author: BELL, Circuit Judge: THORNBERRY, Circuit Judge

text:
    Kenneth T. RAINEY, Plaintiff-Appellant, v. JACKSON STATE COLLEGE et al., Defendants-Appellees.
    No. 72-1681.
    United States Court of Appeals, Fifth Circuit.
    June 27, 1973.
    A. Spencer Gilbert, III, Jackson, Miss., for plaintiff-appellant.

      William A. Allain, Asst. Atty. Gen., Jackson, Miss., M. M. Roberts, Hattiesburg, Miss., Ed Davis Noble, Jr., Jackson, Miss., for defendants-appellees.
    Before BELL and THORNBERRY, Circuit Judges and GROOMS, District Judge.
   BELL, Circuit Judge:

The events giving rise to this appeal are unusual indeed. The Gordian-like knots are largely procedural.

The matter began as a suit under the civil rights jurisdiction of the district court, 42 U.S.C.A. § 1983, and 28 U.S.C. A. § 1343(3). Plaintiff alleged that his contract to teach at Jackson State College during the academic year 1970-71 had been breached by defendants in violation of his First Amendment right to free speech. On September 16, 1970, the district court dismissed for lack of jurisdiction. On September 21, 1970, a panel of this court granted plaintiff’s motion for injunction pending appeal with direction that he be reinstated to his teaching post. Defendants assigned him to a research position rather than to his teaching post. On September 28, 1970, the order of this court was clarified to require that plaintiff be reinstated to the teaching duties as were contemplated by the contract.

The appeal was then heard on the merits in this court and the judgment of the district court was reversed. We held that the district court had jurisdiction and should proceed to hear the cause. Rainey v. Jackson State College, 5 Cir., 1970, 435 F.2d 1031. The statement of facts therein set out will suffice for this appeal. The following part of our opinion has some bearing on the subsequent result:

“Upon remand we leave in force this Court’s injunction granted September 21, 1970, and clarified September 28, 1970. The injunction will remain in full force and effect until such time as the plaintiff has had an opportunity to apply to the district court for injunctive relief pending a decision of the case on the merits, and the district court’s disposition of such motion.” 435 F.2d at 1036.

Our decision was rendered on December 22, 1970. Our mandate issued on January 13, 1971. Plaintiff moved for a preliminary injunction on February 24, 1971, but no further action was taken in the district court during the 1970-71 academic year. The reason for the inaction does not appear in the record but the result is clear and undisputed. Plaintiff taught throughout the contractual year. He thus prevailed on the merits although there was never a hearing on the merits of his claim. This would have ended the matter for all practical purposes except as to the prayer for attorneys’ fees and costs. But there is more.

The contractual period in suit terminated on May 31, 1971. On August 26, 1971, plaintiff amended his complaint to claim a non-eontractual right to teach during the summer session of 1971 and the 1971-72 academic year. His amendment seemed to rest on the assumption that an in futuro — in perpetuity form of tenure flowed from the denial of his First Amendment rights in connection with the one year teaching contract. This time he sought compensatory and punitive damages but no injunctive relief.

The amendment, as a single cause of action, made reference to the refusal to employ plaintiff to teach during the summer session of 1971, and also during the 1971-72 academic year. The district court bifurcated this cause of action into two parts (the summer session and the 1971-72 year), in submitting special interrogatories to the jury. In denying a motion for new trial, the district court treated these periods as one. This is substantially the approach the plaintiff has taken in his brief in this court. In the view we take of the evidence and of the case, the parts will be considered as one — denominated the 1971-72 claim.

Plaintiff requested a jury trial and the matter was tried to a jury in January 1972. The claims for each year (and the summer session), were submitted to the jury on special .interrogatories and each was rejected. The district court then denied a motion for judgment notwithstanding the verdict and this appeal followed.

Plaintiff now contends that he was entitled to a judgment notwithstanding the verdict on his claims as to each of the years in question as well as attorneys’ fees and costs. We must, 'of course, take the record as made by the parties together with the procedures adopted by them as the basis for our decision. The purpose of the trial of the claim for 1970-71 is a mystery. It was essentially moot. We have carefully examined the prayers contained in the complaint and except for attorneys’ fees, ordinarily for resolution by the court, they have been entirely satisfied prior to trial. Were it not for the claim for attorneys’ fees, we might conclude our discussion of this particular claim on the note that .“all’s well that ends well”. The issue of attorneys’ fees is outstanding, however, and we can resolve it on the basis of the trial record as to the 1970-71 claim.

In any event, there are three issues involved: first, the claim for 1970-71; second, the claim for 1971-72; and third, attorneys’ fees for plaintiff’s counsel in connection with each of the claims. We see the motion for judgment notwithstanding the verdict as separable to the extent that we may consider each of these issues as standing alone. We turn then to the issues.

I.

We begin with the claim for 1970-71. It was mooted by the relief obtained by plaintiff through the injunction pending appeal granted in this court coupled with the subsequent inaction in the district court. Nevertheless, because of the claim for attorneys’ fees in connection with this particular claim, we must proceed to the merits and therefore to the motion for judgment notwithstanding the verdict.

The record discloses without dispute that plaintiff’s contract was withdrawn or breached due solely to the discovery in August 1970 by one of the defendant trustees that plaintiff, while teaching at another institution during the previous year, had testified as an expert witness for the defense in a criminal case charging the obscenity of a film. The defense was successful. Plaintiff received widespread publicity due to his appearance as a witness and was denied tenure although not his teaching position at the private institution on account of the event. The trustee brought these facts to the attention of his fellow trustees. They, in turn, caused the president of Jackson State to withdraw plaintiff’s contract. This appears from the testimony of the trustee who made the discovery.

At this point, the trustees took the position that the president had no authority to make the contract without their final approval. This meeting of the trustees was in August.

The president then advised ‘ plaintiff that his secretary had sent the contract to% him during the preceding spring through inadvertence. This was in the face of the fact that other faculty contracts had been sent out during the spring. The essence of defendants’ position was that any contract could be withdrawn or cancelled at the pleasure of the trustees at any time prior to the beginning of school in September. There was no indication whatever in plaintiff’s contract that it was not final but the by-laws of the Board of Trustees and the faculty handbook reserved the right in the Board to disapprove contracts.

The president and trustees also adopted the pretext of saying to plaintiff that his position, along with three others, had been eliminated in order that the security force could be increased at the college. At any rate, these reasons all gave way when the trustee testified on deposition and at trial that testimony at the obscenity trial and the resulting publicity was the reason for withdrawing the contract. The lack of a defense on the part of defendants becomes all the more apparent from a reading of the five pertinent documents which are appended hereto.

These facts make out what appear to us to be a clear case of impermissibly freighting plaintiff’s contract with a deprivation of the First Amendment right to free speech. The following statement of the Supreme Court in Perry v. Sindermann, 1972, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, is apt:

“For at least a quarter century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not act. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests' — especially, his interest in freedom of speefch. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Speiser v. Randall, 357 U.S. 513, 526, [78 S.Ct. 1332, 1342] 2 L.Ed.2d 1460, [1473]. Such interference with constitutional rights is impermissible.” 408 U.S. at 597, 92 S.Ct. at 2697, 33 L.Ed.2d at 577.

Cf. Shelton v. Tucker, 1960, 364 U.S. 479, 485-486, 81 S.Ct. 247, 5 L.Ed.2d 231; Keyishian v. Board of Regents, 1967, 385 U.S. 589, 605-606, 87 S.Ct. 675, 17 L.Ed.2d 629. This teaching is all the more applicable in a case such as this where a contract is breached because of the exercise of First Amendment rights.

Despite this conclusion, it is the case that the 1970-71 claim was moot. However, the claim for attorneys’ fees remained viable and should have been presented to the court. In an effort to work out of the procedural morass which the parties have created, we conclude that plaintiff, absent the question of mootness and for the purpose of the attorneys’ fees question only, was entitled to a judgment n.o.v. on the 1970-71 claim. Thus the claim for attorneys’ fees in connection with that claim is preserved and we next consider whether attorneys’ fees were due.

II.

As to when attorneys’ fees may be awarded in § 1983 civil' rights suits, we have said:

“Federal district courts may, in their discretion, award attorneys’ fees in civil rights litigation where the actions of the defendants were ‘unreasonable and obdurately obstinate’.” Jinks v. Mays, 5 Cir., 1972, 464 F.2d 1223, 1228.

See also Horton v. Lawrence County Board of Education, 5 Cir., 1971, 449 F. 2d 793; Lee v. Southern Home Sites Corp., 5 Cir., 1970, 429 F.2d 290; Williams v. Kimbrough, 5 Cir., 1969, 415 F. 2d 874.

We hold that the record makes out a case of unreasonable and obdurate obstinacy on the part of defendants through the proceedings in this court which culminated in our prior opinion, 435 F.2d 1031, supra. As will be seen, we hold that the proceedings thereafter were no more than run of mine litigation and defendants were in no wise obstinate in defending the moot claim or the claim for 1971-72 which was added by amendment.

The proceedings in which we find the prohibited obstinacy on the part of defendants began with the original suit. The contract was breached. Plaintiff sought a conference with or a hearing before the trustees. He was refused except at the next regular meeting which would be after school began. He then filed suit. The defense was that the First Amendment claim was of such little consequence as to leave the matter as nothing more than a common law breach of contract suit for the state courts. The district court agreed. This court disagreed and accorded the rather drastic relief of granting an injunction pending appeal. Defendants promptly violated the order of this court by assigning plaintiff to research instead of the contractual teaching position. It was then necessary to seek an additional order in this court which was granted. Plaintiff then prevailed in this court on the jurisdictional question and the case was sent back to the district court for further proceedings in due course.

Thereafter, plaintiff sought a preliminary injunction in the district court. No action was taken on the motion. The order of this court remained in effect and plaintiff taught through the year 1970-71. We conclude that the obstinacy ended at this point. Plaintiff thereafter amended his complaint to seek damages for the next year, a claim to be hereinafter discussed. He filed no objection to trying the moot issue presented by the 1970-71 claim.

There is one obstacle to an award of attorneys’ fees to plaintiff which must be considered. Shortly after prevailing in this court in Rainey v. Jackson State College, 435 F.2d 1031, supra, plaintiff submitted a bill of costs, including an amount for attorneys’ fees, to this court. The costs were allowed but the claim for attorneys’ fees was disallowed. This rejection of the claim was on the record as it stood at that time. The only question before the court was jurisdiction. There had been no resolution of the merits of the claim. There had been no occasion to consider whether defendants had been obdurately obstinate in their dealings relating to the 1970-71 contract. We hold that the rejection of attorneys’ fees at that time was not on the merits and that the rejection is no bar to an award of fees on the merits of the claim.

We leave the amount of the fee to be awarded for the district court on remand. Cf. Jinks v. Mays, supra, 464 F. 2d at 1228. Upon remand, we hold that a fee should be allowed for this appeal but only on the basis of one-half of the services rendered in the total appeal.

III.

This leaves the question of the 1971-72 claim. Plaintiff requested a jury trial and lost. The question presented is whether there was sufficient evidence to warrant submission of the question to the jury. Boeing v. Shipman, 5 Cir., 1969, 411 F.2d 365. Under Perry v. Sindermann, supra, defendants could have declined to award plaintiff a contract to teach in 1971-72 for no reason or for any reason except a constitutionally impermissible reason. Plaintiff recognizes that he had no contract and no tenure. His position is that he might have obtained a new contract but for defendants’ attitude toward his prior First Amendment activity as a witness in the obscenity trial. Thus we have a classic case of a non-tenured teacher acquiring a right to teach in futuro and in perpetuity unless the college can present cause for non-renewal of such substantiality as will overcome the inference that the non-renewal was for the prior impermissible conduct.

The taint of the 1970-71 activity of defendants carried forward to 1971-72 by inference and was, without more, sufficient to make out a prima facie case. The burden was then on defendants to overcome this case. They sought to do so by offering evidence on which the jury could have found that plaintiff was not offered a new contract for the reason that his principal training was in religious philosophy rather than in English. Plaintiff was an ordained minister and taught in the English department. He had a master’s degree in English but thereafter earned a doctorate in religious philosophy. The jury could have also concluded that his credentials as an English teacher were not of a needed type. This evidence applied alike to the claims to teach at the summer session of 1971, and during the 1971-72 academic year. These reasons had to be weighed against the undisputed First Amendment violation and the further unspoken premise that the defendants would have a natural inclination to rid the school of one who had sued them. The weighing was for the jury. We cannot say that the reasons offered by the defendants could be disregarded as a matter of law. The jury found for the defendants and the matter ends there.

Fifty per cent of the statutory costs incurred in the trial and on this appeal are to be assessed against plaintiff and fifty per cent against defendants.

Affirmed in part; reversed in part; remanded with direction.

APPENDIX 1

JACKSON STATE COLLEGE Jackson, Mississippi 39217 Office of the President April 1, 1970

Dr. Kenneth Tyler Rainey Route 1, Box 165-D Clinton, Mississippi 39056

Dear Dr. Rainey:

Upon the recommendation of Dr. Wilbert Greenfield, Dean of Instruction, we are happy to offer you employment on our faculty for the 1970-71 school year.

Enclosed is a contract for your services as an Assistant Professor of English at a salary of $11,160 for nine months, September 1, 1970 through May 31, 1971. Please indicate your acceptance of this offer by signing and returning the enclosed contract to my office along with the other enclosed forms on or before April 22, 1970. The information sheet regarding the 1970-71 academic year will be sent to you at a later date.

Please contact Dr. Greenfield concerning your teaching assignments and other details about the College. We look forward to your joining our faculty in September.

Sincerely yours,

/s/ JOHN A. PEOPLES, JR. John A. Peoples, Jr., President

JAP :nhw Enclosures

Copy to Dr. Wilbert Greenfield

APPENDIX 2

CONTRACT

STATE OF MISSISSIPPI:

CITY OF JACKSON:

COUNTY OF HINDS:

This contract made and entered into by and between the Board of Trustees of Institutions of Higher Learning of the State of Mississippi hereinafter called the party of the first part, and Dr. Kenneth Tyler Rainey hereinafter called party of the second part, witnesseth:

That the party of the first part under and by virtue of the authority vested in it by Section 6724, Mississippi Code of 1942, does hereby contract with and employ Dr. Kenneth Tyler Rainey as Assistant Professor of English at Jackson State College for the period beginning September 1, 1970, and ending on May 31, 1971, at and for the sum of $11,160, payable in 9 monthly installments at the close of the months of September through May, inclusive

Provided that the party of the first part reserves the right to increase or decrease said monthly salary at any time during the life of this contract; said decrease shall be made only when and if necessary to keep the expenditures of the institution herein mentioned within that part of the Legislative appropriation allotted to said institution for the period covered by this contract and shall be effective only from and after the date of the passage of an order by the party of the first part, fixing the amount of the decrease and making it applicable to all outstanding contracts for institution mentioned above on an equal basis.

Provided further that in event the party of the second part abrogates this contract for his convenience, the party of the first part shall then fix the time and conditions of termination.

Provided further that the party of the first part shall have the power and authority to terminate this contract at any time for malfeasance, inefficiency or contumacious conduct by the party of the second part.

The party of the second part does hereby accept the employment herein above specified upon the terms and conditions herein stated.

In witness whereof, we have hereunto set our hands and seals in triplicate on this the 1st day of April, 1970.

BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING.

/s/ John A. Peoples, Jr.

for the Executive Secretary Party of the First Part /s./ KENNETH T. RAINEY Party of the Second Part 4/13/70

APPROVED:

/s/ JOHN A. PEOPLES, JR.

John A. Peoples, Jr.

Chancellor or President.

APPENDIX 3

JACKSON STATE COLLEGE Jackson, Mississippi May, 1970

INFORMATION TO FACULTY AND STAFF

Enclosed is a copy of your contract for your file. Please note that the teaching faculty is usually contracted for a nine-month academic year of three-quarters. Some persons, however, are contracted for eleven months. Persons who have nine-month contracts will receive their salaries in nine equal monthly installments. Persons who have eleven-month or twelve-month contracts will receive their salaries in twelve equal monthly installments.

Eleven and/or twelve-month faculty, chief administrative officers, and department heads who are employed under annual contract will be granted a month’s annual vacation. Directors, assistant directors, managers, coordinators, and other supervisory personnel who are employed under an annual contract will be granted a vacation leave of three weeks (21 consecutive days). All other salaried personnel employed on á contract basis, including clerical and secretarial personnel who hold permanent status will, after completing one fiscal year (July 1, 1970 to June 30, 1971), accrue vacation leave at the rate of two weeks (14 consecutive days) during their first five years of continuous employment. This rate will increase to three weeks (21 consecutive days) after five years of satisfactory and continuous service with the College.

Deductions will be made from your salary under this contract for Federal Income Tax, State Income Tax, Social Security, and Public Employees’ Retirement System of Mississippi. Deductions may be made, upon request, for the Jackson State College Employees’ Group Insurance Plan, and the Health Center Plan. Specific information as to the amounts of the deductions may be obtained from the Business Office of the College.

This contract is effective July 1 or September 1, 1970, as indicated on the contract. The teaching faculty, however, is not required to report for duty until Monday, September 14, 1970 at 9 a. m. unless there is further agreement. Persons not reporting for duty on that date will have salary deductions made for the time from the first of September until the date that they report for duty.

OFFICE OF THE PRESIDENT

APPENDIX 4

SCOPE

JACKSON STATE COLLEGE

Jackson, Mississippi

CAMPUS NEWS

VOLUME XIX JULY 10, 1970

Number 16

The Scope is published 52 times a year by the Jackson State College Office of Public Relations

1877-1970 — 93 years of quality education “The empty vessel makes the greatest sound” — Shakespeare

Faculty Facts

Jackson State College announces the addition of Kenneth Tyler Rainey to the college family as an instructor in the English Department.

Mr. Rainey is a native of the State of Tennessee where he received his early education. He earned the Bachelor of Arts Degree from Mississippi College in 1958 and the Master of Arts Degree from the University of Michigan in 1959. He holds the Bachelor of Divinity, 1964, and the Doctor of Theology, 1967, from the New Orleans Baptist Theological Seminary. He was a Woodrow Wilson Fellow, 1958-59.

The newcomer has a wide band of experiences which include work with the Pine Burr Area Council, Boy Scouts of America; assistant director of Youth Summer Activities, First Baptist Church, Gulfport, Mississippi; Assistant Pastor, First Baptist Church, Panama City, Florida; Pastor, Holmesville Baptist Church, McComb, Mississippi; instructor in English, Tulane University, New Orleans, Louisiana; tutor in English and Greek, New Orleans Baptist Theological Seminary; instructor in History and assistant professor in English, Mississippi College, Clinton, Mississippi; and interim pastorates at Gauter, Gulfport, Wesson, and Brookhaven, Mississippi.

Mr. Rainey is a member of Omicron Delta Kappa, men’s leadership honor society; Sigma Tau Delta, professional English fraternity; Phi Alpha Theta, national honorary history fraternity, American Association of University Professors ; South Atlantic Modern Language Association; Mississippi Council on Human Relations where he serves as member of the Board of Directors; and a member of the Northminister Baptist Church, Jackson, Mississippi.

Other activities of Mr. Rainey include the chairmanship of the Mississippi College Faculty Committee on Honorary Degrees; member, Mississippi College Faculty Committee on Graduate Fellowships and Scholarships, Publications Council; sponsor, Mississippi College Class of 1970; coordinator, Mississippi College Foreign Study-Travel Program; and campus representative, Woodrow Wilson National Foundation.

Mr. Rainey is married to the former Miss Elaine Fitts of Pontotoc, Mississippi. They are the parents of three children.

APPENDIX 5

JACKSON STATE COLLEGE

Jackson, Mississippi 39217 Office of the President August 20, 1970

Dr. Kenneth Tyler Rainey Route 1, Box 165-D Clinton, Mississippi 39056

Dear Dr. Rainey:

This is to inform you that the contract for your services as an Assistant Professor of English which was mailed to you on May 9, 1970, was sent inadvertently by my secretary who had affixed by rubber-stamped signature without permission. Moreover, your name had not been submitted to the Board of Trustees for approval which is a prerequisite to employment.

I regret to inform you that the position for which you were being considered has been eliminated by a budget amendment to provide necessary funds for increasing the Jackson State College Security Force. This amendment was approved by the Board of Trustees on August 20, 1970.

We shall be happy to offer our assistance in helping you to find other employment.

Sincerely yours,

/s/ JOHN A. PEOPLES, JR. John A. Peoples, Jr. President

JAP:frm

Copy: Dr. Wilbert Greenfield Dr. Estus Smith Dr. E. E. Thrash

THORNBERRY, Circuit Judge

(coneurring in part and dissenting in part):

The majority has discussed two time periods for which the plaintiff sought relief below, the 1970-71 nine-month academic term and the 1971-72 term. There is an additional third period in this case, however, which the majority does not discuss separately — the summer 1971 term. This summer session, as well as each of the two long terms, was covered by the complaint and was the subject of a separate interrogatory to the jury. The College contracted with teachers (or refused to do so) for each of the three periods separately. For these reasons and others which will appear below, I think the College’s refusal to hire Dr. Rainey for the 1971 summer term should receive separate consideration on this appeal.

1970-71 term. I agree with the conclusion reached in part I of the majority opinion; the record shows conclusively that the defendants acted for constitutionally impermissible reasons in attempting to cancel, or deny the existence of Dr. Rainey’s 1970-71 contract. One item of evidence bearing on the Board’s 1970-71 decision was a transcript of a hearing accorded Dr. Rainey on January 8, 1972 in compliance with an order of the district court. At the hearing Dr. W. O. Stone, President of the Board, explained why the Board, acting on the recommendation of its Special Education Committee had decided on August 19 and 20, 1970 that the College should not employ Dr. Rainey in 1970-71. He stated:

Now, there were several reasons why the Board members questioned your [Dr. Rainey’s] appointment. They are as follows: (1) There was much publicity about your statements concerning the motion picture entitled, “The Fox”. The Board members expressed grave concern that the publicity centered around your testimony dealing with the motion picture, “The Fox”, would be detrimental to your effectiveness as a professor at Jackson State College. It was pointed out by Board members that you were quoted as saying that this motion picture was not immoral and was one of the most beautifully done films that you had seen.
* * * * * -x-
The second major concern of the Board members was the fact that your field of expertise is basically in religious philosophy and your appointment was recommended as an Assistant Professor in the field of English. It is somewhat unusual for an ordained minister to seek employment at a public institution of higher learning to teach English.

Dr. M. M. Roberts, who had been a member of the Special Education Committee, explained the basis of the Committee’s decision in somewhat greater detail:

There were a good many reasons for what we thought. At that time there was no criticism of the right of Dr. Rainey to do what he had done in testifying about this moving picture entitled “The Fox”. But, wide publicity had been given to this and so much so that the administrative head and the administrators of Mississippi College concluded that Dr. Rainey should not be given tenure at that institution because he, Dr. Rainey, had gotten this bad publicity. This publicity that showed him out like a sore thumb, I’d say. This individual who had publicity where the public mind was advised and he thus had been watered down or rather his publicity received had made it improper in the view of what the Board itself considered to be in the best interests of Jackson State College that he be employed as a faculty member at Jackson State College for the year 1970-71, for that academic year.
•X- -X- * -x- * -X-
Another area which was discussed and considered on August 19th and/or August 20, 1970, by the Committee and Board aforesaid, was the fact that Dr. Rainey was an ordained minister of the gospel and that in all probability he could and would not devote his full undivided time and attention to his duties as a professor at Jackson State College. And, further, that his field of training and experience and conduct and what he had done with his life was basically in the field of religious philosophy and he was seeking employment in the field of English as Assistant Professor of English at Jackson State College for the academic year of 1970-71.

Thus, the hearing transcript reflects a total of three grounds for the Board’s decision: (1) Dr. Rainey’s testimony for the defense at an obscenity trial and the resultant publicity, (2) concern that, since his academic credentials did not include a doctorate in English, he might not be qualified to teach English, and (3) concern that his activities as a minister might interfere with his activities as a teacher. Dr. Roberts and Mr. Hederman, another member of the Board of Trustees testified at trial that the first of these reasons was the “basic” one. Mr. Hederman stated:

The basic reason [for the Board’s action] that was brought out at the time . was because of the publicity involved in The Fox trial, the thought was brought out that Dr. Rainey had testified in the Court hearing the film was viewed by him, according to the newspaper publicity, and the inference was that he could see nothing wrong with the film, and it was the general feeling of the members of that committee that day was, that we perhaps be served [sic] by not giving Dr. Rainey a contract, because of the publicity and because of his standards if he expressed this feeling at the Court trial.

Together, the transcript of the hearing and the testimony at trial make clear, as defendants admit in their brief on this appeal, that the plaintiff’s testimony at the obscenity trial and that “the notoriety which he had obtained from his testimony” constituted the paramount basis” for the Board’s action. I fully agree with the majority that the testimony and the resultant publicity were impermissible reasons under Perry v. Sindermann, 1972, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, for the Board’s attempt to terminate Dr. Rainey’s employment in 1970-71 and that the district court should have granted judgment n. O. v. for the plaintiff for this period. Cf. Bazaar v. Fortune, 5th Cir. 1973, 476 F.2d 570, 579 n. 17 and accompanying text, rehearing en banc granted May 9, 1973.

1971 summer term. Further, I agree with the majority that “[t]he taint of the 1970-71 activity of defendants carried forward to 1971-72 by inference and was, without more, sufficient to make out a prima facie case.” The triers of fact could not reasonably ignore such recent history, so clearly painted, of adverse Board action toward Dr. Rainey based on constitutionally impermissible grounds. Necessarily, the inference applied also to the decision regarding employment for the 1971 summer term, and on the facts of this case the inference was of such strength that it would require a directed verdict or a judgment n. o. v. for plaintiff.

Rather than rebutting plaintiff’s case below by attempting to show it had acted for permissible reasons, the Board attempted to sidestep it by demonstrating that the Board normally does not, and did not in this case, actually make the hiring decision for the summer term, but delegated this responsibility to the President of the College, Dr. Peoples. It is clear from the record, however, that the Board did in fact play a decisive role in making the summer 1971 decision. Normally, the hiring decisions for the summer term were not made until May, so that the College could hire according to the number of students who enrolled. Deviating from this usual timing, Dr. Peoples wrote Dr. Rainey over two months before May, on February 24, 1971, that he would not be employed by the College for the summer 1971 term or for the 1971-72 long term. This letter was written shortly after Dr. Rainey had requested a position for the summer and after Dr. Peoples had conferred with a Board member concerning the appropriate response. The strong influence of the Board on the contents of the letter is seen clearly in the fact that the 1971-72 hiring decision, which only the Board could make was announced in the same letter with the 1971 summer session decision. The Board effectively made the 1971 summer term decision despite its formal delegation of hiring authority to Dr. Peoples. The evidence contains no hint that its reasons were different from the impermissible ones which underlay the 1970-71 decision.

Even if Dr. Peoples’ reasons are considered distinct from those of the Board, the result is the same. Dr. Peoples at all times admitted Dr. Rainey’s classroom competency and did not purport to rely on insufficient demand as a reason not to hire him for the 1971 summer session. Rather he referred to plaintiff’s opposition to the College administration in the context of his court battle over the 1970-71 term and the adverse effect which the sympathy and support of some teachers for Dr. Rainey’s position had on smooth administration. These difficulties had caused no disruption, but had taken the form of discussion. Cf. Tinker v. Des Moines Independent School District, 1969, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731. Such disagreements between teachers and the school administration regarding the Board’s reaction to Dr. Rainey’s exercise of his First Amendment rights surely can furnish no independent basis for justifying a refusal to hire. The defendants should not be allowed to rely on the existence of a problem which they themselves have created by clearly improper actions. On the record, I would hold that the district court should have granted judgment n. o. v. for the plaintiff with regard to the 1971 summer term, as well as the 1970-71 long term.

1971-72 term. I agree that the jury verdict for defendants regarding the third period is supported by the evidence, but I rely on different evidence than the majority. Unlike the majority, I can discover no evidence in the record which would indicate that the Board relied on reasons for the 1971-72 decision which differed from those for the 1970-71 decision.

Trial testimony did tend to indicate, however, that plaintiff never applied for a teaching position at Jackson State for the 1971-72 term and, in fact, would not have accepted one if offered. Plaintiff received a letter in February 1971 notifying him that the College would not offer him a contract for 1971-72. In December 1970, two months before the letter arrived, plaintiff had applied for admission to Ohio State University for graduate studies. In fact, he did attend Ohio State University in 1971-72 and received a fellowship for that purpose. No evidence in the record shows that plaintiff applied to Jackson State for a position in 1971-72 or expressed a desire for one. If the plaintiff, as the jury could reasonably find, was unwilling to accept a position at Jackson State in 1971-72, he was properly denied judgment for that period. Unless he took the necessary steps to apply for the job and was prepared to accept it, he suffered no wrong when the College failed to give it to him and is entitled to no remedy under 42 U.S.C.A. § 1983.

Attorney’s fees. On the attorney’s fees issue, I agree with the majority that this court’s rejection of Dr. Rainey’s attorney’s fees claim on the original appeal, which concerned jurisdiction, does not bar an attorney’s fees award. I would remand for a determination by the district court in the first instance of the question whether defendants have been “unreasonable and obdurately obstinate,” Jinks v. Mays, 5th Cir. 1972, 464 F.2d 1223, 1228, and if so, when the obstinancy abated, if it did abate. This was the procedure followed in Jinks v. Mays and in Horton v. Lawrence County Board of Education, 5th Cir. 1971, 449 F.2d 793.

      . The defendants are Jackson State College, its president, the members of the Mississippi Board of Trustees of State Institntions of Higher Learning, and the Board’s Executive Secretary.

      . The issue of attorneys’ fees was submitted to tiie jury as. a part of the claim for each of the years in question. It followed from the finding by the jury for defendants on the claims presented that no attorneys’ fees were awarded.

      . To warrant an injunction pending appeal, it must appear that there is “ . . . great likelihood, approaching near certainty, that [applicant] will prevail when his case finally comes to be heard on the merits, . . . ”. Greene v. Fair, 5 Cir., 1963, 314 F.2d 200 at 202. See also McKenzie v. Schuppener, 5 Cir., 1969, 415 F.2d 1056, 1058; Benoit v. Gardner, 1 Cir., 1965, 345 F.2d 792, 793; Ogden v. Department of Transportation, 6 Cir., 1970, 430 F.2d 600, 661.

      . The quoted language is from appellee’s Brief at 13.

      . The majority opinion treats the 1970-71 decision as resting exclusively on constitutionally impermissible grounds and the 1971-72 decision as resting exclusively on permissible grounds. Likewise, the district court, in propounding interrogatories to the jury, asked whether the Board’s decision was based “solely” on impermissible grounds or on no impermissible grounds. This sole-reason approach is unrealistic. Human conduct and decisions most frequently rest on multiple grounds, as the disputed Board action apparently did in this case. We should inquire not whether the ground for the Board’s action was a proper or an improper one, but whether an improper ground was “even partially” a cause of the action taken. See Fluker v. Alabama State Board of Education, 5th Cir. 1971, 441 F.2d 201. Even if permissible reasons played a part in causing a certain action, if the action would not have been taken but for reliance on an additional impermissible ground, it should be held to be sufficiently based on a reason “upon which the government may not rely,” Perry v. Sindermann, 1972, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570, to support a § 1983 action.


source: Caselaw Access Project

author: BRIGHT, Circuit Judge. MEHAFFY, Circuit Judge

license: Public Domain

text:
    Haywood WILLIAMS, Jr., et al., Appellants, v. Elliot L. RICHARDSON, etc., et al., Appellees.
    No. 72-1534.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 12, 1973.
    Decided June 29, 1973.

      David K. Hardy, Kansas City, Mo., for appellants.
    Mary A. Senner, Asst. U. S. Atty., Kansas City, Mo., for appellees.
    Before MEHAFFY, BRIGHT, and ROSS, Circuit Judges.
   BRIGHT, Circuit Judge.

Petitioner, Haywood Williams, Jr., and six other individuals brought this class action for a writ of habeas corpus and for declaratory and injunctive relief against Elliot Richardson, Secretary of Health, Education and Welfare; Richard Kleindienst, Attorney General; Dr. P. J. Ciccone, Director of the United States Medical Center; Norman Carlson, Director of United States Bureau of Prisons; and Wayne Colburn, Director of United States Marshal Services. Petitioners allege infringement of their constitutional rights and the constitutional rights of others of the class. The class encompassed by this action consists of all inmates and patients of the United States Medical Center (the Center) who have been committed to the Center under the provisions of §§ 4244 through 4248 of Title 18, United States Code. The district court held the case inappropriate for class action and dismissed it. We reverse and remand for further proceedings.

The petitioners contend that respondents have failed to provide “constitutionally adequate medical and psychiatric care and treatment for petitioners and to provide that petitioners be free from cruel and unusual punishment and conditions of confinement and transportation while in respondents’ custody.”

In rejecting the complaint, the district court approved the memorandum proposed by the United States Magistrate which stated in part:

The practice of joining a number of petitioners in one habeas corpus case is not believed by this Court to be practical or desirable. Individual inmates having complaints about the conditions of their confinement can bring habeas corpus actions on forms provided for them free of charge and the Federal Public Defender will be appointed to represent them. If individual cases indeed present common questions of law and fact they can be joined for purposes of trial.

The precise question presented by this appeal is whether inmates of the Center may as a group attack their conditions of confinement and treatment while they are committed to the custody of the Attorney General pursuant to 18 U.S.C. §§ 4244-4248.

By way of background, it should be noted that challenges to conditions of confinement are cognizable in habeas corpus. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Mead v. Parker, 464 F.2d 1108 (9th Cir. 1972); Armstrong v. Cardwell, 457 F.2d 34 (6th Cir. 1972). We have repeatedly expressed our view that the Center is a penal institution and one who is confined there suffers incarceration, e. g., Henry v. Ciccone, 440 F.2d 1052 (8th Cir. 1971); Guy v. Ciccone, 439 F.2d 400 (8th Cir. 1971) (concurring opinion), and such holdings are particularly relevant in light of allegations in the complaint that “unsentenced, untried, mentally ill patients” are being confined at the Center without proper medical treatment. Additionally, we note the increasing tendency of federal courts to insist upon adequate medical treatment as a constitutional prerequisite to detention of the mentally ill. United States v. Pardue, 354 F.Supp. 1377 (D.Conn.1973), 13 Cr.L.Rep. 2008 (April 4, 1973); Wyatt v. Stickney, 344 F.Supp. 387 (M.D.Ala.1972); United States v. Walker, 335 F.Supp. 705 (N. D.Cal.1971); United States v. Jackson, 306 F.Supp. 4 (N.D.Cal.1969). See Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966); Martarella v. Kelley, 349 F.Supp. 575 (S.D.N.Y.1972); Cook v. Ciccone, 312 F.Supp. 822 (W.D.Mo.1970).

In regard to the class action issue, as we read the district court’s adopted opinion, a class action is never appropriate in a habeas corpus proceeding. Contrary to the district court’s holding that a class action would not be “practical or desirable,” we think that under certain circumstances a class action provides an appropriate procedure to resolve the claims of a group of petitioners and avoid unnecessary duplication of judicial efforts in considering multiple petitions, holding multiple hearings, ánd writing multiple opinions. See Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1169-73 (1970). Considering the caseload burden of the federal courts, a considerable proportion of which is attributable to criminal appeals, we think that a method by which the common claims of a large group of petitioners may be properly litigated without endangering the individual rights of the class should not be summarily foreclosed unless clearly inappropriate under the circumstances. Even the government’s counsel conceded on oral argument that a habeas corpus class action is not always improper.

The Ninth Circuit has recently held in Mead v. Parker, supra, 464 F.2d 1108, that a habeas corpus petition may seek relief for an appropriate class:

Nor can we agree that a petition for a writ of habeas corpus can never be treated as a class action. Certainly the usual habeas corpus ease relates only to the individual petitioner and to his unique problem. But there can be cases, and this is one of them, where the relief sought can be of immediate benefit to a large and amorphous group. In such cases, it has been held that a class action may be appropriate. [Id. at 1112-1113.]

The Mead court, while not deciding the class action issue, held that it was error for the district court to decide the question without a hearing. At least one district court has permitted six prisoners to bring a habeas corpus class action on behalf of all similarly situated prisoners in Florida. Adderly v. Wainwright, 46 F.R.D. 97 (M.D.Fla.1968).

The class action procedure may very well represent the most appropriate manner of litigating the general claims alleged in the complaint. Thus we hold as error the dismissal of the complaint in the instant action.

In remanding this case to the district court, we adopt the following additional comment from Mead, supra, 464 F.2d at 1112.

it may be that the [district] court will ultimately decide that it is unnecessary to treat this as a class action, perhaps on the theory that, if the petitioners are entitled to relief, the relief will benefit all inmates, whether made parties or not. Or, the court might decide to treat the case as a class action on one or more of the grounds stated in Rule 23(b). A court has considerable latitude in deciding how best to proceed.

Reversed and remanded for further proceedings consistent with this opinion.

MEHAFFY, Circuit Judge

(dissenting).

As I understand it, the narrow holding of the majority’s opinion is that a petition in federal court for habeas corpus may, under appropriate circumstances, be pursued as a class action. I have no significant disagreement with this holding as an abstract principle. I do not believe, however, that the principle stated above supports the result reached by the majority; nor do I feel that the majority’s opinion discusses the question of class action habeas petitions in sufficient detail to afford the district court a reasonable indication of its duty on remand. For these reasons I must respectfully dissent.

I.

The majority’s decision to reverse in this case is based on their conclusion that the district court held a class action never to be appropriate in a habeas corpus proceeding. Majority opinion at . This interpretation of the district court’s opinion apparently stems from the majority’s reading of the following language:

“The practice of joining a number of petitioners in one habeas corpus case is not believed by this Court to be practical or desirable. Individual inmates having complaints about the conditions of their confinement can bring habeas corpus actions on forms provided for them free of charge and the Federal Public Defender will be appointed to represent them. If individual cases indeed present common questions of law and fact they can be joined for purposes of trial.” Williams v. Richardson, supra, at 1.

Although I feel the- language is ambiguous, I can easily understand how the majority might give this passage standing alone the meaning they ascribe to it. I am firmly convinced, however, that the original records in this ease and the related case of Williams v. Ciccone, Civil Action No. 2918-2 (W.D.Mo. June 8, 1972) (unreported) clearly demonstrate the majority’s interpretation to be in error.

Williams v. Ciccone involved a petition for a writ of habeas corpus by two of the named appellants in this case and some seven other inmates of the Springfield Medical Center. The petitioners in Williams v. Ciccone sought to attack the adequacy of their medical treatment and the conditions of their confinement as representatives of a class. Although the district court ordered the Federal Public Defender to assist the petitioners in presenting their case, the petition ultimately filed in Williams v. Ciccone failed to conform to the local rules of the district court for habeas proceedings. More specifically the single joint petition that was filed was not in compliance with the requirement of local rule 22(1) that each habeas petitioner must file his petition on the forms supplied by the court. Apparently recognizing the noncompliance of the single joint petition, counsel for the petitioners moved the district court to waive the requirements of local rule 22(1). The district court did not waive the provisions of the local rules, however, and Judge Collinson dismissed the petition for failure to conform to the requirements of local rule 22(1). In explaining the dismissal Judge Collinson stated:

“This court has prescribed by rule the forms to be used in the filing of all habeas corpus [proceedings] by inmates of the United States Medical Center and copies of these forms are available without charge. These forms are most helpful to the Court and are necessary for the proper processing of the many applications for habeas corpus which this Court receives from the United States Medical Center.” Williams v. Ciccone, supra, at 1 (emphasis supplied).

Although the dismissal in Williams v. Ciccone did not reach the class action aspect of the petition, Judge Collinson went on in his opinion to suggest the procedure he thought would be most appropriate for the petitioners to use in their quest for class relief:

“The practice of joining a number of petitioners in one habeas corpus case is not believed by this Court to be practical or desirable. If this is a proper type of action to be designated a class action, as requested in the complaint, it is only necessary to bring it by one plaintiff to represent the entire class. If it is not a proper class action, the individual petitioners can file separate applications and common questions of fact and law can be joined for purposes of trial.” Williams v. Ciccone, supra, at 1-2.

The message of Williams v. Ciccone seems clear enough: an application for class habeas relief should be presented on the forms required by local rule 22(1) and only one inmate would be needed to represent the class.

Almost immediately after the dismissal in Williams v. Ciccone, petitioners Williams, Lamar, and five other Springfield inmates filed the action that is the subject of this appeal. Once again the Federal Public Defender was appointed to assist the petitioners, and once again a single joint petition was filed which failed to conform with local rule 22(1). The petition was routinely referred to the United States Magistrate, who recommended that “This action should be dismissed for the same reasons advanced by Judge Collinson in Haywood Williams, Jr., et al v. Ciccone. . . .” The magistrate’s Proposed Memorandum and Order then went on to paraphrase Judge Collinson’s Williams v. Ciccone opinion in the language now seized on by the majority to justify its reversal.

As I have already noted, I can understand how the majority might construe the magistrate’s language standing alone to bar class relief in all habeas proceedings. If the majority had. read Judge Collinson’s original language in Williams v. Ciccone more carefully, however, I am sure they would have understood that the district court in both cases was dealing with nothing more than the question of compliance with local rule 22(1). If there were something about local rule 22(1) that, in practical effect, rendered class relief unavailable I might be persuaded to concur in the result reached by the majority. But rule 22(1) has no such effect. All the rule requires is that the inmates utilize the standardized forms which the court has carefully developed to expedite its handling of post-conviction petitions. Indeed the only comments which the district court addressed to the class action aspect of the petitions in either case was the suggestion that it would be more practical and desirable to have only one petitioner as the named representative of the class. As I understand this comment, it is not only a sensible suggestion, but also an express recognition that class relief could well be appropriate in petitioners’ case.

II.

The remand in this case ostensibly directs the district court to determine whether or not this case is one in which a class action would be appropriate. Unfortunately the majority opinion gives little indication of what factors should be considered in making this determination. Furthermore, the majority fails to outline the extent of the proceedings they expect to be held on remand. (For example, the majority likens this case to Mead v. Parker, which' required a hearing on remand, but fails to state whether they expect the district court to hold a hearing to comply with their mandate.). In light of these shortcomings I feel compelled to make some general observations.

Under federal law habeas corpus is generally characterized as a civil action, but this characterization does not mean that the Federal Rules of Civil Procedure are automatically and completely applicable. Federal habeas corpus is a uniquely personal remedy with its own distinct procedures which are deeply rooted in tradition and statute. Federal Rule 81(a)(2) expressly recognizes this unique nature of habeas by providing that the Federal Rules of Civil Procedure are applicable to habeas only to the extent that the rules conform to prior practice and do not conflict with the habeas statute. Although, as the majority notes, the habeas remedy has been liberalized greatly in recent years, I do not think we have yet reached the point where a habeas petitioner has the automatic right to utilize all of the modern civil procedure devices embodied in' the Federal Rules. Instead, I am convinced that Fed.R.Civ.P. 81(a)(2) precludes any automatic and complete application of the Federal Rules in habeas. My opinion in this regard is bolstered by the Supreme Court’s holding in Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), which refused to extend the discovery procedures of Fed. R.Civ.P. 33 to petitioners in habeas. Although the majority opinion in Harris expressly refrained from commenting on the applicability of Rule 23 to habeas, 394 U.S. at 294 n. 5, 89 S.Ct. 1082, I am convinced that the Court’s logic in that case compels a similar conclusion here; i.e. that Rule 23 is not automatically and completely applicable to habeas, but that the district court may fashion appropriate procedures by analogy to Rule 23 whenever it concludes that justice so requires.

My analysis of the habeas class action issue in light of Rule 81(a) (2) and Harris v. Nelson is in complete conformity with every one of the relevant reported cases that I have been able to locate. None of the reported eases holds Rule 23 to be available in habeas as a matter of right. Instead these cases recognize the wisdom and practicality of using Rule 23 or an analogous procedure in habeas where such a procedure would materially advance the interests of justice and judicial economy. Furthermore, the only one of these cases decided at the circuit level or higher stresses the importance of the district court, rather than some remote appellate court, in deciding what procedure the district court should use.

Finally, in reviewing the class action habeas cases that I have been able to find, I am struck by their uniform dissimilarity to this ease in one important respect. In each of the other cases the class of petitioners was presenting a single legal argument which, once resolved would be resolved finally and for all members of the class. Only a cursory reading of the allegations in this case is necessary to raise serious doubts about the finality with which appellants’ purportedly class claims could be resolved. There is also serious doubt about the extent to which appellants’ petition raises questions of either law or fact that are in any way common to the whole class. Indeed, even if each of the allegations of brutality, inadequate medical treatment, etc. were true as to all of the petitioners, I feel that they would be true as to each petitioner only because of that petitioner’s individual needs and treatment.

While the district court may justifiably question the wisdom of heeding a mere dissenting opinion’s guidance, I feel it necessary to make three suggestions in closing. First, I commend the district court’s careful attention to the as yet unresolved issue of whether the allegations of this petition qualify for class action treatment even under the requirements for normal civil actions. Second, I urge the district court to consider the fact that all of the relevant decisions, with the possible exception of the majority opinion, stress the broad latitude given the district court in deciding whether or not multiparty habeas procedure is best suited to the problems presented in the petition. Finally, in light of the statement in oral argument that all or most of the petitioners in this case have been released, I would caution the district court against construing the majority’s opinion as a license to issue itself letters patent as a roving commission of reform regardless of whether there are any parties left to back up the petitioners’ extreme claims.

      . The petitioners make the following specific complaints regarding treatment afforded members of the class at the Center:
      (a) Respondents have failed to provide constitutionally adequate medical care and treatment contemplated by Congress in enacting §§ 4244-4248, Title 18, United States Code.
      (b) Petitioners are denied adequate psychiatric treatment and care by confinement to the custody of the Attorney General in a penal institution and are denied psychiatric treatment and care received by other individuals committed to the Department of Mental Health and Hygiene.
      (c) There is an insufficient number of qualified psychiatric personnel to administer adequate treatment to petitioners and the personnel-patient ratio for psychiatrists, psychiatric nurses, psychologists, social workers and psychiatric therapists fails to conform to minimum standards for adequate treatment.
      (d) Psychiatric technicians, attendants and orderlies are not employed in sufficient number to maintain the Medical Center in a clean and sanitary manner required by psychiatric patients.
      (e) Psychiatric care for petitioners confined at the Medical Center is virtually non-existent and there are no individualized treatment plans, but treatment consists of the administration of tranquilizers and drugs administered solely by lay custodial personnel to keep petitioners amenable to their conditions of confinement. The supervision of the administration of said drugs is totally inadequate.
      (f) The confinement of unsentenced, untried, mentally ill patients at the Medical Center is purely penal and the conditions of their confinement constitute cruel and unusual punishment.
      (g) Petitioners and the members of their class suffer the infliction of unnecessarily harsh physical force beyond that required for self-defense or prevention of violence. Tear gas, chemical Mace and other chemicals are used against petitioners when not required to protect life or property or to prevent violence. Petitioners are confined in “strip” cells which are completely enclosed, lack any furniture or mattresses and are without toilet, sink or running water.
      (h) Petitioners and the members of the class they represent are subjected to cruel and unusual punishment by the United States Marshals Service for complaining of the conditions of their confinement during transportation from court to the United States Medical Center. Petitioners are punished for requesting psychiatric care and other necessary medical attention while being transported. Petitioners are punished for requesting emergency air transportation and for refusing to allow their hair to be cut.

      . In pertinent part the district court’s rule reads as follows :
      “Petitions for a writ of habeas corpus and motions filed pursuant to 28 U.S.C. Section 2255 (attacking a sentence imposed by this Court), by persons in custody, shall be in writing, signed and verified. Such petitions and motions shall he on forms supplied hy the Court.” (Emphasis supplied.)

      . In strictly technical terms Judge Collin-son did not dismiss the action in Williams v. Ciccone. He merely denied leave to proceed in forma pauperis. For all practical purposes, however, the denial of leave to proceed in forma pauperis may be considered as a dismissal.

      . The language quoted by the majority opinion at 360 and repeated in this dissent at 362 was actually written by the United States Magistrate in the Proposed Memorandum and Order he prepared for the district court. The Proposed Memorandum and Order was adopted by Judge Collinson without alteration.

      . The forms used in the Western District of Missouri are copied from the forms discussed and reprinted at 33 F.R.D. 382-384, 391-408 (1963). It is relevant to note that the forms and other procedures used by the district court in the Western District of Missouri are the products of very careful thought and planning. See generally Becker, Collateral Post-Conviction Review of State and Federal Criminal Judgments on Habeas Corpus and Section 2255 Motions — View of a District Judge, 33 F.R.D. 452 (1963) ; Oliver, Postconviction Applications Viewed by a Federal Judge, 39 F.R.D. 281 (1965) ; Oliver, Postconviction Applications Viewed by a Federal Judge — Revisited, 45 F.R.D. 199 (1968). Furthermore, the decision in Williams v. Ciccone not to waive the requirements of rule 22 (1) was not one that was made casually. In point of fact the entire district court conferred on the matter and Judge Collin-son’s opinion had the express concurrence of the district court en l>anc.

      . My research has revealed only six previously reported instances in which a federal court has been presented with a habeas petition seeking class relief. The two earliest cases involved separate but similar and virtually simultaneous attacks on various aspects of the death penalty. Hill v. Nelson, 272 F.Supp. 790 (N.D.Cal.1967) ; Adderly v. Wainwright, 272 F.Supp. 530 (M.D.Fla.1967). In Sill the district court held that class relief could be granted in habeas but that the attack presented could best be handled by consolidation rather than class action. 272 F.Supp. 794-795; see Modesto v. Nelson, 296 F.Supp. 1375 (N.D.Cal.1968). In Adderly the court concluded that class relief was appropriate, and the action was ordered to proceed under the provisions of Fed.R.Civ.P. 23. Adderly v. Wainwright, 46 F.R.D. 97 (M.D.Fla.1968). The next case, chronologically, involved a class attack on the convictions and the incarcerations for curfew violation during the 1968 disturbances in Baltimore. Mitchell v. Schoonfield, 285 F.Supp. 728 (D.Md. 1968). In Mitchell, however, the court refused to address the class action issue squarely because many petitioners had failed to exhaust their state remedies. 285 F.Supp. at 729. See also Arthur v. Schoonfield, 315 F.Supp. 548 (D.Md. 1970), in which the Maryland district court was again able to avoid the class action issue, this time by the use of joinder. The fourth case is Cantrell v. Folsom, 332 F.Supp. 767 (M.D.Fla.1971), which presented a class attack on the constitutionality, on its face, of a Florida vagrancy ordinance. The district court in Cantrell allowed the case to proceed as a normal class action and ultimately granted declaratory relief. The fifth ease, Mead v. Parker, 464 F.2d 1108 (9th Cir. 1972), which is cited by the majority, involved an attack by several petitioners, as representatives of the entire inmate population of McNeil Island Federal Penitentiary, on the adequacy of the prison’s law library. On appeal the Ninth Circuit reversed the district court’s holding that class relief was never available in habeas and remanded the case for a determination of whether the petition should be allowed to proceed as a class action. The last of the cases dealing with Rule 23 in habeas is Daigle v. Warner, 348 F.Supp. 1074 (D.Hawaii 1972). In Daigle the petitioners were servicemen who had been incarcerated after summary courts martial in which they had not been afforded any right to counsel, allegedly in violation of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Although the district court did not grant all of the relief sought by the petitioners, the case was allowed to proceed as a class action and the relief that was granted to the petitioners was granted to them as a class.

      . Mead v. Parker, 464 F.2d 1108, 1112-1113 (9th Cir. 1972). See also Harris v. Nelson, 394 U.S. 286, 300 n. 7, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969).

      . See note 5, supra.


author: DYER, Circuit Judge:

text:
    Edward J. JAPHE, Plaintiff-Appellant, v. A-T-O INC., formerly “Automatic” Sprinkler Corporation of America, Defendant-Third Party Plaintiff-Appellee, v. Albert E. AMOS et al., Third Party Defendants.
    No. 72-3211.
    United States Court of Appeals, Fifth Circuit.
    June 25, 1973.

      Eugene T. Branch, Earle B. May, Jr., Atlanta, Ga., for plaintiff-appellant.
    Richard Sinkfield, C. B. Rogers, Atlanta, Ga., for A-T-.O.
    Ronald L. Reid, Atlanta, Ga., for Amos and others.
    Before TUTTLE, THORNBERRY and DYER, Circuit Judges.
   DYER, Circuit Judge:

Japhe sued for damages for violation of § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 in connection with the acquisition by A-T-0, Inc., of the outstanding stock of Advance Industrial Security, Inc., owned by Japhe, or for reformation of the purchase and sale agreement on the grounds of mutual mistake. The jury found for A-T-0 on the securities count and the district court denied Japhe’s claims for equitable relief. From the final judgment entered for A-T-0 on both counts Japhe appeals. We affirm.

In limine it is important to point out that Japhe does not assert on appeal that the evidence submitted to the jury was insufficient to support the verdict. His points on appeal may be fairly stated as follows: with respect to the Securities Exchange Act count, the district court erred in giving certain instructions to the jury and it erred in excluding evidence offered by Japhe; with respect to the equitable relief sought, the findings of fact by the district court were clearly erroneous.

Japhe was the sole stockholder, president, and executive officer of Advance Industrial Security, a corporation engaged in the business of providing security guard service and security systems for large companies. Negotiations to merge Advance with A-T-0 (formerly Automatic Sprinkler Corporation of America) were begun in the late spring of 1967. A-T-0, while perhaps not technically a conglomerate, had acquired a number of companies engaged in the production and sale of allied products and during this time was continuing to do so.

On May 24, 1967, a specific proposal was made by A-T-0 to Japhe for an exchange of stock, the continuation of Advance as a wholly owned subsidiary of A-T-0, and the employment of Japhe as president of the subsidiary for a five-year term. Japhe was informed that any information he desired concerning A-T-0 would be made available to him. Japhe was given the annual reports of A-T-0 and he had studied the published materials concerning it. A-T-0 agreed to bear the expense of an independent legal advisor and a financial advisor, to be chosen by Japhe, to evaluate the proposal and to make an analysis of A-T-0 for him. Accordingly, Japhe selected and employed a New York securities concern, New York Securities Co., Inc., (Slade), and retained the New York law firm of Dunnington, Bartholow & Miller (Saunders), to be paid $20,000 and $10,000 respectively. A-T-0 was informed of the arrangement, agreed to, and did pay the fees for Japhe. Japhe met with his advisors in New York and Cleveland on subsequent occasions.

Japhe’s financial advisors informed him that A-T-O’s stock was overpriced, 30 to 50 times earnings; that it was not recession tested, and was not a sure-thing in the fickle stock market; that the underlying components of A-T-0 did not deserve a very high price-earnings ratio; that they were not convinced that the management capabilities were exceptional or outstanding; that the stock was volatile, and that there was a possibility for a big swing in the market price. Nevertheless, they recommended the deal, principally because of the proposed 1969 payout formula, with which we shall later concern ourselves.

Negotiations continued between the parties, their advisors, and attorneys. On July 14, 1967, Japhe sent A-T-0 a letter of intent which was accepted by it. This was followed by drafts of a proposed agreement in August and September. The transaction was finally closed on November 13,1967.

The provision of the agreement critical to this action was that Japhe, in return for his stock in Advance, was to receive immediately, as an initial payment, a number of A-T-0 shares equal to fifteen times the after-tax earnings of Advance for fiscal 1966 (which amounted to 13,760 shares of A-T-0 based upon $38,000 earnings). The agreement further provided for a payout formula as follows: at the end of Advance’s 1968-1969 fiscal year (April 30, 1969), Japhe would receive such additional A-T-0 shares, if any, as would be required to equal the difference between fifteen times Advance’s fiscal year earnings and the number of shares of A-T-0 already received by Japhe, provided, however, that the additional number of shares would not exceed one hundred thousand.

While there was much discussion between the parties about making the merger tax free and about the necessity under the regulations of the Internal Revenue that the total number of shares received by Japhe should not exceed double the number of shares initially issued, Japhe and his advisors decided upon the 100,000 share ceiling because it would be “so far out in left field that it just would never have any bearing whatever on this.” Furthermore, a separate agreement was executed at the time of closing that provided, inter alia, that if Japhe received more shares of A-T-0 on the payout formula than he had initially received, A-T-0 would free sufficient shares from the resale restriction so that Japhe could sell them to pay the tax.

At the time of closing, November 13, 1967, A-T-0 stock was selling at $45,00 per share. Between then and the formula payout date, April 26, 1969 (advanced by agreement of the parties from April 30, 1969), A-T-0 stock rose and fell and was finally calculated at $19.33 per share for payout purposes. When translated into A-T-0 shares, this would have required the transfer from A-T-0 to Japhe of 198,726 shares but for the ceiling limitation in the contract of 100,000 shares. In May of 1969, AT-0 tendered 100,000 shares to Japhe who refused the tender and brought this action for reformation of the agreement to remove the 100,000 share ceiling and thus obtain an additional 98,726 shares, or in the alternative for damages for alleged violations of § 10(b) and Rule 10b-5.

While the equitable and legal actions of Japhe were necessarily premised on different bases for recovery, i. e., mutual mistake requiring reformation visa-vis misrepresentation, concealment, and course of conduct violative of the Act and Rule, the evidence adduced to prove both alleged causes of action was identical. Japhe does not suggest, nor could he, that his action for damages should not have been submitted to the jury. He likewise does not and cannot contend that there was not substantial evidence to support the verdict against him (although he does assign error with respect to the charges given by the court which we will discuss later). Thus he finds himself in the anomalous position of complaining that on identical evidence the jury found against him but that the trial court’s findings should have been in his favor.

Claim for Equitable Relief

Succinctly stated, Japhe argues that the district court’s findings of fact were clearly erroneous because the evidence demanded a judgment granting reformation of the agreement by eliminating the 100,000 share proviso by reason of the mutual mistake of the parties as to the current earnings, business conditions, financial condition, and immediate business prospects of A-T-0 at the time of the insertion of the proviso and at the time of the execution of the agreement on November 13, 1967. Japhe contends that the A-T-0 officials either did not know of the true current condition of the company, or that they knew but misrepresented and concealed from Japhe the facts which would have influenced his determination of the amount of the maximum share provision. Japhe further contends that the top management of A-T-0 engaged in a course of conduct of deception, fraud, and market manipulation.

It is uncontradicted that the 100,000 share proviso was initiated by Japhe and his advisors. Nevertheless, Japhe argues that there was an erroneously shared assumption with respect to AT-O’s current condition or that the mistake was wrongfully induced by (1) misrepresentations made in mid-1967 that A-T-0 was embarking upon its most profitable six month period and reports thereafter that goals were being met; (2) concealment of the internal operations which would have shown that earnings worsened beginning with June 1967; (3) an aggressive acquisition program to purchase profits through acquisitions needed to offset the difference in earnings in 1967 compared to those of 1966; (4) projections and predictions of profits for 1967 and 1968 which A-T-0 knew were not obtainable but which were designed to increase the price of A-T-0 stock so as to aid the acquisition program.

It would serve no useful purpose to relate the voluminous evidence adduced by each side pro and con concerning these issues. Suffice it to say that AT-0 hotly contested whether it was guilty of any wrongdoing or negligence and whether there was any mistake on its part with respect to the 100,000 share proviso.

The district court found, and Japhe concedes, that the 100,000 share provision was selected by Japhe; that the proviso language is clear; and that the parties knew the meaning of the language used. It also found that there was no misrepresentation of a material fact or concealment of a material fact which induced Japhe to enter into the agreement and no misrepresentation of a material fact which induced Japhe to select the 100,000 share figure. Japhe, assuming while not conceding this, nevertheless urges that A-T-0 was negligently ignorant of its own internal financial and operation statements and that he is therefore entitled to reformation. This is, of course, denied by AT-O. After a careful consideration of the record, we are unable to find any support for Japhe’s position.

In short, it appears that the mistake made by Japhe was his failure to make as good a bargain as he expected, or his mistake was with respect to collateral matters to the contract — that is, the future earnings of Advance and the future value of A-T-0 stock. Such a mistake does not give rise to the reformation of a contract under Ohio law which is applicable here.

A mistake, to be a ground for reformation must be material, that is, one which will substantially affect the rights and obligations of the parties to the instrument. Moreover, it must be a mistake in reducing a contract to writing, not a mere error in settling the terms of the contract by which a party has failed to make as good a bargain as he expected, nor a mistake with regard to a collateral matter.

47 Ohio Jur.2d, Reformation of Instruments § 13, p. 136.

Japhe’s argument that it was his intent to have the proviso binding for tax purposes but not binding for payout purposes is unpersuasive, especially in view of his testimony that he simply picked the 100,000 share figure from “so far out in left field that it just would never have any bearing whatever.” This underscores that the “mistake” was not with respect to a failure of the agreement to correctly reflect the intent of the parties, but rather that Japhe failed to anticipate that a collateral matter would render the provision of the contract operative. An analogous situation was presented in General Motors Corp. v. Swan Carburetor Co., 6 Cir. 1937, 88 F.2d 876, 883, cert. denied, 302 U.S. 691, 58 S.Ct. 49, 82 L.Ed. 534, in which the court said: “where the parties deliberately contracted with reference to a future fact, uncertain in detail and realized somewhat differently from what the parties expected [and] . . . [t]he writing accurately expressed the agreement, even if appellant was mistaken so far as the scope of the patent was concerned” no basis for reformation was shown.

Equally important, we agree with the district court that there is no clear and convincing evidence of a mistake on the part of A-T-O. It is horn-book law that a contract cannot be reformed on the basis of a mistake that is not mutual.

When the right to reform an instrument is based solely on a mistake, it is generally necessary that the mistake be mutual and that both parties understood the contract to be as the petition alleges it ought to have been and as in fact it was, except for the mistake. This is so whether the mistake is one of fact or of law; in either case the mistake must be mutual, not that of one of the parties alone and must be established by clear and convincing evidence.

47 Ohio Jur.2d, Reformation of Instruments § 16, p. 140-41.

Finally, while paying lip service to the clearly erroneous test of Rule 52(a), Fed.R.Civ.P., on our review of the district court’s fact findings, Japhe’s briefs and arguments are predicated upon facts, inferences and conclusions that the trial court neither found nor was compelled to find. As we explained in Movible Offshore, Inc. v. M/V Wilken A. Falgout, 5 Cir. 1973, 471 F.2d 268, 271, “[t]he question is not simply whether the reviewing court would have found otherwise but whether the trial court could permissibly find as it did. The reviewing court should upset a finding only when it ‘is convinced on the whole record that the finding does not reflect the truth and right of the case.’ Wright, Federal Courts § 96, at 432.” See Wolf v. Frank, 5 Cir. 1973, 477 F.2d 467.

We conclude that the district court’s findings of fact are not clearly erroneous but, on the contrary, are supported by substantial evidence. By the same token we are left with the definite and firm conviction that a mistake was not committed. United States v. United States Gypsum Co., 1948, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746.

Exhibits Offered in Evidence by Jwphe

Japhe complains that the district court improperly excluded certain exhibits. He offered a transcript of a speech made by the president of A-T-O at a New York securities analysts’ meeting on November 17, 1967, (four days after the acquisition agreement was executed by Japhe and A-T-O). Japhe contends that the speech contains misrepresentations, indicates concealments concerning A-T-O’s earnings, and was evidence of a course of conduct of A-T-O between June of 1967 and the early part of 1968. In sustaining an objection to the exhibit the court noted that the speech contained many extraneous matters that were not material to any issues of the case. We agree. More importantly, however, there was an abundance of other evidence that fully exploited the contents of the speech. In fact, Japhe’s counsel conceded that “we think the speech, of course, has been gone into at length.”

It is manifest that the other four documents offered by Japhe and to which an objection was sustained were properly excluded as hearsay and repetitive. Furthermore, the contents of each exhibit were fully covered by other evidence before the jury. There can be no prejudice to a party by the exclusion of proffered evidence where “the full import of most, if not all, of that evidence got before the jury in some form before the trial was concluded.” Curtis Publishing Co. v. Butts, 5 Cir. 1965, 351 F.2d 702, 716. Rule 61, Fed.R.Civ.P.

Refusal to Charge As Requested by Japhe

The purport of Japhe’s requested charges 3, 4, and 5 was to have the jury, consider the purpose, meaning, and intent of Congress in the enactment of the Act and the promulgation of Rule 10b-5. Counsel has cited us no authority, and we have found none, which would support his argument that the court was required to so instruct the jury. We entertain serious doubts that the requested charges would have been proper. As this Court recently said:

Considered alone, the sweeping language of Rule 10b-5 creates an almost completely undefined liability. All that the rule requires for its violation is that someone “do something bad” [Citation omitted], in connection with the purchase or sale of securities. Without further delineation, civil liability is formless, and the area of proscribed activity could become so great that the beneficial aspects of the rule would not warrant the proscription.

Herpich v. Wallace, 5 Cir. 1970, 430 F. 2d 792, 804.

In any event the court charged the jury in the express language of Rule 10b-5. This was sufficient.

Japhe next assigns error in the refusal of the court to give his requested charges 8A, 9, 10, and 11.

Japhe’s charges 8A and 9 were requested to present the issues of misrepresentation, concealment, and course of conduct occurring after November 13, 1967, the date the agreement was signed. Requested charges 10 and 11 were framed to inform the jury that, if after November 13, 1967, A-T-0 through fraudulent or deceptive acts or a course of business caused the value in its stock to drop, it would be liable and, in this connection, the jury could consider the public and private statements of the company’s officers made after November 13, 1967.

Japhe argues that the failure to give these charges resulted in withdrawing from the jury the acts or representations of A-T-0 subsequent to November 13, 1967; that the conduct and statements were so close in time to the closing date that they were material and relevant; and that, in any event, the contract was not completely performed until April 26, 1969. Furthermore, he argues, the court refused to charge on course of conduct. We find no merit to these contentions.

The district court very liberally permitted Japhe to introduce evidence of claimed misrepresentations, concealments and course of conduct subsequent to November 13, 1967. In his closing argument Japhe’s counsel repeatedly referred to misrepresentations and concealments allegedly made by A-T-0 after the closing date. The court specifically charged the jury to consider the misrepresentations and concealments that were outlined to them in counsel’s presentations.

We think the charges given not only amply presented the issues including the alleged post-closing representations, but were probably more favorable to Japhe than he was entitled. It must be remembered that his basic claim was that either he had been induced by false statements or had acted in ignorance of concealed facts in selecting his ceiling of 100,000 shares or in entering into the agreement at all.

Instructions regarding the non-essentiality of specific intent to defraud and the sufficiency of a mere showing of lack of diligence, constructive fraud, or negligent conduct on the part of the de> fendant to establish liability were re quested by Japhe in charges 12 and 12A He contends that by refusing these instructions the court placed a heavier burden on him than required by law, i. e., that he must prove intentional fraud. Again we disagree.

The instructions to the jury given by the district court were either as requested by Japhe, or the charges as a whole were more favorable than the standards he requested. As charged, Japhe could have prevailed if the jury had found that A-T-0 merely did some act which was injurious to or took unfair advantage of Japhe. Furthermore, if the jury had found that a fact was misstated and was material, albeit innocently made, it would have fallen within the ambit of the court’s charge on fraud. We perceive no error in the charges as given or in refusing the charges tendered.

It is, of course, elementary that the charges given must be considered as a whole. As thus viewed, the charges sub judice adequately set forth the applicable law and the theories and contentions of the parties. It was not essential that they follow the language in the requests to charge. As we recently pointed out in Delancey v. Motichek Towing Service, Inc., 5 Cir. 1970, 427 F.2d 897, 902:

A litigant is entitled to have a trial judge advise the jury of his claims and theories of law, if they are supported by the evidence and brought to the attention of the court. Nehring v. Empress Lineas Maritimas Argentinas, 5 Cir. 1968, 401 F.2d 767; Marshall v. Isthmian Lines, Inc., 5 Cir. 1964, 334 F.2d 131; Oliveras v. United States Lines Co., 2 Cir. 1963, 318 F.2d 890. The court is not required to give instructions in the language and form a litigant’s lawyer fancies. The court has “considerable latitude in the choice of language used to convey to the jury in a clear and correct fashion the applicable law”. Kayo Oil Co. v. Sammons, 5 Cir., 1963, 321 F.2d 729, 730. See also Nowell v. Dick, 5 Cir. 1969, 413 F.2d 1204. If the instruction as given sufficiently covers the case so that a jury can intelligently determine the questions presented, the judgment will not be disturbed because further amplification is refused. United States v. Bayer, 1947, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 654; Ohio & Mass. Ry. v. McCarthy, 1878, 96 U.S. 258, 24 L.Ed. 693.

Charges Requested by A-T-0 and Given by the Court

Japhe assigns error in the court’s having given seven of the charges requested by A-T-O. We have considered the charges separately and find that each charge states correct principles of law properly adapted to the facts of the case. The charges are, in large measure, supported by SEC v. Texas Gulf Sulphur Co., 2 Cir. 1968, 401 F.2d 833; Myzel v. Fields, 8 Cir. 1967, 386 F.2d 718; Clement A. Evans & Co. v. McAlpine, 5 Cir. 1970, 434 F.2d 100; and Herpich v. Wallace, 5 Cir. 1970, 430 F.2d 792.

Convinced that Japhe had a full and fair trial before the court and jury on all issues raised by him and that the errors assigned by him are without merit, the judgment of the district court is

Affirmed.

      . Exhibit 47.

      . Equity Research Associates Memo, November 24, 1967, Ex. 49; Memo, Peb. 15, 1968, Ex. 50; letter from Argus Research Corp. to A-T-0 with Weekly Staff Report, November 22, 1967, Ex. 52; and Kidder and Peabody Report, dated sometimes subsequent to November 17, 1967, Ex. 53.

      . Although Japhe assigned error in the exclusion of the Notice of Special Meeting of Stockholders of George J. Meyer Mfg. Co. and proxy statement, Peb. 12, 1968, Ex. 78, the record clearly discloses that the exhibit was admitted in evidence.

      . The district court declined to give charges requested by Japhe numbered 3, 4, 5, 8A, 9, 10, 11, 12, and 12A. No useful purpose would be served in reproducing the charges here.

      . The objection to the charge contained in paragraph 9 is so oblique that it is unintelligible. No objection was made to the charge contained in paragraph 11.

      . The A-T-0 requested charges are not identified in appellant’s brief or in the appendix as specific numbered requests but are incorporated by reference as paragraphs 7 to 14 inclusive of the “Issues to be presented for review” section of the Agreement of Counsel concerning the contents of the appendix.


author: FIELD, Circuit Judge: BUTZNER, Circuit Judge

text:
    Joseph W. SPANGLER, Appellant, v. KRANCO, INC., Appellee.
    No. 72-2357.
    United States Court of Appeals, Fourth Circuit.
    Argued March 6, 1973.
    Decided June 28, 1973.

      James A. Eichner, Richmond, Va. (Allen, Allen, Allen & Allen, Richmond, Va. on brief) for appellant.
    Edward A. Marks, Jr., Richmond Va. (Frank B. Miller, III, and Sands, Anders son, Marks & Clarke, Richmond, Va., on brief) for appellee.
    Before BOREMAN, Senior Circuit Judge, and BUTZNER and FIELD, Circuit Judges.
   FIELD, Circuit Judge:

In this diversity suit Joseph W. Spangler appeals from the action of the district court in directing a verdict in favor of the defendant Kranco, Inc.

To a large degree the facts are undisputed. On March 25, 1971, Spangler was struck by an overhead pendant crane while working as a pipefitter on a platform at a Reynolds Metals Company plant which was then under construction in Richmond, Virginia. At the time of his injury Spangler was an employee of Union Plumbing and Heating, a sub-eon-tractor of Reynolds, and the crane was being operated by a Reynolds employee. The Crane which injured Spangler was one of three which had been manufactured by Kranco, Inc. in accordance with the plans and specifications of Reynolds. Kranco shipped the cranes to Richmond and under the purchase agreement Reynolds had the responsibility of installing them in the plant. While Reynolds purchased the three cranes primarily for the purpose of moving large coils of aluminum in its manufacturing operation, they were initially installed and utilized incident to the construction of the facility. At the time the crane was manufactured and shipped by Kranco it was not equipped with any bells or warning device to be activated when it was placed in motion and neither the proposals nor the plans and specifications of Reynolds called for such a warning device to be installed. In his complaint the plaintiff alleged negligence on the part of Kranco in failing to equip the crane with such a bell or other warning device and further charged that its failure to do so rendered the crane inherently dangerous. Concluding that the evidence supported neither of the theories advanced by the plaintiff, the district judge took the case from the jury. We affirm.

Suggesting the absence of controlling Virginia authority, the plaintiff appears to rely heavily upon our decisions in Spruill v. Boyle Midway, Incorporated, 308 F.2d 79 (4 Cir. 1962), and Gardner v. Q. H. S., Inc., 448 F.2d 238 (4 Cir. 1971). Reliance on Spruill misses the mark completely since it involved a poten tionally lethal product (furniture polish) which the court found to be inherently dangerous in the case of an infant whose ingestion thereof fell within the area of reasonable foreseeability. In Gardner, we recognized that

“the law has now reached the stage of development that a supplier and a manufacturer of a chattel are liable to all whom they should expect will use the chattel or be endangered by its use if (a) they know or have reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, (b) they lack reason to believe that the user will realize the potential danger, and (c) they fail to exercise reasonable care to inform of its dangerous condition or of the facts which make it likely to be dangerous. 2 Restatement of Torts, 2d §§ 388 and 395 (1965 Ed.)”

Applying the criteria of the Restatement in that case, we recognized the presence of a latent hazard and concluded that the defendant knew or ■ should have known that its product would be subjected under certain circumstances to uncontrolled heat which would exceed the normal ignition point of the paraffin content of the hair curlers.

The rationale of Gardner, however, places no liability upon Kranco in the present case. There was no defect in the crane itself nor in it any latent quality which caused Spangler’s injury. True, there was no bell or warning device but the reasonable need for such equipment depended upon the environment in which it was used by Reynolds after it was received in Richmond. Assuming that its use in the construction phase required a warning device, such a hazard was open and obvious to Reynolds and its personnel and the responsibility rested upon them not upon Kranco. Clearly, the undisputed facts place this case outside the ambit of the Restatement principle as applied in Gardner. Nor do we perceive any deficiencies of design such as those present in Zahora v. Harnischfeger Corporation, 404 F.2d 172 (7 Cir. 1968), and Pike v. Hough, 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229 (Sup.Ct.Cal.1970), cited to us by plaintiff in support of his position.

We find additional support for the action of the district judge in the principle that the products liability rule holding a manufacturer liable does not apply where the product has been manufactured in accordance with the plans and specifications of the purchaser except when such plans are so obviously dangerous that they should not reasonably be followed. Littlehale v. E. I. du Pont, etc. & Co., 268 F.Supp. 791, 802 n. 16, (S.D.N.Y.1966), aff’d 380 F.2d 274 (2 Cir. 1967); Davis v. Henderlong Lumber Co., 221 F.Supp. 129 (N.D.Ind. 1963). Cf. Greater Richmond, etc., Inc. v. A. H. Ewings Sons, Inc., 200 Va. 593, 106 S.E.2d 595. While we do not suggest that the foregoing principle should be applied to immunize a manufacturer from liability in every case, we are of the opinion that Kranco acted reasonably in relying upon Reynolds’ industrial expertise and following its plans and specifications, especially since it is conceded that neither the National Safety Code nor the Occupational Health and Safety Act require warning devices on pendant operated cranes such as the one here in question.

Finally, the plaintiff points out that Raymond Sheets, a representative of Kranco, testified that he visited the plant some four months prior to Spangler’s injury and suggested to Reynolds that a warning device be placed on the three cranes, but that his testimony on this point was disputed by representatives of Reynolds. In our opinion, whether Sheets offered such gratuitous advice is of no operative significance in this controversy, since the hazard was one which by its nature was open and obvious to Reynolds as the operator of the cranes.

The judgment of the district court will be affirmed.

Affirmed.

BUTZNER, Circuit Judge

(dissenting) :

I dissent because I believe the district court erred in withdrawing the case from the jury. Under Virginia law, the manufacture of a product, which— though not dangerous in itself — becomes dangerous when it is used in its customary or ordinary manner, owes a duty of reasonable care to any person who might foreseeably be injured because of the product’s negligent design or manufacture. Olds v. Wood, 196 Va. 960, 86 S. E.2d 32, 34 (1955) (dictum); Restatement (2d) of Torts §§ 388, 395, 398 (1965). While it may be said that Kranco’s crane was not inherently dangerous, it cannot be doubted that it became dangerous when it silently bore down on Spangler as he performed his assigned task in its path. Customer specifications do not insulate a manufacturer from liability to third persons who might foreseeably be injured by negligent design or fabrication, although the specifications might offer the manufacturer a defense in an action brought by the customer. Cf. Wirth v. Clark Equipment Co., 457 F.2d 1262, 1267 (9th Cir. 1972), cert. denied, 409 U.S. 876, 93 S.Ct. 127, 34 L.Ed.2d 129 (1972) Here there is no suggestion that Spangler acquiesced in the specifications Reynolds furnished Kranco. Nor does Kranco’s alleged compliance with industry standards or safety legislation, even if proved, place the question of its exercise of due care beyond inquiry of the jury. Texas & P. Ry. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 47 L.Ed. 905 (1903); Bly v. Southern Ry., 183 Va. 162, 31 S.E.2d 564, 569 (1944).

When reasonable men can draw competing inferences of negligence from the evidence, the seventh amendment requires that the issues be submitted to the jury. Moore v. Guthrie Hospital, Inc., 403 F.2d 366, 367 (4th Cir. 1968). From the following proffer of evidence and from the following testimony admitted at the trial, I believe that reasonable men could differ over the issue of whether Kranco negligently designed and manufactured the crane with knowledge that the crane might foreseeably injure third persons when used in the customary manner:

|f The excluded opinion testimony proffered by Spangler’s expert witness that warning devices should have been installed on the Kranco crane in the circumstances under which it was in use at the time of Spangler’s injury and that a reasonably prudent manufacturer would have installed one.

If The expert’s estimate that installing a warning bell on the Kranco crane would cost about $50, an insignificant amount compared with the $35,000 cost of the crane.

|f The testimony of Kranco’s employee that he told two Reynolds employees a warning device was needed on this crane because of the type of load it carried.

If The testimony of Kranco’s president that Kranco omits warning bells not called for in customer specifications even if the company knows that using the crane without a bell is hazardous, unless the specifications violate the National Safety Code or the Occupational Health and Safety Act.

I would reach a similar result if the action were based on breach of warranty because Virginia has abolished the need for privity. Va.Code Ann. § 8.2-318 (1965); Cf. Chestnut v. Ford Motor Co., 445 F.2d 967, 968 (4th Cir. 1971).

      . Under this arrangement Reynolds became a statutory employer of Spangler within the meaning of the Virginia Workmens’ Compensation Act and was therefore immune from any common law action by him. Va.Code Ann. §§ 65.1-30 and 65.1-40 (1968). See Slusher v. Paramount Warrior, Incorporated, 336 F.Supp. 1381 (W.D.Va.1971).

      . Upon this appeal the plaintiff asks that we consider strict tort liability and warranty as amended theories of recovery. In Chestnut v. Ford Motor Company, 445 F.2d 967 (4 Cir. 1971), we stated that the standard of safety imposed on the manufacturer of a product “is essentially the same whether the theory of liability is labeled warranty or negligence or strict tort liability,” and under our view of this case the plaintiff fares no better on these additional alternative theories,

      . Cases upon which Kranco relies do not conflict with this principle. In Greater Richmond Civic Recreation, Inc. v. A. H. Ewing’s Sons, Inc., 200 Va. 593, 106 S.E.2d 595 (1959), the contractor was permitted to assert the defense that it had complied with the owner’s specifications in an action brought by the owner, not by a third party. In Littlehale v. E. I. du Pont de Nemours & Co., 268 F.Supp. 791 (S.D.N.Y.1966), aff’d 380 F.2d 274 (2d Cir. 1967), the plaintiff abandoned his claim of negligent design and manufacture, and the evidence negated any need to warn of the dangers associated with the use of the defendant’s product. In Davis v. Henderlong Lumber Co., 221 F.Supp. 129 (N.D.Ind. 1963), the evidence failed to show that a contractor who followed an architect’s plans and specifications knew, or should have known, of the danger involved.

      . Although Spangler was a statutory employee of Reynolds within the meaning of the Compensation Act, Virginia law permits this action against Kranco. Va. Code Ann. §§ 65.1-41, -42 (1973). See Fauver v. Bell, 192 Va. 518, 65 S.E.2d 575, 580 (1951).