory must also be rejected because of the special rules created by the Outer Continental Shelf Lands Act. Section 1333(c) explains that an employee injured as a result of operations on the outer continental shelf as a remedy against his employer under the Longshoremen’s and Harbor Workers’ Compensation Act. Section 905 of this Act “unequivocally provides that the benefits secured to a claimant under [it] shall be the ‘exclusive remedy’ of the claimant against his employer.” Bertrand v. Forest Corp., 441 F.2d 809, 811 (5th Cir., 1971). Bertrand's contention that the Louisiana Workmen’s Compensation Act is somehow applicable to prohibit Shell from asserting contributory negligence as a defense to liability is therefore untenable. His only remedy against Shell is that he has pursued here, and as we have already noted, the usual Louisiana rules including contributory negligence govern this action.

II

A closer question is raised by Bertrand’s contention that the trial court erred in refusing to instruct the jury on the last clear chance doctrine. Characterizing the facts here as a “classical” situation for the application of this legal device which permits a plaintiff to avoid the consequences of his own negligence, Bertrand argues that there is evidentiary support for such an instruction in the record. We disagree; the facts here represent the antithesis of a classical last clear chance case, if indeed there is such a thing. When viewed against the applicable Louisiana law, the factual context present here supports the district court’s conclusion that the issue was not raised.

The criteria necessary for the operation of the doctrine have been clearly established by the Louisiana courts; (1) the plaintiff, through his own negligence, must be in a perilous position of which he is unaware or from which he is unable to extricate himself; (2) the defendant must be actually aware of plaintiff’s perilous condition or must be in such a position that he should have discovered plaintiff’s situation; and (3) defendant must have been able, either at the time he discovered or should have discovered plaintiff’s position, to avoid injuring him by the exercise of ordinary care. Bergeron v. Dept. of Highways, 221 La. 595, 60 So.2d 4 (1952); Jackson v. Cook, 189 La. 860, 181 So. 195 (1938); Rottman v. Beverly, 183 La. 947, 165 So. 153 (1936); McDonald v. Scotlandville Fire Pro. Dist. Com’n., 222 So.2d 324 (La.App. 1969). Unless all three of these elements are present a jury question is not raised. See Bergeron v. Dept. of Highways, supra.

In retrospect the first element is easily satisfied as a result of the jury’s conclusion that plaintiff was contributorily negligent; of necessity his negligent act was placing himself beneath the 500 pound grating held at his direction by one man. That he was unaware of this perilous position is not contested.

Evidence was not introduced, however, to fulfill either the second or third elements of the formula. The first question in this regard is whether Shell’s employee Broussard knew or should have known of plaintiff’s perilous position. Broussard was a “greenie” — a worker not yet initiated into the ways of an offshore rig employee. He had been with Shell for less than a month prior to the accident, and although Bertrand was not his boss in a strict sense, it is clear that Bertrand was in charge of the work the three men were doing on the day of the accident. The job was begun early that same morning, but the accident did not occur until around 4:30 in the afternoon. There is no testimony that any procedure other than that being used at the time of the accident had been used earlier in the day. Broussard was given no indication that the procedure being used on this occasion was unusual, out of the ordinary or particularly dangerous, and he had not done this type of work in a different manner at a previous time. Moreover, there is no evidence indicating that Broussard encountered difficulty performing his assigned duties at any time earlier in the day. Plaintiff’s counsel attempted to elicit testimony that Broussard was tired and that this was why he dropped the grating. The only conclusion supported by the evidence, however, is that Brous-sard’s knowledge that he was going to drop the grating and the actual falling of it coalesced instantaneously. Whether Broussard’s negligence is considered as the initial act of holding the grating or the ultimate act of dropping it, there is no evidence which could support a jury’s decision that he should have realized he was going to drop the grating and thus either knew or should have known that plaintiff was in a perilous position. Finally, once Broussard realized he was going to drop the grating, it was too late for him to do anything to avoid the accident, thus leaving the third element unfulfilled.

We have found only one case with facts even remotely analogous to those here, and it supports the district court’s conclusion to withhold an instruction on the last clear chance doctrine. In Employers Liability Assurance Corp. v. Butler, 318 F.2d 67 (5th Cir., 1963), the trial court had instructed the jury on the last clear chance doctrine, and a verdict was returned for plaintiff Butler. Plaintiff’s fifteen year old daughter Brenda was burned to death while participating in a talent show sponsored by the defendant’s insured, Radio Station WYLD in New Orleans. Brenda was scheduled to perform a fire dance; she had been encouraged and aided in this endeavor by one of the station’s disc jockeys who was serving as master of ceremonies at the talent show. Immediately prior to her act, Brenda had discarded the special skirt originally designed for the fire dance and had changed to a grass hula skirt. She apparently believed that the burning alcohol would not ignite the skirt because of the low temperature at which it burned. But as soon as the act began the skirt was ignited, consuming her in flames.

The crucial question on appeal was whether the disc jockey-master of ceremonies had the last clear chance to avoid the accident. We reversed, holding that the last clear chance instruction should not have been given because the plaintiff failed to satisfy the second requirement for recovery. “Not only must the injured party be unaware, albeit negligently/of his peril, the defendant must know of the peril and do nothing to prevent injuring the plaintiff. Where ‘the evidence does not show that defendant actually discovered or should have discovered plaintiff’s peril in time to avoid the accident,’ there is no liability.” Id. at 71-72. On the basis of the following analysis the court concluded that the standard had not been met:

“In the present case there is nothing in the evidence to show that McKinley [the disc jockey] was any more aware than Brenda of the danger. He had seen a ‘fire dance’ done in a night club and had assumed that it could be done safely. He had not seen her practice the dance at rehearsals and did not know that she planned to step into the fire rather than dance behind it. Moreover, at the time of the performance the lights were dim, and McKinley did not particularly notice Brenda.”

Id. at 72.

Judge Wisdom, writing for the court, then reasoned that although the disc jockey “might have been negligent in not observing more closely Brenda’s costume and her preparations for the dance, the plaintiff cannot demand of the defendant a higher standard of care in noticing and evaluating the surrounding circumstances than the injured party herself.” Id.

In a similar manner, to hold that Shell Oil could be liable here under the last clear chance doctrine would require us to demand of Broussard, an inexperienced worker under plaintiff’s charge on the day of the accident, “a higher standard of care in noticing and evaluating the surrounding circumstances” than Bertrand exercised for his own safety. As did the Butler court, we believe that “[t]he Louisiana courts would not allow the use of the last clear chance doctrine to impose liability in this situation, see, e. g., Thomas v. Lumbermen’s Mutual Cas. Co., La.App., 1962, 146 So.2d 275.” 318 F.2d at 73. For this reason and because of a complete absence of time for Broussard to have prevented the accident once he became aware he was going to drop the grating, we hold that the evidence failed to raise a last clear chance issue.

The judgment of the district court is therefore affirmed.

      . It is uncertain whether Keliehor and Broussard lifted the grating alone, or also had help from Bertrand.

      . Other issues are that there is no evidence to support the jury’s conclusion that Bertrand was contributorily negligent and that the court erred in the manner in which it framed the special interrogatories submitted to the jury. We have read the record and are convinced that there is evidentiary support for the jury’s decision. Moreover, there is no merit to Bertrand’s argument regarding the special interrogatories and thus further discussion of these points is unnecessary.

      . With the exception of one case, to he discussed in the text infra, all of the Louisiana based cases we have read which discuss the doctrine of last clear chance arise in some manner from the operation of a motor vehicle. If pressed to apply a “classical” label to a particular fact situation, we would choose a case in which a vehicle collides with a pedestrian. Other recurring examples are automobiles colliding with automobiles, and automobiles colliding with trains or vice versa.

      . A plaintiff’s negligence may continue until the moment of the accident and the last clear chance doctrine will nonetheless permit him to recover if the defendant appreciated his peril or should have done so in time to avoid injuring him. Jackson v. Cook, 189 La. 860, 181 So. 195 (1938); see, e. g., Moore v. Nola Cabs, 70 So.2d 404 (La.App. 1954).

      . The addition of the should have known aspect of the last clear chance doctrine as formulated by the Louisiana courts was accomplished in Jackson v. Cook, supra. The source for this addition was the recognition of a motorist’s duty to keep a lookout for persons who might be in danger by the operation of a motor vehicle. As explained by the Louisiana Supreme Court, “the first duty of those who operate engines or motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger.” Id. at 197. Moreover, “the duty of those in charge of motor cars and engines to look ahead and observe never ceases; that what they can see they must see and in legal contemplation they do see; that their failure to see what they could have seen by the exercise of due diligence does not absolve them from liability.”- Id.

      . See Employers Liability Assurance Corp. v. Butler, 318 F.2d 67 (5th Cir., 1963); Ballard v. Piehler, 98 So.2d 273 (La.App.1957). Compare Conlon v. Tennant, 110 U.S.App. D.C. 140, 289 F.2d 881 (1961) (issue of last clear chance raised by defendant’s testimony regarding the events immediately preceding his collision with pedestrian plaintiff), with Allen v. Texas & Pacific Ry., 195 F.2d 545 (5th Cir., 1952) (Louisiana doctrine of last clear chance not applicable because no record evidence to support conclusion that defendant was aware or should have been aware that plaintiff was in perilous position).

      . See James v. United States, 252 F.2d 687 (5th Cir., 1958) (Louisiana case); Lapuyade v. Pacific Employers Ins. Co., 202 F.2d 494 (5th Cir., 1953) (Louisiana case); McDonald v. Scotlandville Fire Pro. Dist. Com’n, supra; Maryland Cas. Co. v. Allstate Ins. Co., 96 So.2d 340 (La.App.1957). The following statement is particularly appropriate to the case at bar:
      “We read the evidence as did the trial judge, namely, there was not the requisite room in it for the play of last clear chance. That doctrine has generally been regarded as an ameliorative one applicable in the circumstances where both parties to an accident have some portion of culpability, but the defendant is shown to have had some capacity to avert the disaster by alternatives reasonably available at the last moment. [Omitting citation.] And, as we said in that case, where the doctrine might otherwise be applicable, it is not so ‘if the emergency is so sudden that there is no time to avoid the collision, for the defendant is not required to act instantaneously.’ ”
      Law v. Virginia Stage Lines, Inc., 144 U.S. App.D.C. 115, 444 F.2d 990, 994 (1971).


source: Caselaw Access Project

author: TUTTLE, Circuit Judge:

license: Public Domain

text:
    Nazareth GATES et al., Plaintiffs-Appellees, and United States of America, Plaintiff-Intervenor-Appellee, v. John COLLIER, Superintendent, Mississippi State Penitentiary, et al., Defendants-Appellants.
    No. 73-1790.
    United States Court of Appeals, Fifth Circuit.
    Dec. 5, 1973.
    A. F. Summer, Atty. Gen. of Miss., William A. Allain, Asst. Atty. Gen., P. Roger Googe, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., for defendants-appellants.
    Roy S. Haber, Native American Rights Fund, Boulder, Colo., Frank R. Parker, Jackson, Miss., Edward J. Reilly, New York City, for plaintiffs-appel-lees.
    Michael Davidson, Jesse H. Queen, Thomas R. Sheran, U. S. Dept, of Justice, Civil Rights Div., Washington, D. C., H. M. Ray, U. S. Atty., Oxford, Miss., for intervenor.
    Before TUTTLE, BELL and GOLDBERG, Circuit Judges.
   TUTTLE, Circuit Judge:

This appeal deals only with the correctness of the judgment of the trial court awarding attorney' fees to the plaintiffs in this prisoner suit. It grew out of, and is a companion case to, Gates, et al., and United States v. John Collier,' Superintendent, etc., No. 73-1023, which is under submission to this Court.

In the original complaint, filed by counsel now seeking counsel fees, and later supported by the United States of America, which intervened in the trial court the principal allegations were:

There are two classes for whose benefit suit was brought by the named plaintiffs: (1) a class composed of all present and future inmates of Mississippi State Prison (Parchman); (2) a class composed of present and future black inmates of Parchman.

Each class alleged that it was subjected to the deprivation of rights and to conditions and practices which amounted to cruel and unusual punishment, that it was subjected to censorship of its mail and that it was deprived of the due process of law in violation of the first, eighth and fourteenth amendments. Each class further alleged that it had been deprived of the equal rights under law guaranteed to it by 42 U.S.C.A. § 1981, of the rights, privileges and immunities guaranteed to it by 42 U.S.C.A. § 1983, and had been subjected to a conspiracy to interfere with its civil rights in violation of 42 U.S.C.A. § 1985.

In addition, the class composed of present and future black inmates alleged it was deprived of its fourteenth amendment right to equal protection by virtue of being segregated from other inmates and of being incarcerated under worse conditions than other inmates.

Plaintiffs sought an injunction against the deprivation of such rights during their incarceration and against certain practices and conditions existing at Parchman. Plaintiffs also sought a declaratory judgment that the deprivation of such rights and the continuation of such practices and conditions were unconstitutional.

All parties conducted extensive pretrial discovery proceedings. Plaintiffs’ counsel expended considerable time, money and energy gathering proof. His affidavit in the court below details all the hours and services he was forced to expend on plaintiffs’ behalf to prosecute a wholly unnecessary action in the face of an unyielding defense. On May 11, 1972, four days before trial, counsel for all parties agreed to waive presentation of evidence in open court and to submit the case on the record including pleadings, stipulations, depositions, interrogatories and answers, offers of proof, factual summaries, proposed trial plans, ev-identiary synopses, photographs, exhibits, reports and other documentary evidence assembled by the parties. All of these items were admitted into evidence, defendants stipulating that they would, not contest the facts set forth therein.

Moreover, the Governor himself, seeking to limit the record, asked the Court: “Isn’t there enough of the incriminating facts in these depositions and interrogatories to give the Court adequate grounds to find a conclusion of fact that the first amendment and all other constitutional provisions,have been violated . ?” The Governor of the State of Mississippi in fact conceded: “We are, in effect, Your Honor admitting that the constitutional provisions have been violated.” This was well over a year after the action was brought and years after the major constitutional violations had occurred.

Among the district court’s findings, Gates v. Collier, 349 F.Supp. 881 (N.D. Miss.1972), were the following:

1. The policy and practice at Parchman has been and is to maintain a system of prison facilities segregated by race through which black inmates are subject to disparate and unequal treatment. (Finding # 7)

2. The housing units at Parchman are unfit for human habitation. Facilities for the disposal of human waste at all camps are shockingly inadequate and present an immediate health hazard. Contamination of the prison water supply caused by inadequate sewerage has led to the spread of infectious diseases. (Finding #8)

3. The medical staff and available facilities at Parchman fail to provide adequate medical care for the inmate population. (Finding # 11)

4. All inmates, except those confined in the Maximum Security Unit, are housed in open barracks known as “cages.” The risk of personal injury created by cage confinement is increased by (a) defendants’ failure to classify inmates, (b) the prison's reliance on inmates rather than trained guards, and (c) the failure of prison authorities to confiscate weapons. (Finding # 12)

5. Armed inmate trusties, selected without objective criteria or uniform standards and insufficiently trained to cope with their duties, perform the primary guard function at Parchman. Apart from abusing their authority and engaging in loan-sharking, extortion and other illegal conduct, the trusties at Parchman have shot, maimed or otherwise physically maltreated scores of inmates subject to their control. (Findings # 13 and #14)

6. Inmates at Parchman relegated to the punishment side of the Maximum Security Unit have often been placed in the “dark hole” without clothes, hygiene materials or adequate food for periods of 48 to 72 hours. (Finding # 17)

7. Physical brutality is regularly inflicted on inmates by prison authorities. (Finding # 18)

8. Inmates subject to disciplinary action for alleged violations of prison rules are deprived of any semblance of procedural or substantive due process. (Findings # 19 and #20)

9. Illegal censorship of prisoners’ mail is commonplace. (Findings # 21)

Following a hearing on the proper form of relief, the court entered judgment on October 20, 1972, Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972), restraining defendants and their agents from

“performing, causing to be performed or permitting to continue acts, practices and conditions found to exist in connection with the maintenance, operation and administration of the Mississippi State Penitentiary at Parch-man, Mississippi, in violation of the First, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.” 349 F.Supp. at 898.

The court’s judgment, in conformity with its findings and conclusions, specifically enjoined continued constitutional violation and mandated defendants to rectify each unconstitutional condition and practice.

Defendants have appealed from the judgment (Appeal No. 73-1023 before this Court). Having admitted to all the facts and conceding the constitutional violations, defendants have nevertheless appealed from the judgment on the ground that the complaint fails to state a recognized cause of action. Furthermore, defendants continually sought extensions and delays from compliance with the district court’s orders. Defendants’ submission of plans required by the district court’s order have been found to be inadequate even after substantial delays and defendants continue to delay and obstruct any improvement in the conditions at Parchman. Such delays have necessitated the expenditure of additional time and money by plaintiffs’ counsel.

On July 25, 1972, while the case was pending before the district court, plaintiffs’ counsel moved for an award of attorney’s fees and expenses. Defendants opposed the motion. In support of the motion plaintiffs’ counsel filed a memorandum of law, an affidavit detailing his hours, the services performed and the expenses incurred, and the affidavits of two experienced attorneys practicing in the same area regarding the reasonableness of the requested fees. Plaintiffs’ counsel’s affidavit shows the many hours of work required to marshall all the evidence which forced defendants to concede and forego trial.

On February 14, 1973, the district court awarded plaintiffs’ counsel $41,750 for services and $10,986.05 for costs and expenses incident to maintenance of the action. The award did not run against the defendants personally or individually but in their official capacities and was directed to be paid from the operating funds of Parchman. The defendants have now appealed from this award of attorney’s fees and expenses.

The parties do not dispute the correctness of the trial court’s standard for determining whether attorney’s fees should be awarded; the court based its decision on a finding that the defendants’ conduct was violative of the plaintiffs’ constitutional rights and that their unlawful conduct was “unreasonably and obdurately obstinate.”

There can be no question about the adequacy of the trial court’s findings to warrant the awarding of attorney’s fees:

“In the instant case, we have no 0 difficulty in finding that defendants’ actions were unreasonable and obdurately obstinate. From commencement of the suit on February 8, 1971, defendants staunchly denied the existence of unconstitutional practices and conditions at Parchman. Defendants continued to adhere to this position at several lengthy evidentiary hearings of an interlocutory nature. The position thus consistently maintained by defendants compelled plaintiffs’ attorney to expend time and expenses which otherwise would not have been incurred. Consequently in preparation of plaintiffs’ case, plaintiffs’ attorney engaged in extensive pre-trial discovery, made numerous trips to Parchman, interviewed hundreds of inmates, and submitted a plethora of motions and accompanying legal mem-oranda. We are convinced that only because of the overwhelming magnitude of evidence gathered by plaintiffs’ attorney in cooperation with the Department of Justice in support of the allegations contained in the complaint did defendants in effect recognize the futility of a full evidentiary hearing and submit the case on a virtually agreed record.
******
“As set forth in this court’s Findings of Fact, the unconstitutional conditions and practices at Parchman have long existed as a result of public and official apathy, despite the notoriety of matters affecting prison administration stemming from prior reports to the State Legislature and widespread publicity of the news media. The court in its previous findings simply declared facts that were well documented and known to all interested in the subject. Constitutional rights of inmates may not be thwarted or ignored because of frequent changes in prison personnel and officials. We now hold that the state of the law in the area of prisoner rights was sufficiently settled so that it should have been unnecessary for this action to be brought; this suit was necessary only because of defendants’ unreasonable refusal to comply with accepted constitutional principles. We are further convinced that the unnecessary delay, extraordinary efforts and burdensome expenses incurred incident to the resolution of this case were occasioned because of' defendants’ maintenance of their defense in an obdurately obstinate manner. Thus, plaintiffs’ attorney is entitled to reasonable fees and expenses.”

See on the general issue of attorney’s fees in civil rights litigation Horton v. Lawrence County Board of Education, 449 F.2d 793 (5th Cir. 1971); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971).

The only issue of concern in this appeal arises from the fact that the trial court fashioned its decree for attorney's fees in a manner that caused the defendants to challenge .this award as being prohibited by the principle of sovereign immunity and, by analogy, to the eleventh amendment to the United States Constitution. See Hans v. State of Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1889). This contention is a familiar one in cases in which courts have entertained actions against state officials, boards and commissions in equity. See, e.g., Orleans Parish School Board v. Bush, 242 F.2d 156 (5th Cir. 1957) and the many school cases subsequently decided by this Court.

In Sims v. Amos, 336 F.Supp. 924, 340 F.Supp. 691 (M.D.Ala.1972), aff’d., 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972), the District Court for the Middle District of Alabama dealt with the award of attorney’s fees and expenses incurred in a suit against the Governor, state legislators, the attorney general and the secretary of state of Alabama. The Court expressly held against the “Alabama State Legislators, the Governor, the Attorney General and the Secretary of State.”

In their jurisdictional statement to the Supreme Court, the defendants in Sims stated:

“the award to the plaintiffs of their attorney's fees and expenses incurred and in the taxing of these items as costs against the defendants who are elected state officials sued in their official capacity . . . was tantamount to the award of a money judgment against the State of Alabama in direct violation of the doctrine of sovereign immunity.”

The Supreme Court affirmed the judgment of the three-judge district court without opinion. In the California case of La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972), the court noted:

“That federal courts have awarded attorney’s fees to successful litigants against state officers without statutory authority cannot be denied. See, e. g., Sims v. Amos, supra, (Governor of Alabama and Secretary of State) Wyatt v. Stickney, 344 F.Supp. 373 (M.D.Ala. decided April 13, 1972), (State regulatory agency). See also, Cooper v. Allen, supra, (Mayor of Atlanta, Georgia); Brewer v. School Board of Norwalk (sic), supra [456 F.2d 943] (school board); Hammond v. Housing Authority & Urban Renewal Agency of Lane County, 328 F. Supp. 586 (D.Or.1971), (municipal housing authority). But of course, the eleventh amendment has been read not to apply to local bodies. Lincoln County v. Luning, 133 U.S. 529, 10 S. Ct. 363, 33 L.Ed. 766 (1890).
“Since we conclude as the court did in Sims that the state may no more immunize an individual from costs incident to an injunction than it may insulate him from the injunction itself, we find that sovereign immunity does not bar an award of attorney’s fees against Chief Engineer Legarra. . . . ” 57 F.R.D. at 101-102.

This Court has said that in such a suit as this the award of attorney’s fees is not an award of damages against the State, even though funds for payment of the costs may come from the state appropriations. In Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir. 1970) we said:

“Section 1983 was designed to provide a comprehensive remedy for the deprivation of federal constitutional and statutory rights. The prayer for back pay is not a claim for damages, but is an integral part of the equitable remedy of injunctive reinstatement.” 427 F.2d at 324.

Although the trial court had the power to assess attorney’s fees and expenses against the individual defendants found to have engaged in the unconstitutional conduct, we think it does not vitiate the award because the trial court prescribed that this part of the costs were to be payable “from funds which the Mississippi Legislature, at its 1973 Session, may appropriate for the operation of the Mississippi State Penitentiary,” and were not to be “the personal, or individual, liability of the varied defendants or any of them.” See also, the following cases which have dealt with this question: La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972); Brewer v. School Board of City of Norfolk, Va., 456 F.2d 943 (4th Cir. 1972) cert. den., 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136 (1972); Thompson v. Richland Parish Police Jury, 5 Cir., 478 F.2d 1401 [No. 72-3413, June 13,1973]; Wyatt v. Stickney, 344 F.Supp. 387 (M.D.Ala.1972).

The judgment appealed from is affirmed.

      . While we adopt the standard agreed to by the parties and applied by the district court, we note that different standards than ‘unreasonably and obdurately obstinate’ have occasionally been found applicable by federal courts. One such standard is that plaintiff’s counsel is entitled to attorneys’ fees on the private attorney general theory.
      The private attorney general theory is derived from the Supreme Court opinions in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263; and Mills v. Electric Auto-Lite Co., 396 U.S. 375 at 389-397, 90 S.Ct. 616, 24 L.Ed.2d 593. The theory is that private plaintiffs have aided in effectuating important Congressional and public policies. Attorneys fees have not only been granted in suits brought under the Civil Rights Acts, 42 U.S.C.A. §§ 1981, 1982, 1983, e.g., Sims v. Amos, 336 F.Supp. 924 (M.D.Ala.1972) (3 judge court) (§ 1983) ; Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) (§ 1981); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971) (§ 1982); Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) (§ 1982); Jinks v. Mays, 350 F.Supp. 1037 (N.D.Ga.1972) (§§ 1981-1983); N.A.A.C.P. v. Allen 340 F.Supp. 703, 708-710 (M. D. Ala.1972) (§ 1983), but also under various other federal statutes, e.g., Yablonski v. United Mine Workers, 151 U.S.App.D.C. 253, 466 F.2d 424 (1972), cert. denied, 412 U.S. 918, 93 S.Ct. 2729, 37 L.Ed.2d 144 (1973) (Labor-Management Recording and Disclosure Act); La Raza Unida v. Volpe, 57 F.R.D. 94 (N. D.Cal.1972) (various federal transportation statutes).

      . In which event, of course, everyone knows they would be “bailed out” by the State.

      . No contention is made by the appellants that the other elements of the costs of litigation, perhaps quite substantial, could not be taxed in the manner in which the attorney’s fees and expenses were charged,


author: WILLIAM E. MILLER, Circuit Judge.

text:
    Christine H. PATTERSON, Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, a foreign corporation, Defendant-Appellant.
    No. 73-1076.
    United States Court of Appeals. Sixth Circuit.
    Argued Oct. 2, 1973.
    Decided Dec. 28, 1973.

      Bodman, Longley, Bogle, Armstrong & Dahling by James M. Baysinger, James Robert Buschmann, Detroit, Mich., on brief, for defendant-appellant.
    Charles E. Lampert, David M. Fried, Southfield, Mich., on brief, for plaintiff-appellee.
    Before MeCREE and MILLER, Circuit Judges, and KRUPANSKY, District Judge.
   WILLIAM E. MILLER, Circuit Judge.

This appeal involves the liability of a railroad under the Federal Employers Liability Act, 45 U.S.C. Sec. 51 et seq., resulting from a contagious disease contracted by a clerical employee from a fellow employee. Plaintiff-appellee, Christine Patterson, was employed in January, 1966, by defendant-appellant, Norfolk and Western Railway Company, as a stenographer-clerk and was assigned to its offices in Detroit, Michigan. She worked at a desk directly behind a fellow clerical employee until he was hospitalized in January, 1968 with advanced pulmonary tuberculosis. After the hospitalization, the appellant suggested that all employees who had been in close proximity to the afflicted employee should have a physical examination. Acting on this suggestion, appel-lee had a medical examination and was found to have pulmonary tuberculosis. She later brought an action against the railroad, alleging that she had contracted the disease from her fellow employee near whom she was required to work and that the railroad was liable under the F.E.L.A. for negligently failing to provide her with a safe place in which to work. The district court submitted the case to a jury which returned a verdict in her favor in the amount of $45,000.00. The railroad perfected its appeal to this Court.

Appellant phrases the first issue as follows:

“Under the Federal Employers’ Liability Act is a railroad under a duty to its employees to remove from his post a fellow employee who is afflicted with a contagious but nonoccupational disease, until the railroad actually perceives the potential for danger in him?”

In arguing that the trial court erroneously answered this question in the affirmative, the railroad points out that the afflicted employee’s condition con-cededly did not result from his employment. A further facet of the railroad’s argument is that the law imposes no requirement that a reasonably prudent employer must equip himself with special knowledge or expertise in the field of contagious diseases not indigenous to the employer’s business. The railroad insists that liability can arise only if it should happen to acquire actual knowledge of the existence of the disease in an employee, or special knowledge from the use of which it can reasonably perceive the potential for danger. “Then and only then,” it is insisted, “does the duty of ordinary care for the safety of other employees arise.”

We are unable to find support for this restrictive view of a railroad's duty under the F.E.L.A. Case law clearly establishes that under the Act liability for negligence attaches if the railroad “knew, or by the exercise of due care should have known” of the danger or risk to an employee. Urie v. Thompson, 337 U.S. 163, 178, 69 S.Ct. 1018, 93 L.Ed. 1282 (1948). The applicable standard or test for negligence under this statute, as the trial court charged, is simply the failure to use ordinary care under the circumstances in the management of the railroad’s affairs. See Harrison v. Missouri P.R. Co., 372 U.S. 248, 83 S.Ct. 690, 9 L.Ed.2d 711 (1963), and Gallick v. Baltimore & O.R. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed. 2d 618 (1963). The trial court properly rejected instructions which would have gone beyond this measure of care and would have required the jury to find actual knowledge of the disease or knowledge of special facts from which the railroad could reasonably perceive the potential for danger. Ample evidence was presented to justify the court in submitting to the jury the question of ordinary care. Without detailing all of the evidence, it was shown that appellee was required to work near the afflicted employee; and that such employee for a considerable period of time exhibited a pallid appearance and gave other signs of illness, including constant coughing and loss of weight. The jury could reasonably find that the railroad with admitted knowledge of these facts failed to meet the required standard of ordinary care. That the appellee did in fact contract the disease from her fellow employee in the course of her employment is not seriously questioned. We find it to be immaterial, insofar as the railroad’s duty of care is concerned, that the environment in which appellee worked —that of ‘a typical downtown office staffed by white collar workers — -may have been such that it carried, in and of itself, no risk of contracting pulmonary tuberculosis. The crucial test is a failure to exercise the care of an ordinary prudent person under the particular circumstances. The issue was for the jury to resolve.

Did the trial court, as appellant insists, err in failing to instruct the jury on the law of contributory negligence?

Under the F.E.L.A., contributory negligence is not a defense but must be considered in diminution of damages. Rogers v. Missouri P.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1956). The appellant argues that the appellee was in a position to observe the symptoms of the fellow employee and was therefore contributorily negligent in not perceiving the possible danger. Although there is evidence that the appellee observed her fellow employee’s apparent weight loss and weak, pale appearance, she did report his noticeable appearance to the office manager. This was all that she reasonably could have done. We do not deem these facts sufficient to raise a substantial issue of contributory negligence, with the result that the trial court was not in error in his denial of the requested charge. At best, appellee’s conduct may arguably have constituted an assumption of the risk, “every vestige” of which has been eliminated by the F.E.L.A. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943); cf. Dixon v. Penn Central Co., 481 F.2d 833 (6th Cir.).

Another issue raised on appeal is whether the trial court erred in admitting into evidence the medical records of the afflicted fellow employee.

In preparation for trial, a law clerk employed by the appellee’s attorney obtained from the fellow employee a consent to the examination of his hospital medical records. The fellow employee gave his consent under the assumption that if he refused to do so, the appellee could obtain the records by subpoena. The trial judge held that despite that misapprehension the fellow employee had waived the physician-patient privilege to which he was entitled under Michigan law (M.C.L. 600.2157; Stat. Ann. 27A.2157) and that the medical records were admissible as evidence. Although the trial court focused on waiver of the privilege, the real issue is whether this state-created privilege is applicable in a federal court trial under the circumstances of the present case.

Under Rule 43(a) of the Federal Rules of Civil Procedure, the so-called “maximum admissibility” rule, evidence may be received in federal court if it is admissible under any of three tests: (a) under a federal statute, (b) under federal equity precedents, or (c) under the rules of evidence of the state in which the court sits. Wright v. Wilson, 154 F.2d 616 (3rd Cir.), cert. den., 329 U.S. 743, 67 S.Ct. 50, 91 L.Ed. 640 (1946). In this case, the privilege is a state-created one which, if enforced, would exclude the contested evidence. Under the policies of the maximum admissibility rule, some federal courts, in cases involving federal questions, independently weigh conflicting federal and state interests before enforcing state-created privileges. In Garner v. Wolfin-barger, 430 F.2d 1093, 1098 (5th Cir. 1970) , the court stated :

“This is a federal question case (with ancillary state aspects) rather than a diversity case. Such actions are predicated on federal law, embodying federal policies. Enforcement of these policies demands that the federal courts apply their own rules of privilege where substantial state interests are not infringed.”

In any given instance a special federal interest in seeking the truth in a federal question case may require admissibility of evidence despite the existence of a state rule holding such evidence to be privileged. Fears v. Burris Manufacturing Co., 436 F.2d 1357 (5th Cir. 1971); Carr v. Monroe Manufacturing Co., 431 F.2d 384 (5th Cir. 1970). This Court has held that a state-created privilege which would have excluded a wife’s testimony was not absolutely binding in a federal question case. United States v. Brunner, 200 F.2d 276 (6th Cir. 1952):

Finally, we hold in the light of modern concepts that the evidence of Mrs. Brunner and the threat of Brunner to impose silence upon his wife is not in the present circumstances privileged. This is a civil case based upon a record necessarily relied upon by Brunner. He must stand or fall by what it discloses. We said in Fraser v. United States, supra [145 F.2d 145, 6 Cir.], “a disclosure once made is irrevocable. It is public property and may not be recalled.” To recognize the privilege in present circumstances is to expand it beyond the considerations that gave it birth.

The state interest in the physician-patient privilege is the protection of confidentiality to encourage full disclosure by the patient to the physician so that adequate and complete medical treatment may be obtained. The medical records of the fellow employee were released by him to the plaintiff’s attorney. With this disclosure the substantial state interest in protecting the confidentiality of the records was vitiated. The federal interest of seeking the truth in federal question cases easily tips the scales on the facts of this case against the state interest. Thus the trial court correctly admitted the records in evidence. We reach this result without detei’mining whether a consent given under the particular facts presented here is a valid waiver of a state-created privilege where federal policies are not involved.

A further issue before us is whether hospital bills incurred in the treatment of an injury due to the employer’s negligence and paid for by the employee’s hospitalization insurance are recoverable as damages from the employer in an F. E.L.A. action where the employer has provided such insurance to the employee free of charge.

The general rule under the F.E. L.A. is that an employee may recover damages from the employer even though the damages have already been paid by insurance if the insurance is a “collateral source.” Haughton v. Blackships, Inc., 462 F.2d 788 (5th Cir. 1972). The court in explaining the collateral source rule in Haughton, stated:

“The policy considerations for the collateral source rule are apparent. On the one hand, an employer-tort-feasor who voluntarily undertakes to indemnify itself against liability by payment into a fund for that purpose, should not be penalized by permitting the plaintiff a double recovery of his benefits under the fund as well as his full measure of damages. On the other hand, where the employer-tort-feasor makes payment directly or indirectly into a fund established for an independent reason, or where such payment by the employer should be considered in the nature of a fringe benefit or deferred compensation, the employer should not be entitled to benefit by setting off such income in mitigation of his responsibility as a tortfeasor.”

Id. at 791.

The appellee’s hospital bills were paid under an insurance policy supplied to her by the appellant who paid all of the insurance premiums. The appellant urges that the policy was purchased to indemnify the company from liability for injuries to employees. The payment of premiums does not prevent the insurance policy from being classified as a collateral source. Application of the collateral source rule depends more upon the character of the benefits than upon the source of the funds. United States v. Price, 288 F.2d 448 (4th Cir. 1961). See also Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525 (9th Cir. 1962); Hall v. Minnesota Transfer Ry. Co., 322 F.Supp. 92 (D. Minn.1971). In Wagner v. Reading Co., 428 F.2d 289 (3rd Cir. 1970), the issue of whether insurance payments were a collateral source was decided in favor of the employer. In that case, however, the employer directly paid the plaintiff’s medical expenses and then was reimbursed by its own insurance carrier. The appellant here paid premiums directly to the insurer, much as an employer might at the direction of an employee deduct money from wages and pay insurance premiums on a group insurance policy. The appellee was the insured under the policy in this case, not the appellant. At least for purposes of analysis under the collateral source rule, the policy may best be classified as a fringe benefit given in part consideration for the appellee’s services as an employee. Such insurance was thus a collateral source. The trial court, therefore, was not in error in refusing to admit evidence pertaining to it.

We have considered the other issues raised by the appellant and find them to be without merit.

Affirmed.

      . This evidence would be admissible subject to the same restrictions as any other documentary evidence under the proposed Federal Rules of Evidence. The Advisory Committee’s note to Rule 504 of the new Federal Rules of Evidence, approved by the Supreme Court of the United States, but not yet effective, stated:
      “The rules contain no provision for a general physician-patient privilege. While many states have by statute created the privilege, the exceptions which have been found necessary in order to obtain information required by the public interest or to avoid fraud are so numerous as to leave little if any basis for the privilege.”
      Since the Federal Rules of Evidence are not in effect, we must of course look elsewhere to resolve this problem.

      . Many federal courts in non-diversity cases have reached the same result by undertaking to determine the question of privilege with little or no reference to the state law. See Natta v. Hogan, 392 F.2d 686 (10th Cir. 1968); Radiant Burners, Inc. v. American Gas Ass’n., 320 F.2d 314 (7th Cir.), cert. den., 375 U.S. 929, 84 S.Ct. 330, 11 L.Ed.2d 262 (1963); United States v. United Shoe Machinery Corp, 89 F.Supp. 357 (D.Mass. 1950).

      . The appellant attempts to distinguish Sail because the insurance policy in that case was supplied by the employer as the result of a collective bargaining agreement while in our case the company acted unilaterally without the compulsion of a union contract. In the context of this case we find this distinction to be immaterial.


author: LAY, Circuit Judge.

text:
    Leroy C. COOPER, Appellant, v. A. L. LOCKHART, Superintendent of the Cummins Unit of the Arkansas Department of Corrections; Terrell Don Hutto, Individually and as Commissioner of Corrections for the State of Arkansas, Appellees. Harry L. WILLIAMS, Jr., Appellant, v. A. L. LOCKHART, Superintendent, Cummins Unit, Arkansas Department of Corrections, Appellee.
    Nos. 73-1536 and 73-1584.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1973.
    Decided Dec. 27, 1973.

      John T. Lavey, Little Rock, Ark., for appellant in No. 73-1536.
    Harry Williams, Jr., on brief, pro se in No. 73-1584.
    Jim Guy Tucker, Atty. Gen., Little Rock, Ark., and Alston Jennings, Asst. Atty. Gen., on brief for appellees in Nos. 73-1536 and 73-1584.
    Before LAY, BRIGHT and WEBSTER, Circuit Judges.
   LAY, Circuit Judge.

A significant question in the corrections field is presented by these appeals. The fundamental issue is whether the punitive effects of a detainer, placed on a prisoner by the State of Arkansas because of a pending parole revocation in another state, may be continued when the latter state refuses to determine the question of revocation until the prisoner is released from his present confinement. The constitutional question posed is whether the due process requirements of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), as applied to parole revocation require a timely hearing and disposition by the parole state when the pardee is in the custody of another state.

JURISDICTION

The trial court based its jurisdiction on 42 U.S.C. § 1983. The court was troubled over the possible application of Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and whether petitioners’ remedy lay in habeas corpus rather than under § 1983 of the Civil Rights Act. In view of the delay that would follow from state exhaustion, the district court determined that, even if the complaint was to be construed as a habeas corpus action, it would nonetheless exercise its jurisdiction. We find the reasoning of Rodriguez inapplicable and determine that the district court properly entertained the petitioners’ claim under § 1983. Rodriguez requires a prisoner’s claim which is premised on the loss of good time credit to proceed by habeas corpus under 28 U.S.C. § 2254 rather than under the Civil Rights Act. The reasoning of the Supreme Court is that loss of good time credit relates to custody rather than to conditions of confinement. Here the alleged constitutional deprivation relates to the conditions of a prisoner’s confinement, cognizable under § 1983. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971).

FACTUAL HISTORY

Plaintiffs, Leroy C. Cooper and Harry L. Williams, Jr., were both represented in the federal district court by the same counsel, Mr. John T. Lavey of Little Rock, Arkansas. Mr. Lavey appealed Cooper’s case. Williams has filed his appeal pro se. The issues developed in the trial court are identical in both Cooper’s and Williams’ cases. However, the posture of Cooper’s case has materially changed on appeal, and as a result his case must be dismissed as moot.

In 1968 Cooper received a five-year sentence in the State of Missouri and was subsequently paroled in 1970. A short time later he was convicted of a felony in the State of Arkansas and confined to the Arkansas State Prison. The State of Missouri on October 21, 1970, issued a parole violation warrant against Cooper. On March 16, 1971, the State of Arkansas placed a detainer against Cooper in favor of “Jefferson City, Missouri for Parole Violation.” The detainer placed against Cooper was not based on the Arkansas felony conviction but on other factual grounds. On April 30, 1973, Cooper wrote a letter to the Missouri Board of Parole requesting a revocation hearing within 60 days. On May 7, 1973, a Board member advised him that no revocation hearing could be held until he was released from the Arkansas prison and returned to Missouri. On June 14, 1973, petitioner filed an amended complaint alleging inter alia the detainer placed on him was illegal since the State of Missouri had refused to give him a revocation hearing within a reasonable time. The state answered that the court lacked jurisdiction since the State of Missouri was not before the court and was an indispensable party.

The district court pointed out that the State of Missouri was not a necessary party to the suit; that it would allow the State of Missouri to intervene but Missouri never made any request to do so. The court found that if the petitioner was entitled to relief, it could be obtained by operation of the court’s decree on the parties before it. These defendants are Terrell Don Hutto, Commissioner of the Arkansas Department of Correction and A. L. Lockhart, Superintendent of the Cummins Prison Unit in Arkansas, where Cooper was then incarcerated and Williams is still confined.

The factual details of Williams’ case are not as fully developed in the record; however, the trial court found the issues to be identical to Cooper’s. The record does disclose that Williams was a parolee from the State of Michigan when subsequently convicted of a felony in the State of Arkansas. Thereafter, the State of Michigan requested a detainer with the State of Arkansas for possible parole revocation and requested that it be notified when Arkansas released Williams. Williams alleges, in his pro se brief, that in April of 1973, the Michigan Board of Parole informed the Attorney General of Arkansas that it would not give Williams a parole revocation hearing until he was released by Arkansas. In addition, we also rely on the trial court’s assumption that Williams has demanded a speedy hearing in Michigan and that the same was denied. The trial court additionally found that neither Cooper’s nor Williams’ parole had been actually revoked at the time of its opinion.

At this juncture, we come back to our earlier assertion that Cooper’s posture on appeal is materially different. The trial court noted that Cooper would be eligible for release from the Arkansas Penitentiary on October 28, 1973. This appeal was argued in early October and we requested the parties to inform this court as to the possible release of Cooper at that time. We have now received a letter from the Assistant Attorney General of the State of Arkansas, Alston Jennings, Jr., that Cooper was in fact released from Arkansas custody on October 26, 1973, to the Missouri authorities on the basis of the de-tainer. Upon these facts, we find that Cooper’s case is moot and must accordingly be dismissed. Williams’ minimum release date from the Arkansas prison is November 8, 1975; thus his case still presents a viable issue.

The determination of mootness in Cooper’s case helps crystallize the jurisdictional basis and the actual issue before us. It is apparent that the district court, in dismissing both complaints, viewed this case in terms of whether the Missouri authorities must grant Cooper, and whether the Michigan Board of Parole must grant Williams, a “speedy trial” in the form of a revocation hearing. On this basis the district court properly analyzed Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), and Braden v. 30th Judicial Cir., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), and found that the Sixth Amendment guaranteeing the right to a speedy trial was limited to “another pending criminal charge” and not to a parole revocation warrant. See also Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

We view the issue to be much broader. The issue before us is whether the custodial state may be required to remove the harmful consequences which flow from the detainer if a parole revocation hearing is not granted while the prisoner remains in its custody. It is significant that it is the custodial state which places the detainer on the prisoner, not the state which makes the request for one. We know of no legal obligation on the custodial state to place a detainer on the prisoner because of the issuance of a parole violation warrant by another state. Even if there is, the fact that the custodial state cooperates with the requesting state in turning the prisoner over at release is not the thrust of the attack. The relief sought is from the alleged punitive consequences which surround the prisoner in his day-to-day imprisonment in the custodial state when a detainer is placed upon him. Thus, we conclude that Cooper’s release by Arkansas on October 28, 1973, now removes him from the restrictions imposed by the Arkansas authorities by the detain-er. However, as indicated, this is not so as to Williams.

DUE PROCESS AS APPLIED TO PAROLE REVOCATION

We therefore move to the issues as they relate to Williams. First, we are faced with the fundamental question of whether there exists in the circumstances presented a denial of due process. We find there is. The law is now established that due process is required in parole revocation proceedings. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The issue is then simply whether there should exist an exception for a parole violator who is incarcerated in another state.

The district court reasoned that the applicability of Morrissey was not before it since the due process requirements applied only to the state which must hold the parole revocation hearing. The court found that the requirements of Morrissey come into play only at such time as the petitioner is brought before a Board of Parole for a revocation hearing. Thus, the district court reasoned the questions of notice, opportunity to be heard, and determination by a fair fact finder are issues over which the defendants in the present case can have no control. First, it is important to recognize that Morrissey contemplates that due process for a parolee includes not only the above mentioned rights, but as well, an opportunity to be heard within a reasonable time of the alleged parole violation. Morrissey indicates that when a parole officer makes a decision that a violation of parole has occurred, “due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.” Morrissey, at 485, 92 S.Ct. at 2602 (emphasis added).

The concept of a speedy trial as embodied within the Sixth Amendment to the United States Constitution was recognized to be so basic to a fair trial that it was set forth in a separate amendment. However, the speedy trial clause’s applicability only to actual criminal prosecutions does not mean that the due process clause rejects a prompt and timely hearing in other procedures, formal or informal. Dim memories and disappearance of witnesses can well affect the outcome of a parole revocation hearing as much as any criminal trial. Delay in any procedure may well affect its fundamental fairness. Cf., e. g., Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). As stated in Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965):

A fundamental requirement of due process is “the opportunity to be heard.” . . . It is an opportunity which must be granted at a meaningful time and in a meaningful manner. (emphasis added).

We then come to the district court’s reasoning that the timeliness of the hearing is solely within the control of the state seeking arrest and not the custodial state. This analysis overlooks the factual circumstance which actually exists. Realistically, due to its detainer, it is the custodial state which has placed the added punitive restrictions on the prisoner. In this sense, it would be judicial sophistry not to find that the custodial state is acting in full concert with the state which refused to promptly, process its pending review of parole revocation. The Supreme Court has recognized this principle, stating that the custodial state “acts as agent for the demanding State . . . ." Braden, 410 U.S. at 498-499, 93 S.Ct. at 1131. In applying the due process requirements of Morrissey, we think it essential to remember that “[wjhether any procedural protections are due [in any particular situation] depends on the extent to which an individual will be ‘condemned to suffer grievous loss.’ ” Mor-rissey, 408 U.S. at 481, 92 S.Ct. at 2600. In the instant case failure to provide a timely revocation hearing may not only result in prejudice to the individual in the state seeking the revocation but the failure may also result in the prisoner suffering a “grievous loss” while confined in the Arkansas prison system. Under these circumstances it is not possible to completely separate the custodial state from the state requesting the de-tainer.

The parties have stipulated on appeal that the following punitive consequences during imprisonment in Arkansas flow from the placement of the detainer by the Arkansas Department of Corrections. The petitioner is:

(1) Ineligible to participate in the vocational training program because of a federal regulation attached to the granting of federal funds;

(2) Ineligible to attain the classification of trustee;

(3) Ineligible to participate in the meritorious furlough program because only trustees can take part;

(4) Ineligible to participate in the work release program.

As the Arkansas Attorney General conceded in oral argument, a prisoner with a detainer placed on him simply “exists” in the Arkansas prison system.

It has been urged that the possible loss of individual liberty, which was the focal thrust of Morrissey, is not present in a detainer situation because the individual is already incarcerated. In other words, regardless of any favorable decision as to the parole revocation, that decision cannot affect the present confinement. This argument, we think, violates the intended spirit of Morrissey and the later decision of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

The Supreme Court has observed :

Society has a stake in whatever may be the chance of restoring him to normal and useful life within the law. Society thus has an interest in not having parole revoked because of erroneous information or because of an erroneous evaluation of the need to revoke parole, given the breach of parole conditions .... And, society has a further interest in treating the parolee with basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.

Morrissey, 408 U.S. at 484, 92 S.Ct. at 2601 (emphasis added). In Gagnon, the Court emphasized that the state not only has interests in accurate findings of fact and an informed use of discretion, but that in addition the state should make certain “that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community.” Gagnon, 411 U.S. at 785, 93 S.Ct. at 1761 (emphasis added).

In Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), the Supreme Court discussed the effect of a detainer requested by another state when the latter delays the trial on a separate criminal offense. The Supreme Court said:

[T]he possibility that the defendant already in prison might receive a sentence at least" partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed.

Smith, at 378, 89 S.Ct. at 577.

This possibility is just as much obscured and “forever lost” if a parole revocation hearing is postponed. Similarly, the Smith Court appreciated the grievous loss to a prisoner as well as to the state by the use of a detainer. The Court quoted from a former Director of the Federal Bureau of Prisons who said:

[I]t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement.

Smith, at 379, 89 S.Ct. at 578.

. In summary, we find the cooperating custodial state denies the prisoner due process by continuing the effects of a detainer placed on him solely on the strength of a request for one made by a sister state. Thus, we hold that the special conditions of Williams’ confinement automated by the filing of the detainer must be discontinued in the event that Michigan, upon reasonable notice being given, does not request that Williams be made available for prompt disposition of the parole revocation proceeding.

THE EFFECT OF AN EARLY HEARING

It is possible to argue (1) that a revocation hearing is needless since in most every case the detainer request will be placed because the petitioner has violated his parole through conviction of another felony and (2) that the practical barriers, including the expense involved in holding a revocation hearing when the individual is confined in another state, will outweigh the benefits of possibly removing the effects of the detain-er.

The first consideration could be a real one, if it were a foregone conclusion that revocation and reincarceration would always result. However, this is not so. There are many possible alternatives. First, notwithstanding the conviction in another state, the Board of Parole may well waive revocation. This often occurs today but the decision to waive revocation is not decided until the prisoner is about to be released by the detainer state. The result is that because of the detainer, the prisoner is released without having been given the opportunity for rehabilitation in prison.

Second, the argument that parole revocation and imprisonment will automatically follow upon release overlooks the concern of the Supreme Court “that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving . . . .” Smith, at 378, 89 S.Ct. at 577. In Williams’ case, if the Michigan Board of Parole would determine that the remaining time on Williams’ Michigan sentence could be served concurrently with his Arkansas sentence, the de-tainer would be removed and Williams would become eligible for the rehabilitation programs within the Arkansas prison system. It may well be that the State of Michigan will reject that alternative and simply decree that Williams be returned to Michigan and complete his time. But the point is that this should not be the inevitable result.

We also do not believe that a state which is required to give a parole revocation hearing earlier than it would like will act more vindictively and in every case revoke parole and require the ultimate return of the prisoner. To do so would be to ignore the needs of the state as weil as the individuals. Indeed, the economics of maintaining an overcrowded prison would early catch up with the state. Gf. the dissenting opinion in Morrissey v. Brewer, 443 F.2d 942, 959 n. 16 (8th Cir. 1971), rev’d, 408 U.S. 471, 92 S.Ct. 568, 30 L.Ed.2d 552 (1972).

We turn then to the practical objection. We think the discussions found within Morrissey and Gagnon v. Scarpel-li, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed. 2d 656 (1973), govern here. The Court in Morrissey and Gagnon envisioned that there would be some disruptive impact which would inevitably follow from the ruling that due process was required for parole and probation revocation. The Court in Gagnon foresaw some modification of the Interstate Compact as relieving the technical hurdles. Gagnon, at 782-783 n. 5, 93 S.Ct. 1756. But more importantly, the Court emphasized the flexibility which would be allowed in a probation revocation proceeding. Id. As the Supreme Court observed in Gag-non:

While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Mor-rissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence. Nor did we intend to foreclose the States from holding both the preliminary and the final hearings at the place of violation or from developing other creative solutions to the practical difficulties of the Morrissey requirements.

Gagnon, at 783 n. 5, 93 S.Ct. at 1760.

Here, for example, the custody state and the state requesting detainer might work out informal procedures that would furnish the latter with adequate information on which to exercise its judgment whether or not to continue the de-tainer and press for parole revocation against the prisoner. Should the detain-er-requesting state choose to pursue revocation the two states might still work out procedures which would comply with the requirements of Morrissey, but which, nevertheless, cast no great burden of time or expense upon either state.

We dismiss the appeal of Leroy C. Cooper as moot; we reverse and remand the case of Harry L. Williams, Jr. The district court is ordéred to determine an appropriate and reasonable time from the date of our remand for the Arkansas authorities to notify the Michigan Board of Parole or the requesting authority of this decision and to provide a reasonable opportunity for them to hold a parole revocation hearing. In the event a hearing is held and the parole is revoked with a request by Michigan for Williams’ ultimate release to it, the State of Arkansas is at liberty to continue the detainer if it so chooses. In the event that Michigan does not request Williams’ return to it, or in the event that no hearing is held in accord with the principles of due process set forth here, Arkansas shall be ordered to provide the prisoner with the same opportunities given the other prisoners not subject to a detainer.

Judgment reversed and remanded with directions.

      . The grounds as set forth in the Missouri arrest warrant read:
      1. (Vltn. Rule # 1). Failure to notify PO of change of place of residence or loss of employment. 2. (Vltn. Rule # 2). Failure to obtain advance permission of parole officer before quitting job or changing employment. 3. (Vltn. Rule # 3). Failure to obtain advance pmsn from parole officer before leaving area in w/Absconding living. 4. (Vltn. Rule # 11). Failure to report to parole officer as directed. 5. (Vltn. Rule # 15). Failure to follow the directives of parole officer.

      . Plaintiff earlier brought his suit before making a request for such a hearing to the Missouri authorities. It was dismissed as premature. Thereafter Cooper made the request for a hearing to the Missouri Board of Parole and was refused; at that time, petitioner renewed his suit in the district court.

      . There is some confusion in the record on this finding in the Williams case. The State of Arkansas originally responded that Williams’ parole had been earlier revoked by the State of Michigan on November 16, 1971. This was denied by the petitioner. We can only rely here on the trial court’s finding that the parole has not been revoked. This finding is not attacked by the state on appeal.

      . In all criminal pi'osecutions, the accused shall enjoy the right to a speedy and pub-lie trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulso- . ry process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
      U.S.Const. Amend. VI.

      . See the Interstate Agreement on Detainers as it applies to arrests and indictments relating to new offenses as adopted by the 1971 Arkansas State Legislature. Ark.Stat. Ann. § 43-3201 (Supp.1971).

      . But see Braden v. 30th Judicial Cir., 410 U.S. 484, 499, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), where jurisdiction to uro^s claim of denial of speedy trial is recognized not only in the custodial state, but as well in the state which has pending criminal charges.

      . A thorough discussion of the historic origins and the importance of the Sixth Amendment can be found in Klopfer v. North Carolina, 386 U.S. 213, 223-226, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

      . As Mr. Justice Cardozo observed many years ago, “the effect of the postponement of a remedy would be equivalent to a denial of justice altogether ... . ” Thomann v. Rochester, 256 N.Y. 165, 176 N.E. 129, 132 (1931). And as early recognized by the Supreme Court, “promptness of decision ... in all judicial actions is one of the elements of justice.” Forsvth v. Hammond, 166 U.S. 506, 513, 17 S.Ct. 665, 668, 41 L.Ed. 1095 (1897).

      . The Supreme Court was faced with the issue of two possible jurisdictions in both Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), and Braden v. 30th Judicial Cir., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed .2d 443 (1973). Smith was a federal prisoner incarcerated in the federal penitentiary at Leavenworth, Kansas, seeking a speedy trial from the State of Texas. Bra-den, imprisoned in Alabama and requesting the State of Kentucky to grant him a speedy trial, brought his action in the District Court for the Western District of Kentucky. Notwithstanding the place of imprisonment, the Supreme Court observed in Braden:

      Kentucky must “attempt to effect the return of a prisoner from a foreign jurisdiction for trial on pending state charges when such prisoner so demands .... Since it is the State of Kentucky which must take action, it follows that jurisdiction rests in this district which has jurisdiction over the necessary state officials.”

        Braden, at 487, 93 S.Ct. at 1126.

      . Punitive consequences of a detainer placed on the prisoner vary from one institution to another. The generally recognized ones include the following restrictions: the inmate is (1) deprived of an opportunity to obtain a sentence to run concurrently with the sentence being served at the time the detainer is filed; (2) classified as a maximum or close custody risk; (3) ineligible for initial assignments to less than maximum security prisons (i. e., honor farms or forestry camp work) ; (4) ineligible for trustee status; (5) not allowed to live in preferred living quarters such as dormitories; (6) ineligible for study-release xerograms or work-release programs; (7) ineligible to be transferred to preferred medium or minimum custody institutions within the correctional system, which includes the removal of any possibility of transfer to an institution more appropriate for youthful offenders; (8) not entitled to preferred x>rison jobs which carry higher wages and entitle them to additional good time credits against their sentence; (9) inhibited by the denial of possibility of parole or any commutation of his sentence; (10) caused anxiety and thus hindered in the overall rehabilitation process since he cannot take maximum advantage of his institutional opportunities. See generally Goldfarb & Singer, Redressing Prisoners’ Grievances, 39 Geo.Wash.L.Rev. 175, 228-230 (1970) ; Jacob & Sharma, Justice After Trial: Prisoners’ Need for Legal Services in the Criminal-Correctional Process, 18 Kan.L.Rev. 493, 578-589 (1970) ; Tuttle, Catch 2254: Federal Jurisdiction and Interstate Detainers, 32 U.Pitt.L.Rev. 489 (1971) ; Note, Detainers and the Correctional Process, 16 Wash.U.L. Q. 417 (1966).
      As one commentator has observed :
      Many of the system’s inadequacies stem from the fact that it was developed by administrators for administrators, with little interference from courts or legislatures. It is, therefore, not surprising that convenience and expediency are its main concerns, rather than protection of the rights and welfare of individual detainees. Lack of regulation and meager or nonexistent requirements for filing a detainer leave the system open to much abuse, adding to the gravity of the problem.
      Note, 16 Wash.TJ.L.Q. 417, 436 (1966).
      It was further noted that:
      [B]oth the detainee and society stand to gain from prompt adjudication. The uncertainty about the detainee’s future will be removed, and intelligent planning of a program of rehabilitation will become possible. The cooperation of the inmate should be substantially increased for the same reasons.

        Id. at 437.
      The primary goal in solving the detainer problem is to insure to the extent possible, identical treatment of one accused of multi-jurisdictional offenses, and one accused of the same crimes against a single jurisdiction.

        Id. at 439.

      . The 1947 Handbook on Interstate Crime Control focuses on detainers and the problems they present for rehabilitation :
      We know now that the prison administrator’s task is to rehabilitate the offender and to make plans for Mm to return to the community as a self-respecting, law-abiding citizen. However, tMs task is difficult to accomplish in many cases because we have allowed the detainer, inherited from medieval thinking, to remain in our law enforcement system without making adjustments necessary to prevent hampering of the modern correctional system.
      While it would seem proper that authorities in quest of a violator of the law should have every assistance in returning him to their jurisdiction, nevertheless the detainer system now operates to the detriment of society all too often. The difficulties inherent in the existing detainer system affect the judges, the institutional officials, the paroling authorities and the individual himself.
      The prison administrator is thwarted in Ms efforts toward rehabilitation. The inmate who has a detainer against him is filled with anxiety and apprehension and frequently does not respond to a training program. He often must be kept in close custody, which bars him from treatment such as trustyships, moderations of custody and opportunity for transfer to farms and work camps. In many jurisdictions he is not eligible for parole; there is little hope for his release after an optimum period of training and treatment, when he is ready for return to society with an excellent possibility that he will not offend again. Instead, he often becomes embittered with continued institutionalism and the objective of the correctional system is defeated.
      Quoted in Lawrence v. Blackwell, 298 F. Supp. 708, 713-714 (N.D.Ga.1969).

      . It has been observed that thirty per cent or more of the inmates in federal penitentiaries have at least one detainer outstanding against them and many prisoners have more than one detainer. At the same time there are many prison inmates who have charges pending against them for which detainers have not yet been filed. Another study revealed that approximately five hundred inmates in the Missouri State Penitentiary have detainers filed against them. Yet in spite of these figures the authorities are in agreement that less than one-half of all detainers which are filed are ever exercised and many of these are filed with no intention of ever trying to enforce them. Many of the detainers are filed for punitive reasons, to curtail prison privileges or to prevent parole. Thus the inmate is punished for the offense though he has not been tried or convicted and then the charges are later withdrawn or not enforced. Since detainers do not bind a requesting official, a prisoner may not know until his actual release whether the detainer will be enforced or not — when the requesting officials or their agents either show up or simply fail to appear. If they do not show up the inmate is set free. See Jacob & Sharma, Justice After Trial: Prisoners’ Need for Legal Services in the Criminal-Correctional Process, 18 Kan.L.Rev. 493, 578-579 (1970); Note, Detainers and the Correctional Process, 16 Wash.U.L.Q. 417 (1966).

      . One court in discussing detainers made the following observation:
      It has previously come to the Court’s attention that after some prisoners have served their extended and extra oppressive Federal terms because of such detainers, the State then never has prosecuted them. Attempts at rehabilitation, treatment and a gradual, supervised readjustment to free life are, in such cases, obviously completely defeated.
      The universal effect of these detainers, however, regardless of the intent, is to stultify the Federal course of treatment designed to reform the offender during his incarceration.
      United States v. Candelaria, 131 F.Supp. 797, 805 (S.D.Cal.1955). See also Lawrence v. Blackwell, 298 F.Supp. 708, 713-714 (N.D. Ga.1969); Tuttle, Catch 2254: Federal Jurisdiction and Interstate Detainers, 32 U. Pitt.L.Rev. 489, 491 (1971).

      . The only issue before us is whether due process required for parole revocation under Morrissey mandates a timely hearing for a parolee subsequently convicted and confined in another state. Once such a hearing is held, and if the parole is revoked and the revocation state determines that it still wants the prisoner upon his release, the de-tainer could continue without in anyway violating this opinion. Nonetheless, we cannot avoid commenting that the exact purpose and logic of the continuing detainer escapes us. Removing the prisoner from the opportunity of rehabilitation during the remainder of his sentence because he must ultimately serve out an earlier sentence in another jurisdiction, makes little sense. The action must rest partially on the irrational premise that by the commission and the conviction of another crime he is in less need of vocational rehabilitation then the felon who is serving time for his first offense.
      The justification for placing the prisoner under the punitive measures of a detainer rests generally on the idea that because of the prospect of additional time the prisoner is a poor risk for work release or as a trustee. This reasoning militates against the alternative prospect that a prisoner, facing release to another state might be more motivated toward good behavior and rehabilitation if there was the prospect that upon release the first state might reparole him because of his showing of adjustment.

      . The National Advisory Commission on Criminal Justice Standards and Goals, Report on Corrections 407 (1973) has noted: [T]hat taking no action and returning the parolee to the institution are not the only two courses open. The work of the California community treatment programs shows that the availability of alternative measures — short-term confinement or special restrictions — can be extremely useful in dealing with parolees instead of causing them a long-term return to an institution. Likewise, the Model Penal Code suggests that jurisdictions develop alternatives to the no action vs. full revocation dilemma. Such alternative modes need to be developed and formalized and used much more extensively.

      . Assuming the detainer is removed, there is, of course, nothing in this opinion which would prevent the State of Arkansas from notifying the State of Michigan of Williams’ release date.


text:
    EXCAVATORS AND ERECTORS, INC., Plaintiff-Appellee, v. BULLARD ENGINEERS, INC., Defendant-Third Party Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK, Third Party Defendant.
    No. 72-3255.
    United States Court of Appeals, Fifth Circuit.
    Dec. 27, 1973.
    G. M. Harrison, Jr., Dothan, Ala., for Bullard & U. S. Fid. & Guar. Co.
    Floyd M. Buford, Macon, Ga., for appellant.
    John B. Harris, Jr., Joseph H. Davis, Macon, Ga., for Excavators & Erectors & Commercial Union Ins. Co.

      Before BELL, INGRAHAM and RO-NEY, Circuit Judges.
   INGRAHAM, Circuit Judge:

This is a Georgia diversity case concerning a dispute between a general contractor, Bullard Engineers, Inc., and a subcontractor, Excavators and Erectors, Inc. On March 16, 1969, Bullard contracted with the Georgia Educational Authority for the construction of the Student Services Building, Middle Georgia College, Macon, Georgia. Bullard subsequently entered into a written subcontract with Excavators and work was begun under this contract in late April of 1969. During the early stages of the excavation work, Excavators discovered a subsurface condition consisting of soil unsuitable for compaction. The existence of this problem was unknown when both Bullard’s general construction contract and Excavators’ subcontract were consummated. Bullard subsequently was authorized by the Georgia Educational Authority to remove this soil and to replace it with suitable, compactible soil. Bullard verbally informed Excavators’ supervisor, James H. Taylor, of this authorization, requested that the soil be replaced and discussed with him the procedures by which records would be kept of costs in order to compensate Excavators for this additional work. It is uncontested that Excavators completed this additional task.

While work proceeded during the summer of 1969, dissension arose between Excavators and Bullard. Bullard believed that Excavators was in default on the subcontract because of its failure to furnish adequate labor and machinery; consequently work was unjustifiably behind schedule. Early in November, this dissension resulted in Bullard’s demand that Excavators leave the construction site. Excavators left the site under protest.

Excavators brought this suit, alleging that Bullard had breached its contract by ordering Excavators’ men and machinery off the premises. Bullard denied liability, asserted a counterclaim for breach of the subcontract, and obtained leave to join Commercial Union Insurance Company of New York, surety on the bond posted by Excavators, as third party defendant. Excavators likewise obtained leave to add United States Fidelity and Guaranty Company, the surety on Bullard’s bond, as a defendant. The case was tried to a jury, and in answer to special interrogatories the jury rendered a verdict for Excavators in the amount of $45,237.70 in addition to attorney’s fees. Judgment was entered on the verdict against Bullard and United States Fidelity and Guaranty Company for $49,737.70. We affirm.

On appeal defendants Bullard and United States Fidelity and Guaranty Company raise several points of error, two of which are worthy of mention. First, defendants contend that the trial court erred in holding that the extra work of removing and replacing the unsuitable soil was done pursuant to a separate oral contract. Because the district court held that this was a separate oral agreement, evidence that Bullard had not been paid for this work was excluded as irrelevant and immaterial to the contractual relationship between Bullard and Excavators. Defendants urge, as they did in the district court, that the agreement to replace the unsuitable soil was made pursuant to the provisions of the subcontract. As the subcontract contained the provision that “the Subcontractor shall be paid within 5 days after the Contractor receive [s] payments,” defendants contend that because they have not been paid, plaintiff is not entitled to payment. Defendants also argue that since the subcontract incorporated by reference the provisions of the general contract, the agreement to replace the soil was merely a change in the subcontract pursuant to the change clause of the general contract rather than a separate oral agreement.

Our review of the record reveals ample evidence to support the district court’s conclusion that the agreement to replace the unsuitable soil was a separate oral contract apart from the written contract between the parties. Evidence introduced at trial established that when the unforeseen soil condition was encountered, Bullard obtained authorization to pay for additional work and requested that Excavators replace the soil on a cost plus basis. In short, the evidence supports the district court’s conclusion, see Clark v. Belleau, 114 Ga.App. 587, 151 S.E.2d 894, 896 (1966); Mion Chemical Brick Corp. v. Daniel Construction Co., 111 Ga.App. 369, 141 S.E.2d 839, 840 (1965), and therefore the evidence of nonpayment to Bullard was properly excluded.

Defendants’ second contention is that the plaintiff failed to prove the liability of United States Fidelity and Guaranty Company. Moreover, even assuming that the surety is liable, the defendants contend that the judgment awarding damages jointly against Bullard and United States Fidelity and Guaranty Company exceeds the contractual limitations of the bond, because the bond here in question was an obligation to pay only for labor and materials, not damages for breach of the contract or attorney’s fees. See United States v. Maryland Casualty Co., 147 F.2d 423, 425 (5th Cir., 1945). Also, as the bond was issued specifically in reference to a particular written contract, the obligation would not extend to an oral contract apart from the written contract.

While these contentions may have had merit if timely raised in the district court, it is well established that, in the absence of a miscarriage of justice, issues not raised or presented in the lower court will not be considered for the first time on appeal. Hill York Corp. v. American International Franchises, 448 F.2d 680, 690 (5th Cir., 1971); D. H. Overmyer Co. v. Loflin, 440 F.2d 1213, 1215 (5th Cir., 1971); see United States Fidelity & Guaranty Co. v. Hendry Corp., 391 F.2d 13 (5th Cir., 1968); Seaboard Surety Co. v. Westwood Lake, Inc., 277 F.2d 397, 403 (5th Cir., 1960); Lake County v. Massachusetts Bonding & Insurance Co., 75 F.2d 6, 8 (5th Cir., 1935). From the initial stages of this suit, the plaintiff alleged the joint liability of the surety. In the plaintiff’s motion to add United States Fidelity & Guaranty Company as a defendant and in its amended complaint, it was alleged that the surety was jointly liable for plaintiff’s damages. The defendant answered the complaint and admitted that the bond was in full force and effect during the time of this controversy. Although the answer denied liability to Excavators, no contention was made that the alleged damages were outside the scope of the bond’s coverage. The defendant’s contentions regarding United States Fidelity & Guaranty Company’s liability and the extent of such liability was first raised in a post-judgment motion to alter and amend the judgment. This is simply too late.

The judgment of the district court is affirmed.