text:
    Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and J. W. Bounds (Pearl Steel Erection Company), Respondents.
    No. 73-1558
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 19, 1973.
    Walter H. Fleischer, Asst. Chief, Appellate Section, Stanton R. Koppel, Civil Div., Dept, of Justice, Washington, D. C., Ronald A. Fonseca, Asst. U. S. Atty., New Orleans, La., for petitioner.
    J. Hal Ross, Brandon, Miss., for Bounds.
    William S. McLaughlin, Exec. See., Occupational Safety & Health Review Commission, Washington, D. C., for Commission.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

Pursuant to 29 U.S.C. § 660(b), the Secretary of Labor invokes this Court’s review of a final order of the Occupational Safety and Health Review Commission which found that the respondent company below had not violated the regulation promulgated in 29 C.F.R. 1926.-105(a). We affirm.

In June 1972, the Department of Labor sent a safety and health compliance officer to inspect the site where respondent Bounds’ company was engaged in construction work on the St. Dominic Hospital addition in Jackson, Mississippi. As a result of the inspection, the respondent company was cited for an alleged violation of 29 C.F.R. 1926.105(a) by the company’s “failure to provide safety nets, safety belts and safety lines, or other protective devices for employees on workplaces more than 25 feet above ground or other surfaces.” The regulation allegedly violated reads as follows:

Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are [sic] impractical.

The inspecting officer based his allegations on the conditions in which a welder and a hoist operator were working. Both employees were working at heights estimated at 40 or 50 feet, and conceded therefore to be above 25 feet. The welder was working on a mobile scaffold near the edge of the structure. There was conflicting testimony as to whether there was anything used to prevent the scaffold from falling off the edge. The hoist operator was working on the roof. Although he did not have a safety belt or line, a rope attached to the hoist was tied around his waist. The gist of the Secretary’s complaint is that both employees “were essentially unprotected from falls of 40-50 feet,

The order of the Commission found as follows:

The respondent was not in violation of 29 CFR 1926.105(a) in that while respondent’s employees were working more than 25 feet above the ground, such work was being performed by utilizing a scaffold and on floors of the building under construction and accordingly, safety nets were not required.

The Commission also said:

The essence of this case seems to center upon a fact overlooked by the complainant. The cited standard clearly contemplates that if scaffolds or temporary floors were practical then a safety net was not necessary. Both employees were working on not temporary floors but on unfinished floors which can be construed as permanent flooring. Furthermore, the welder was working on a scaffold. Therefore, it must be concluded that since one of the employees was utilizing a scaffold and that both employees were working on floors, the cited standard is inappropriate to the factual situation and consequently, the respondent cannot be held in violation of the Occupational Safety and Health Act of 1970.

The Secretary addresses this point to the Commission’s findings: “In referring to scaffolds and temporary floors the regulation obviously contemplates ones which serve the function of preventing falls, . . .”

It is manifest throughout the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678, that the purpose of the Act is to protect the health and safety of workers and to improve physical working conditions. See especially 29 U.S.C. § 651; see also 1970 U.S.tíode Cong, and Adm.News 5177 for the legislative history. The difficulty in the present case arises from the use in regulation 1926.-105(a) of the imprecise term “impractical.” We read the Commission’s interpretation of the regulation as equivalent to finding that if ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts are used, then a safety net is not required by 1926.105. The term “impractical” is simply not precise enough to be synonymous either with absence of use of the other devices or with ineffective use of them. The respondent company below used scaffolds and temporary or permanent floors, yet some of the employees were allegedly exposed to the risk of falling. The Secretary asserts that “It should further be pointed out that the Secretary of Labor promulgated the regulation at issue here, . . . The fault lies in the wording of the regulation. We agree with the Commission that the conduct complained of is not prohibited by or in violation of 29 C.F.R. 1926.105(a).

We decline the invitation of the Commission to resolve at this time the conflict between the Secretary of Labor and the Commission as to their respective rights, powers, duties, and responsibilities, see Brennan v. Occupational Safety and Health Review Commission and Brent Towing Co., Inc., 5 Cir., 1973, 481 F.2d 619, since such a determination is not necessary to our decision herein.

Affirmed.

      . Such inspections are authorized by 29 U.S.C. § 657(a)(1) and (2):
      (a) In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized—
      (1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and
      (2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, ahd materials therein, and to question privately any such employer, owner, operator, agent or employee.


source: Caselaw Access Project

author: LAY, Circuit Judge. WEBSTER, Circuit Judge

license: Public Domain

text:
    Doris J. WILSON, Appellant, v. LINCOLN REDEVELOPMENT CORPORATION, Appellee.
    No. 73-1317.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 19, 1973.
    Decided Nov. 9, 1973.

      James A. Kushner, and James A. Gramling, Jr., Kansas City, Mo, for appellant.
    James Wilson Spencer, Kansas City, Mo., for appellee.
    Before LAY, BRIGHT and WEBSTER, Circuit Judges.
   LAY, Circuit Judge.

This is an action brought under 42 U. S.C. § 1983 by Doris J. Wilson, a tenant residing in the Lincoln Garden Apartments, a low and moderate income housing complex, in Kansas City, Missouri. The complex is owned and operated by the defendant Lincoln Redevelopment Corporation. Plaintiff alleges that the defendant is attempting to terminate her tenancy, for breach of the conditions of her lease, without affording her due process of law. The district court granted defendant’s motion to dismiss on the ground that plaintiff had failed to state a claim entitling her to relief. Mrs. Wilson appealed. We affirm.

Plaintiff entered into a written lease for a one-year tenancy on March 6, 1971. This has been amended on two subsequent occasions. Prior to the termination of such lease, plaintiff alleges that she was served with a notice requiring her to vacate her apartment within 30 days of July 20, 1972. The Building and Grounds Committee reviewed a factual summary of the incident and upheld the decision to evict her. Thereafter, a hearing was held at plaintiff’s request and a hearing board composed of three members of the management group affirmed the Committee’s decision to evict. Plaintiff alleges that her eviction by the defendant, acting under color of state law, was without proper notice and without a hearing before an impartial adjudicatory board and therefore in violation of the Fourteenth Amendment.

The district court found that the defendant was a quasi-governmental corporation and was obligated to afford its tenants due process of law in terminating their tenancies. However, the district court held that due process would be afforded the tenant through the Missouri state court proceedings in an eviction action. Accordingly, the trial court dismissed the case under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure of the plaintiff to state a claim for relief.

Plaintiff urges that under similar circumstances, in Brown v. Housing Authority of Milwaukee, 340 F.Supp. 114 (E.D.Wis.), aff’d, 471 F.2d 63 (7th Cir. 1972) and Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970), the availability of state court eviction proceedings did not obviate the need for administrative due process. However, the district court distinguished these cases since the precise issue involved here is a charge of breach of the lease rather than termination of a month-to-month tenancy or an increase in rent. Thus it reasoned that a plenary trial in the state court satisfies basic requirements of due process where the only issue involves a breach of the lease. The trial court noted that in the circumstances of Escalera and Brown there existed no effective judicial review of the factual basis for the administrative action. This was the same reasoning applied in Johnson v. Tamsberg, 430 F.2d 1125 (4th Cir. 1970). This precise question was left open in Thorpe v. Housing Authority of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). See Thorpe, supra at 284, 89 S.Ct. 518; Johnson v. Tamsberg, supra 430 F.2d at 1126. However, we need not decide the constitutional question here. We affirm the trial court for a different reason. We find that plaintiff’s complaint is deficient in that it fails to factually plead a denial of administrative due process under § 1983.

In determining whether a complaint states a claim for relief, it is of course true that the pleadings should be construed in the light most favorable to the plaintiff and that all doubts should be resolved in favor of the sufficiency of the complaint. See, e. g., Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 87 S. Ct. 1526, 18 L.Ed.2d 704 (1967); Mississippi River Fuel Corp. v. Slayton, 359 F.2d 106 (8th Cir. 1966). However, where the allegations are conclusory in nature, the court has a duty to measure these allegations in light of the factual claims actually made. Cf. 2A Moore’s Federal Practice § 12.08 (2d ed. 1972).

Here, the complaint first alleges insufficient notice. As stated in Escalera, “[t]he purpose of requiring that notice be given to the tenant before the hearing is to insure that the tenant is adequately informed of the nature of the evidence against him so that he can effectively rebut that evidence.” Escalera, supra 425 F.2d at 862.

Escalera, however, involved vague one-sentence statements which alleged that tenants were guilty of “anti-social activities” and “illegal acts * * * having an adverse effect” on others. On the other hand, the timely notice given here sets forth the time, the date and a statement of the factual incident which constituted the grievance. The notice was attached to the plaintiff’s complaint and adequately refutes plaintiff’s conclu-sory allegation of insufficient notice.

Plaintiff’s basic claim, aside from her allegation of deficient notice, relates to the allegation that the hearing was not before an impartial committee. Plaintiff’s charge of partiality stems from paragraphs 12 and 13 of her complaint. Plaintiff alleges a denial of due process in that two members of the hearing panel here had substantial prior involvement in the case and had concluded that the plaintiff should be evicted.

We agree that if plaintiff is entitled to a hearing, it must be a fair one and therefore must be before an impartial body. However, “prior involvement” in itself is not sufficient to bar a person from acting as a “decisionmaker.” Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

Here, what is alleged is that Earl D. Thomas, the Secretary-Treasurer of the corporation, had apprised the Building and Grounds Committee of “the facts” and that Vernon J. Brooks, as one of its members, voted on the basis of a written statement of these facts to evict plaintiff. The facts alleged simply show that these two men, representing management, were given the role of reviewing the incident in various steps of factual completeness. In our judgment these facts fall short of stating a prima facie complaint as to a biased hearing board.

One of the essential reasons behind the requirement of a preliminary administrative hearing vis-a-vis the state court proceeding relates to expediency and overall fairness to the tenant. See Brown v. Housing Authority of Milwaukee, 340 F.Supp. 114, 115-116 (E.D. Wis.), aff’d, 471 F.2d 63 (7th Cir. 1972). Similarly, management is given the timely opportunity to be dissuaded from perhaps costly and futile litigation if it can be immediately apprised of the facts surrounding the charge. But simply because management has been previously apprised of some of the facts and has made tentative judgments without a full hearing cannot by itself justify a charge of prejudice and inability of management to fairly review the facts more adequately developed. The critical determination here in assessing the charge of partiality of the decisionmaker is whether in weighing the evidence he is required to call on his own personal knowledge and impression of what occurred. In such cases, the tenant would be deprived of his right to examine or cross-examine a crucial witness and the decisionmaker would become the arbiter of his own credibility and fairness. Cf. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Tyler v. Swenson, 427 F.2d 412 (8th Cir. 1970).

This is not the claim here.

Here, the essential pleading is that some members of management on the review committee were familiar with the facts, and that one member of the committee had reviewed a written factual summary and previously had voted to evict plaintiff. We do not think this disqualifies these individuals from forming a review panel with the President of the corporation to assess newly developed evidence and make the ultimate management decision to proceed or not.

The principles of Escalera, Brown and Caulder, requiring administrative due process as enunciated in Goldberg v. Kelly, undoubtedly do much to overcome the traditional imbalance in the landlord-tenant relationship in public housing. However, we are confident that the elements of fairness they embody were not designed to impose hypertechnical requirements which totally circumvent the practical day-to-day processing of these grievances. When adequate and timely notice is given, a full administrative hearing is held, the right to have counsel, confrontation of adverse witnesses and the opportunity to call witnesses provided, as was done here, it is an abuse of the ends of Goldberg and its progeny to urge that due process is still violated.

In conclusion, we find that the trial judge’s dismissal of the complaint should be affirmed. We feel it unnecessary to determine whether under the facts and circumstances here presented due process is satisfied solely by the state eviction proceeding or whether a preliminary administrative hearing was essential. We conclude, however, that the complaint is deficient in failing to factually plead a denial of administrative due process.

Judgment affirmed.

WEBSTER, Circuit Judge

(dissenting).

I reluctantly dissent.

While I agree with almost everything the majority has said with respect to the showing required to sustain a civil rights action to enjoin an eviction by a quasi-public housing corporation, I must conclude that the District Court prematurely adjudicated the jurisdictional issue and that the majority opinion has erroneously assessed the merits of the ease upon the pleadings alone.

Civil rights complaints are to be liberally construed, and are not to be dismissed unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of the facts which could be proved in support of his claim. Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed. 2d 91 (1970); Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968); Barnes v. Merritt, 376 F.2d 8 (5th Cir. 1967). Nonetheless, something more than mere legal conclusions is required to sustain jurisdiction. Stanturf v. Sipes, 335 F.2d 224, 229 (8th Cir. 1964), cert. denied, 379 U.S. 977, 85 S.Ct. 676, 13 L.Ed.2d 567 (1965); Rodes v. Municipal Authority of Milford, 409 F.2d 16, 17 (3rd Cir.), cert. denied, 396 U.S. 861, 90 S.Ct. 133, 24 L.Ed.2d 114 (1969).

It seems to me that the complaint alleges with sufficient factual definiteness (1) that the appellee was a quasi-governmental corporation possessed of certain state governmental powers by reason of the Missouri urban redevelopment statute under which it was chartered; (2) that appellee threatened to evict appellant from her leased apartment; (3) that her special situation as tenant of low cost, subsidized housing entitled her to administrative due process before such tenancy could be terminated; (4) that the notice which she received was inadequate; (5) that the hearing which she received was not before an impartial tribunal, but instead was before interested officials of the corporation, at least one of whom had prejudged her case; and (6) that (4) and (5) deprived her of due process under color of state law.

I do not understand that one seeking to vindicate his civil rights must plead all the evidentiary facts any more than that his pleading of mere hyperbole or ultimate legal conclusions will satisfy the jurisdictional demands. I simply say that in this case appellant has set forth her claim with sufficient disclosure of the factual basis upon which she depends for her relief. It remains an open question whether upon a hearing she can demonstrate, under the particular circumstances of her case, that ap-pellee was indeed acting under color of state law, and further that the notice was inadequate, that the hearing lacked requisite impartiality and that, in consequence, appellant was denied the degree of due process to which she was entitled. But I do not see how we can conclude from the bare pleadings, unsupported by any record, that appellant can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957); Lewis v. Chrysler Motors Corp., 456 F.2d 605 (8th Cir. 1972).

I would vacate the order of dismissal and remand this case to the District Court for further proceedings. If appellant’s claims are in fact illusory, the Federal Rules of Civil Procedure provide the means to make such determination upon a sufficient development of the record, even before trial.

      . It is alleged that Lincoln Redevelopment Corporation receives substantial direct and indirect financial benefits from the state and federal governments. The allegations of federal subsidization and federal involvement under the National Housing Act are superfluous in an action under § 1983. The essential conduct must fall within the color of state law, not federal action. See, e. g., Browns v. Mitchell, 409 F.2d 593 (10th Cir. 1969) ; Norton v. McShane, 332 F.2d 855 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965) ; Grossner v. Trustees of Columbia University, 287 F.Supp. 535 (S.D.N.Y.1968).
      At oral argument we indicated that the issue of state action was not before us since the district court had premised its decision on the basis that due process was afforded. However, we do not in any way mean to indicate that the district court was correct in its finding as to state action. Under similar circumstances this court in Weigand v. Afton View Apartments, 473 F.2d 545, 547 (8th Cir. 1973) observed:
      We know of no case that would extend the state action concept to a federally financed but privately owned and operated apartment house merely because a state assesses real estate taxes on this property at a lower rate than that assessed equivalent structures not similarly funded.

      . The district court had previously denied plaintiff’s motion for a temporary restraining order. Although no temporary restraining order has issued, neither has the defendant brought an eviction suit in state court. The defendant has deferred action until the ultimate determination of this proceeding, and in the meantime plaintiff and her family still reside in the apartment.

      . In affirming, the Seventh Circuit found it unnecessary to pass on the procedural due process question decided by the district court since it found the Milwaukee Housing Authority’s procedures were in violation of HUD’s regulations. Brown v. Housing Authority of Milwaukee, 471 F.2d 63, 69 (7th Cir. 1972).

      . This decision is later explained in Caulder v. Durham Housing Authority, 433 F.2d 998, 1002 (4th Cir. 1970), cert. denied, 401 U.S. 1003, 91 S.Ct. 1228, 28 L.Ed.2d 539 (1971), where the court said :
      It is significant that the final notice of termination on which the Housing Authority proceeded before the magistrate constituted an exercise of the unlimited power of termination contained in the lease. It did not condition termination on the fact that any covenant of the lease had been breached, or that the rent had not been paid. The case is thus different from Johnson v. Tamsberg, 430 F.2d 1125 (4th Cir. 1970), where the Housing Authority of Charleston did not seek to obtain summary ejection on the basis of the exercise of an unlimited discretion to terminate the tenancy but rather undertook to prove specific acts constituting a breach of the lease and justifying termination.

      . The Supreme Court in Thorpe observed, however:
      Moreover, even if the Authority does not provide such a hearing, we have no reason to believe that once petitioner is told the reasons for her eviction she cannot effectively challenge their legal sufficiency in whatever eviction proceedings may be brought in the North Carolina courts.

        Thorpe, supra 393 U.S. at 284, 89 S.Ct. at 527.

      . The notice sent by defendant to Mrs. Wilson, dated July 20, 1972, reads :
      Dear Tenant:
      I am calling your attention to a disturbance that was caused by you or persons in your family Saturday, July 15, 1972. It was necessary to call the Police, and a shot was fired that could have caused serious consequences if anyone had been in the livingroom of 1672 East 22nd Street.
      The management and owners of Lincoln Garden consider this disturbance serious, and believe that it endangers the peace and tranquility of other tenants, their friends and our personnel.
      In view of the seriousness of the disturbance it is necessary for us to invoke Article Number 22 of the Lease and request that you vacate the apartment that you reside within 30 days from date.

      . It is significant that the complaint alleges that there was in fact an administrative hearing. Counsel conceded in oral argument that they were present at this hearing and given an opportunity to present witnesses and cross-examine adverse witnesses. Due process at an administrative hearing between tenant and landlord need not rise to the level of a formal trial-like adversary proceeding. It is, of course, to the tenant’s benefit that it does not. The essential requirement is that the tenant be allowed to informally present his side of the facts, mitigating or otherwise, and confront the adverse witnesses. It is conceded that the tenant was afforded this opportunity. Although complaint is made of the lack of sufficient findings, the parties likewise concede that the reviewing committee made findings of fact and forwarded the findings to counsel. Cf. Caulder v. Durham Housing Authority, 433 F.2d 998, 1004 (4th Cir. 1970), cert. denied, 401 U.S. 1003, 91 S.Ct. 1228, 28 L.Ed.2d 539 (1971).

      . In all landlord-tenant cases, the decision to proceed with eviction must ultimately rest within the exercise of management judgment. The essential feature of an administrative procedure is that the tenant be given a full opportunity to present his or her side of the grievance and to confront any adverse witnesses. Regardless of the evidence adduced at the hearing, management may still determine to proceed to state court to establish a breach of the lease. There is nothing binding, at least in the context of this case, upon management in the administrative process.

      . “The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
      (Emphasis added) Eed.R.Civ.P. 56.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    BOSTON EDUCATIONAL RESEARCH COMPANY, INC., Plaintiff, Appellant, v. AMERICAN MACHINE & FOUNDRY COMPANY, Defendant, Appellee.
    No. 73-1112.
    United States Court of Appeals, First Circuit.
    Argued Oct. 1, 1973.
    Decided Dec. 12, 1973.

      Stephen S. Young, Boston, Mass., with whom Sherburne, Powers & Needham, Boston, Mass., was on brief, for appellant.
    George W. McLaughlin, Boston, Mass., for appellee.
    Before McENTEE, MOORE  and CAMPBELL, Circuit Judges.

       Of the Second Circuit sitting by designation.

   LEVIN H. CAMPBELL, Circuit Judge.

Appellant Boston Educational Research Company, Inc. (Boston) appeals from a judgment of the district court denying relief upon its claims that American Machine & Foundry Company (American) wrongfully disposed of its goods. The opinion of the district court, which we affirm, appears at 355 F.Supp. 1272 (D.Mass.1973).

The goods in question, primarily cartons of teaching devices known as “Dial-a-Word Calculator Wheels”, were left on premises in Connecticut by Boston’s now-defunct corporate subsidiary, hereinafter styled “Sales”. American, which owned the premises, had let them during 1970 and until May, 1971, to a firm which we shall refer to as “Future Foods”. Future Foods, with American’s consent, had in turn sublet space to Sales and other subtenants.

Sales received the cartons from its parent, Boston, in June of 1970, and stored them on the mezzanine. They numbered between 100 and 150, occupying a floor space of 20 by 10 feet, rising six feet in height, and weighing close to nine tons. Boston’s name was sten-cilled on some. Fear that they might damage the floor led Future Food’s president to complain to Sales’ president about their presence, but nothing was done about them and at the end of September, 1970, Sales quit the premises and went out of business shortly thereafter. When Sales vacated, it left behind a considerable quantity of material: the cartons, some of which became broken so that their contents lay on the floor, a sound-proof room, tape recorders, and other property. Sales’ president, who was also a director of its parent company, Boston, returned to the premises on occasion but neither tidied up nor removed the cartons. Sales terminated its sub-lease and settled its rent with Future Foods through October 1, 1971, apparently by giving the latter some merchandise. It discussed either selling the Dial-a-Words or letting Future Foods sell them, but efforts in that direction were fruitless.

On January 30, 1971, the president of Future Foods wrote to Boston’s president complaining of “the continuing use of our building by you for storage purposes.” He wrote,

“There is no way to catalog your occupied space except to say that it is the residue left when your subsidiary Sales . . . ceased operations here on October 1,1970.
“Our files contain correspondence about this storage condition without any response or attempt to correct this condition on your part.
“. . . [W]e cannot permit this situation to continue.
“Accordingly, we are enclosing our invoice . . . covering a token charge [$392] for storage for the period October 1, T970, thru January 31, 1971.
* * -X- * * *
“Please be advised that should we not receive payment of this amount by February 12, 1971, along with advice about your plans for your material, we will dispose of it all in the quickest possible fashion.”

Boston did not reply by February 12, but on February 17 its president wrote to Future Foods, enclosing no money but relaying the assurance that Boston had “plans” for the material and requesting Future Foods to “continue [its] cooperation” for another thirty days “at which time our plans call for the [sic] removing these materials and paying your storage charges.”

There was testimony that Future Foods never received the letter, but in any event it never responded and there was no further correspondence. During the winter and spring Boston did not remove the materials nor did it pay the storage charge.

Shortly before Future Foods had written to Boston in January, American notified Future Foods to quit the premises. Future made plans to do so, and notified its subtenants, but not the defunct Sales, to quit. All did so, and the building was returned to American during May of 1971. American, for its part, had sold the building to another firm, and had undertaken to deliver the premises on June 2, 1971, broom-clean and free of all tenants. An inspection of the premises during the latter part of May revealed the property Sales had left behind. Material of obvious value, such as the sound-proof room and tape recorders, was removed from the premises and stored. The cartons on the mezzanine were discovered in somewhat dilapidated condition; some had been broken and the contents scattered about. Employees opened a few of the cartons and decided that the contents were valueless; American made no attempt to contact Sales or Boston. Pursuant to orders of the assistant manager of American’s real estate department, the cartons and contents were then thrown away. Boston regained its interest in the Dial-a-Words sometime during July of 1971 and dispatched an employee to discover what had happened to them; he discovered that they were gone and this suit followed.

Boston puts forward three alternative theories of recovery under Connecticut law.

The first is that American was negligent as a matter of law because it did not advertise the goods and otherwise comply with 50 Conn. Gen.Stat. § 50-2. Under Connecticut law the breach of a statute may support a finding of negligence. Compare Buravski v. DiMeola, 141 Conn. 726, 109 A.2d 867 (1954), with Gonchar v. Kelson, 114 Conn. 262, 158 A. 545 (1932). See Restatement of Torts (Second) § 286 (1965).

We need not address American’s argument that Boston is outside the range of interests protected by the statute. Even if American is deemed “negligent” for not following the statutory procedure, Boston cannot recover unless American’s negligence was the proximate cause of Boston’s loss. Boston had no Connecticut office. How an advertisement in a Greenwich, Connecticut, newspaper would have added anything to the actual notice received from Future Foods has not been shown. The district court held that the failure to advertise was a mere “condition” and not the proximate cause of the loss, because “[i]t is difficult to imagine how [Boston] would have benefited had defendant complied with the statute and advertised.” 355 F.Supp. at 1276. Having taken no steps to remove the goods or pay storage, and having reneged on its own February 17 assurances of removal and payment, Boston is not in a position to assert harm because of noncompliance with the statute.

Boston’s second contention is that American’s employees, by disposing of the cartons without attempting to communicate with Boston or Sales, failed to exhibit the care of reasonably prudent men. Boston points to the district court’s statement that “plaintiff’s negligence theory fails because of its own lack of due care . . .” Implicit in that statement, says Boston, is a finding that American was itself negligent. We disagree. While the court did not specifically find that American’s employees acted in the exercise of due care, it nowhere found they did not. It was plainly implied in the court’s opinion that, under circumstances then appearing, including the dilapidated condition of the boxes and the apparent worthlessness of their contents, American behaved not unreasonably.

American, moreover, is not to be deprived of the benefit of such defense to a claim of negligence or conversion as might have been raised by its predecessor in possession, Future Foods, had it been the latter that destroyed the goods.

Future Foods acted patiently and reasonably in its efforts to induce first Sales, and then Boston, to remove the goods. It notified Boston of its intention to dispose of them. The court found that Boston’s inaction “warrants the conclusion that plaintiff had lost interest in this stack of cartons.” Had Future Foods itself before surrendering the leasehold disposed of the cartons, it would, on the court’s findings, have been acting with due care. When American took possession of the premises and the unwanted goods, it was not constrained to start afresh; it took the goods subject to the same privilege to dispose of them.

The most forceful of Boston’s claims is that American converted its goods.

“Conversion is usually defined to be an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner’s right .... The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right to dominion, and to his harm.” Gilbert v. Walker, 64 Conn. 390, 394-395, 30 A. 132, 134 (1894).

Underprivileged destruction of goods is a classic case of conversion, W. Prosser, Torts 91 (4th ed. 1971).

Privileges to convert have been rare in American law, since the tort is an outgrowth of trover, in which the only allegations were that plaintiff had lost his goods, that defendant had found •them, and that they had not been returned. The mere fact of loss was enough to recover. See J. Fleming, The Law of Torts 52-56, 78-79 (3d ed. 1965). See also Restatement of Torts (Second) §§ 229, 235 (1965). Liability will lie for conversion even though the property was carelessly lost by its real owner, even though the defendant mistakenly appropriated the property, and even though the defendant received no benefit from his deed. Stoddard v. Couch, 23 Conn. 238 (1854). So much is clear. However, although there are no Connecticut cases on point, other courts have held that among the available defenses are an apparent abandonment of the goods combined with their apparent lack of value, at least when the alleged converter is acting in good faith. The reason for such an exception was simply put by the Supreme Judicial Court of Massachusetts in Row v. Home Savings Bank, 306 Mass. 522, 526, 29 N.E.2d 552, 554 (1940):

“[The property’s] apparent worthlessness excused the defendant from searching for the owner. Moving the property into the street would have made the defendant liable for a public nuisance. . . .No storage warehouse could be expected to receive worthless property depending for payment upon a lien. The defendant could not be expected to contract for storage that probably would continue indefinitely.”

In Row plaintiff had space in a building owned by the Campfire Girls who had moved out of the building. Plaintiff knew that the building was to be vacated, and she had removed most of her own belongings except for two trunks and a suitcase. Although items of obvious value were stored in the trunks, they left an overall impression that might also be conveyed by trunks full of old and worthless papers and baubles. Two months went by after plaintiff received notice that the Campfire Girls were leaving the building and that everything was “going out”; she did nothing. The mortgagee foreclosed, took possession, and threw away the “debris”. The situation is similar to ours: plaintiff had notice that the property was in danger, but took no action; defendant threw away what might reasonably appear to be valueless without making any attempt to contact the owner, even though such an attempt probably would have been successful. And American went even further than did the mortgagee in Row, since American detected and stored some items that did appear to have value. Cf. Vissenberg v. Bresnahen, 65 Wyo. 367, 202 P.2d 663 (1949). As the district court found, a possessor faced with material left behind cannot act unreasonably, but is “entitled to act on appearances”. 355 F.Supp. at 1278. It did so here, and the court correctly found that it had not converted the Dial-a-Words.

Affirmed.

      . The president of Boston testified that he tried several times during March or April to call the president of Future Foods but could not reach him.

      . The action is brought under the diversity jurisdiction and the parties concede that the law of Connecticut is controlling.

      . “All goods not perishable, left with any person or upon any public wharf or highway . . . and whose owner is unknown or neglects to take them away for six months from the time when they were left, shall be advertised one month in a newspaper published in the county where such goods were left. If the owner thereof does not take them away within such month, they may be sold and the proceeds disposed of in the manner provided in section 50-1.” [Section 50-1 provides that the proceeds shall be paid over to the town treasurer.]

      . American argues that the statute was intended to protect finders and bailees rather than losers and bailors. There is no legislative history, but the object of this and similar state statutes may have been to relieve finders from near-absolute liability for conversion by providing for the legal disposal of unwanted and unclaimed property. See Restatement of Torts (Second) § 226A, Comment b. But the scope of the statute’s protection may also extend to the losers and bailors who were to receive the notice, and so disregard of its provisions is not necessarily without adverse consequences for a finder.


author: McCREE, Circuit Judge.

text:
    Arthur MITCHELL, Petitioner-Appellant, v. Perry JOHNSON, Warden, Respondent-Appellee.
    No. 72-1481.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 8, 1973.
    Decided Dec. 6, 1973.
    David R. Hood, Detroit, Mich. (Court appointed), for petitioner-appellant.
    Stewart H. Freeman, Asst. Sol. Gen., for respondent-appellee; Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Mich., on brief.
    Before EDWARDS and McCREE, Circuit Judges, and YOUNG, District Judge.

       The Honorable Don J. Young, United States District Judge for the Northern District of Ohio, sitting by designation.

   McCREE, Circuit Judge.

This appeal requires us to decide whether a state may, agreeably to the Constitution, refuse to appoint counsel to assist an indigent defendant in the preparation of an application for discretionary direct appeal to the state supreme court when nonindigent defendants customarily employ counsel for this purpose. We hold that it may not.

Appellant was convicted of unarmed robbery in a Michigan state court and was sentenced to a term of eight to fifteen years in prison. His conviction was affirmed on an appeal as of right to the Michigan Court of Appeals. Because appellant was indigent, he had the assistance of counsel at trial and in the Court of Appeals. However, his request for counsel to prepare an application for leave to appeal to the Michigan Supreme Court was not granted. Accordingly, the Michigan Supreme Court had only his pro se application to consider and declined to exercise discretionary review. Thereafter, he petitioned for a writ of habeas corpus in the United States District Court, and claimed, as one ground for relief, that the denial of an attorney to aid in his application for discretionary review violated his Fourteenth Amendment rights to equal protection and to due process of law. Appellant appeals from the district court’s order denying the petition.

This is a case of first impression in our circuit and we are faced with conflicting guidance from our brethren in other circuits that have considered the issue presented here. Compare Moffitt v. Ross, 483 F.2d 650 (4th Cir. 1973), with United States ex rel. Pennington v. Pate, 409 F.2d 757 (7th Cir. 1969).

In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955), the United States Supreme Court considered a state requirement that a defendant seeking review provide the appellate court with a bill of exceptions or a report of trial proceedings certified by the trial judge. Because under this procedure access to a transcript of the trial proceedings was for practical purposes a prerequisite to appellate review, the Court held that the due process and equal protection clauses of the Fourteenth Amendment required that indigent criminal defendants be provided a free transcript. The Court declared:

. . . [T]o deny adequate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside. . There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who> have money enough to buy transcripts. 351 U.S. at 19, 76 S.Ct. at 590. (Emphasis added).

Although in subsequent cases the Griffin principle has not always been stated in such sweeping language, see Eskridge v. Washington, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958), Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), nevertheless, the principle has been applied in criminal proceedings beyond the first appellate review. Thus, in Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L. Ed.2d 1209 (1959), the Court held that a state could not constitutionally require an indigent to pay a filing fee as a condition to filing a motion for leave to appeal to the supreme court of the state:

[Ojnce the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty. . This principle is no less applicable where the State has afforded an indigent defendant access to the first phase of its appellate procedure but has effectively foreclosed access to the second phase of that procedure solely because of his indigency. 360 U.S. at 257, 79 S.Ct. at 1168.

See also Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966); Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L. Ed.2d 601 (1969).

Although Mitchell was not “effectively foreclosed” from access to the second stage of the Michigan appellate procedure in the same manner as was Burns, we think it beyond doubt that an indigent preparing his own application for discretionary review is almost as seriously disadvantaged in comparison to a litigant who can afford the special expertise of an attorney. But whatever the force of Griffin and Burns alone, these cases now must be read in conjunction with Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). In Douglas, defendants had appealed as a matter of right to a California intermediate court of appeals and had requested the assistance of counsel because of indigency. Counsel was refused in accordance with a state rule of criminal procedure that required the state appellate courts, upon request for counsel by an indigent, to make an independent examination of the record and determine whether appointed counsel would be of advantage to the defendant or to the appellate court and, subsequently, the California Supreme Court denied discretionary review. The United States Supreme Court vacated the judgment and remanded the ease, holding that appointed counsel was constitutionally required for the “one and only appeal an indigent has as of right.” 372 U.S. at 357, 83 S.Ct. at 816. The Court expressly left open the question presented here, whether counsel must be provided for an indigent seeking discretionary review in a state supreme court. 372 U.S. at 356, 83 S.Ct. 814.

In addressing this question, we focus our attention on the same factors considered by the Court in Douglas, which reasoned:

. . . The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between “possibly good and obviously bad cases,” but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal. 372 U.S. at 357-358, 83 S.Ct. at 817.

The disadvantage to the indigent in this case is no less substantial. The assistance of a skilled advocate who understands the intricate and subtle factors that might persuade a court to exercise its discretionary review and who possesses the power to communicate them succinctly and cogently appears to be as important here as is the assistance of counsel at trial or on a first appeal. Defendants without education in the law or experience in its practice cannot be expected, unaided, to state accurately and clearly whatever claims for justice their cases might possess. Although empirical data is lacking, we think it not unreasonable to postulate that discretionary review will be denied indigents in a significant number of cases where wealthier appellants, with the assistance of counsel, would have obtained review and possibly a reversal of the conviction on the merits. And, of course, when the prosecution seeks discretionary review, as is permitted in appropriate circumstances, the state’s application is always the product of legal counsel. Where liberty is at stake, we consider the substantial disadvantage experienced by the unassisted indigent to be an invidious discrimination and a denial of fundamental fairness required by the equal protection and the due process clauses of the Fourteenth Amendment. In reaching this conclusion, we do no more than adhere to principles firmly established in our law. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955). See also Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967).

We do not find persuasive the government’s argument that because appellant has already had one appeal with the aid of counsel the Constitution requires no more. Burns v. Ohio, supra, establishes that due process and equal protection guarantees may be violated when an indigent criminal defendant is disadvantaged at any stage of the appellate process. The rights of an unjustly convicted defendant should not be practically foreclosed merely because error has survived prior appellate review, if other defendants, similarly situated except for greater affluence, are afforded a better chance for another appeal. We conclude that the considerations of equality and fairness found controlling by the Supreme Court in Douglas apply with equal force in this case.

And we do not believe that practical considerations and institutional limitations compel a different result. In Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L.Ed.2d 530 (1972), the Supreme Court held that “no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” 407 U.S. at 37, 92 S.Ct. at 2012. In his concurring opinion, Chief Justice Burger stated: “The holding of the Court today may well add large burdens on a profession already overtaxed, but the dynamics of the profession have a way of rising to the burdens placed on it.” 407 U.S. at 44, 92 S.Ct. at 2015. The burden imposed upon states by the obligation to provide indigent appellants with counsel on application to their supreme courts for discretionary review does not appear as substantial as the burden imposed by Argersinger. Indeed, the Attorney General of Michigan advises us that the State Appellate Defender is currently seeking leave to appeal to the Supreme Court of Michigan in many cases, and that if this trend continues, “the issue at bar may in the foreseeable future no longer be a problem.” Brief for the Appellee at 7.

In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), where it held that an indigent defendant must be afforded counsel in a post-trial proceeding for revocation of probation and the imposition of deferred sentencing, the Supreme Court observed: “We assume that counsel appointed for the purpose of the trial or guilty plea would not be unduly burdened by being requested to follow through at the deferred sentencing stage of the proceeding.” 389 U.S. at 137, 88 S.Ct. at 258. Similarly, counsel appointed on appeal as of right should not be unduly burdened if required to “follow through” in the preparation of an application for discretionary appeal to the state supreme court. A similar requirement is already almost universally imposed by the federal courts of appeals in plans adopted under the Criminal Justice Act of 1964, 18 U. S.C. § 3006A. They require appointed attorneys to prepare and file petitions for certiorari in the United States Supreme Court, upon defendant’s request after an adverse decision in the court of appeals.

The temple of criminal justice does not have three stories for the affluent and only two for the indigent. We conclude that the constitutional principles enunciated in Griffin, Burns and Douglas require appointment of counsel to assist indigent appellants in applications to the Michigan Supreme Court for discretionary review. Our decision is supported by the spirit, if not by the express command, of the Sixth Amendment right to assistance of counsel, applicable to the states through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963).

We decide only the question presented by this appeal and do not reach the question whether counsel must be provided an indigent in the state supreme court if leave to appeal is granted or whether appointed counsel must be furnished to assist in petitioning the United States Supreme Court for a writ of certiorari. Cf. note 1, supra.

The judgment of the district court is vacated and the case is remanded for proceedings not inconsistent with this opinion.

      . For example, the Sixth Circuit’s plan to implement the Criminal Justice Act of 1964 provides in relevant part:
      If, after an adverse decision by the Court of Appeals, a review by the Supreme Court of the United States is to be sought, the appointed attorney shall, if requested to do so after discussion with the person for whom the attorney is appointed, prepare and file a petition for certio-rari and other necessary and appropriate documents in connection therewith.
      The plan of the First Circuit states:
      Except when relieved by the court, counsel’s appointment shall not terminate until, if defendant loses his appeal, he informs defendant of that fact and of his right to petition for certiorari and the time period, and has prepared and filed the petition if defendant requests it. If the defendant does . not wish to apply for certiorari or does not respond to the notification, counsel shall so inform the court by letter.
      The Fifth Circuit in its plan requires :
      After any adverse decision on the appeal appointed counsel shall notify the party represented in writing of his right to seek review of such decision by the filing of a petition for writ of certiorari with the Supreme Court of the United States. If after consultation (by correspondence, or otherwise) with the party represented it appears advisable to seek such review, the appointed attorney shall, if requested to do so in writing, prepare and file such petition for writ of certiorari, and shall thereafter continue to represent the party unless or until relieved by the Supreme Court.
      Our research indicates that similar duties, with minor variations, are imposed on appointed counsel under the plans adopted by every numbered court of appeals. The District of Columbia Circuit, by rule of court, provides that such assistance be given defendants if in the appointed attorney’s judgment, the case warrants a petition for cer-tiorari.

      . The Sixth Amendment to the Constitution of the United States provides:

        In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

      This right has been held applicable to the states not only at trial, Gideon, supra, Ar-gersinger, supra, but at other critical stages of the criminal proceedings. E. g., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (at post-indictment lineup before trial) ; Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). (at post-trial proceeding for revocation of probation coupled with the imposition of deferred sentencing) ; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (at preliminary hearing). Cf. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (Fifth Amendment privilege during pretrial custodial interrogation). But see Kirby v. State of Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) (pretrial lineup prior to indictment or other formal charges was not a part of the “criminal prosecution”).
      Because we dispose of the case on grounds of equality and fairness under Douglas and Griffin, we do not find it necessary to decide today whether this appellate stage is a critical part of the “criminal prosecution” within the meaning of the Sixth Amendment.


author:
FIELD, Circuit Judge:
      WIDENER, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Roubini OMIRLY, Appellant.
    No. 73-1364.
    United States Court of Appeals, Fourth Circuit.
    Argued Aug. 13, 1973.
    Decided Dec 4, 1973.
    Widener, Circuit Judge, concurred in result and filed opinion.

      David A. Nash, Charlotte, N. C. (C. D. Hogue, Jr., Hogue, Hill & Jones, Wilmington, N. C., on brief), for appellant.
    Joseph W. Dean, Asst. U. S. Atty. (Thomas P. McNamara, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and FIELD and WIDENER, Circuit-Judges.
   FIELD, Circuit Judge:

This appeal involves the criminal prosecution of a middle aged woman who at a singularly inappropriate moment joked about the presence of a bomb. On December 31, 1972, Mrs. Roubini Omirly, a naturalized American citizen of Greek nativity, and a companion had purchased tickets on a Piedmont Airlines flight from Wilmington, North Carolina, to New York City. After checking in at the ticket counter and while in the process of completing recently inaugurated screening procedures under which all carry-on luggage was searched, Mrs. Omirly allegedly remarked, “You won’t find my bomb.” The security officer testified that upon hearing this he twice asked Mrs. Omirly to repeat herself and each time she responded that she had a bomb. Mrs. Om-irly testified that her original remark was, “He (another security guard) already got my bomb.” In any event, Mrs. Omirly and her companion were asked to stand aside and later accompanied the assistant airport manager to his office where a consent search revealed no bomb or other weapon. The pair was released once the authorities were convinced that Mrs. Omirly had been joking, but the pilot refused to allow them to board the plane and the price of their tickets wás refunded.

On February 5, 1973, a criminal information was filed against Mrs. Omirly alleging a violation of Title 49 U.S.C. § 1472(m)(l), which provided as follows:

“Whoever imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by subsection (i), (j), (k), or (Z) of this section, shall be fined not more than $1,000 or imprisoned not more than one year, or both.”

Section (Z) to which section (m)(l) refers provides a similar penalty for anyone other than certain law enforcement personnel and other authorized persons who, “while aboard an aircraft being operated by an air carrier in air transportation, has on or about his person a concealed deadly or dangerous weapon, or whoever attempts to board such an aircraft while having on or about his person a concealed deadly or dangerous weapon.”

The district court, while noting the conflict in testimony, held that section 1472(m) (1) was violated since Mrs. Om-irly’s own version of the statement implied that she had entered the departing lounge with a bomb which, if true, would have constituted an attempt to board an aircraft while having on or about her person a concealed deadly or dangerous weapon in violation of section 1472 (Z).

Mrs. Omirly attacks her conviction on several grounds: (1) that the security officer violated her rights under Miranda v. Arizona, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 (1966); (2) that there was insufficient evidence to support her conviction; and (3) that a bomb is not a “deadly or dangerous weapon” for the purposes of Title 49 U. S.C. §§ 1472(Z) and (m)(l). The first two contentions are wholly frivolous. At the time the security officer asked Mrs. Omirly to repeat her remark it is clear that Mrs. Omirly was not in custody and the officer was merely attempting to ascertain what she had said. This plainly was not an interrogation in an inherently coercive environment found to be objectionable in Miranda. That Mrs. Omirly’s remark did not specifically mention her readiness to board the airplane does not render her conviction invalid for insufficient evidence. Mrs. Omirly’s presence in the departing lounge and her submission to the procedures required to board the plane provide the context in which her remark is to be judged. In that context, the evidence was sufficient to support the court’s verdict.

Mrs. Omirly’s contention that a bomb is not a “deadly or dangerous weapon” for purposes of Title 49 U.S.C. §§ 1472(Z) and (m)(l) involves the interrelation of that statute with Title 18 U.S.C. § 35(a) and requires an examination of the legislative history of the two acts. Simply stated, Mrs. Omirly’s theory is that since Title 18 U.S.C. § 35(a) deals specifically with bombs, the later enactment of Title 49 U.S.C. §§§ 1472(Z) and (m) (1) must have been directed at other problems. That “concealed deadly or dangerous weapons” was intended to encompass a broad spectrum of weapons is apparent from the House Report accompanying this legislation.

“Consideration was given to attempting to define the term ‘deadly or dangerous weapon.’ However, this is not practicable. These terms have been used without definition in other provisions of title 18, United States Code, and in many State criminal laws. The courts will determine in each case, as it arises, whether the weapon in question was deadly or dangerous.” 2 U. S.Code Cong. & Ad.News p. 2570 (87th Cong., 1st Sess., 1961).

Following the legislative design the courts have held unloaded guns and knives to be “deadly or dangerous weapons.” United States v. Ware, 315 F.Supp. 1333 (W.D.Okla.1970); United States v. Margraf, 347 F.Supp. 230 (E.D.Pa.1972). While it is obvious that “deadly or dangerous weapon” was intended to cover more than the “destructive substances” embraced by Title 18 U.S.C. § 35(a), there is nothing in the definition of those terms which suggests that “destructive substances” were to be excluded from the class of weapons described as “deadly or dangerous.” The mere fact that Title 49 U.S.C. §§ 1472(1) and (m)(l) were enacted subsequent to the original enactment of title 18 U.S.C. § 35 does not support a theory that in the substantive context the two statutes are mutually exclusive.

However, this does not end our analysis of the interrelation between Title 49 U.S.C. § 1472(m)(l) and Title 18 U.S.C. § 35(a). The history of Congressional acts punishing false threats of bombs and other weapons aboard common carriers begins with the 1956 enactment of Title 18 U.S.C. § 35, commonly referred to as the “Bomb Hoax Act,” which made it a misdemeanor to willfully and with knowledge of its falsity impart false information of a destructive device in, upon or in proximity to an aircraft. Several courts construed “willfully” to require an element of maliciousness with the result that pranksters frequently were acquitted. In 1961 the Attorney General, noting this development, proposed and the Congress enacted a bifurcated form of Title 18 U.S.C. § 35. The new act provided in subsection (a) that anyone imparting information known to be false regarding the presence of a destructive device in, upon or in proximity to an aircraft would be guilty of a misdemeanor punishable by not more than $1000 or not more than one year in prison, or both. Additionally, the new subsection (b) provided that whoever “willfully and. maliciously, or with reckless disregard for the safety of human life,” imparts similar false information would be guilty of a felony punishable by not more than $5000, or not more than five years in prison, or both. The sharp contrast in penalties, it was hoped, would make clear that pranksters as well as serious offenders were to be punished.

Also in 1961, Congress enacted Title 49 U.S.C. §§ 1472 (i)-(n), the “anti-hijacking statute,” which, inter alia, made it a crime to impart false information that one had or attempted to have on or about his person a concealed deadly or dangerous weapon while aboard or attempting to board an aircraft being operated by an air carrier in air transportation. Conscious of the problems encountered under the original language of Title 18 U.S.C. § 35, the Congress employed the same dual standard of intent to differentiate between misdemeanor and felony offenses in Title 49 U.S.C. §§ (m)(l) and (m)(2) that had been used in the recently amended version of Title 18 U.S.C. §§ 35(a) and (b). 2 U. S.Code Cong. & Ad.News p. 2576 (87th Cong., 1st Sess., 1961).

In 1965 Congress amended Title 18 U.S.C. § 35(a) by removing its misdemeanor classification and substituting in its place a civil proceeding with a maximum fine of $1000. This amendment is susceptible of conflicting interpretations: (1) that it vested in the prosecutor the discretion of prosecuting non-felonious bomb hoaxes under the misdemeanor provisions of Title 49 U.S.C. § 1472(m)(l) or under the civil provisions of Title 18 U.S.C. § 35(a); or (2) that it amended by implication Title 49 U.S.C. § 1472(m)(l) by removing from that section’s criminal provisions behavior which falls within the civil provisions of Title 18 U.S.C. § 35(a).

In United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939), the Supreme Court gave this classic statement of the rule regarding amendment by implication:

“It is a cardinal principle of construction that repeals by implication are not favored. When there are two acts upon the same subject, the rule is to give effect to both if possible. * * * (citations omitted) The intention of the legislature to repeal ‘must be clear and manifest.’ * * * (citation omitted) It is not sufficient * * * (citation omitted) ‘to establish that subsequent laws cover some or even all of the cases provided for by [the prior act]; for they may be merely affirmative, or cumulative, or auxiliary.’ There must be ‘a positive repugnancy between the provisions of ■ the new law, and those of the old; and even then the old law is repealed by implication only, pro tanto, to the extent of the repugnancy.’ ”

Having established that at least facially Title 49 U.S.C. § 1472(m)(l) and Title 18 U.S.C. § 35(a) both cover bomb hoaxes, it remains to be determined whether the different penalties for the same act are “positively repugnant.”

An examination of the legislative history of the 1965 amendment of Title 18 U.S.C. § 35(a) reveals that the purpose of the act was to reduce the penalty for non-felonious bomb hoaxes. The Senate Report relates that the Justice Department was still having “difficulty in obtaining misdemeanor convictions against persons of good reputation and standing in their communities whose offense consists more of bad judgment than of intentional antisocial behavior, because juries are reluctant to stigmatize such persons as criminals.” 1 U.S.Code Cong. & Ad.News p. 1834 (89th Cong., 1st Sess. 1965). Examples of behavior which the Justice Department had been unable to prosecute successfully included the following :

“1. A college graduate employed as a stockbroker with a large firm, who had a few drinks prior to making the statement, allegedly said to the stewardess en route: T have my bomb here.’ He was found not guilty by the court. (Calif., N.D., Sept. 21, 1963).
2. A medical technician with a Ph. D., when asked by a ticket agent concerning the contents of his briefcase, replied that he was carrying an atomic bomb in it. Authority to dismiss the information was granted to the U. S. attorney by the Department of Justice.
3. A graduate of a large east coast college and the executive vice president of a corporation, when requested by the stewardess to remove a carton from the overhead rack of the plane prior to takeoff replied, ‘Certainly, it’s just a little old bomb.’ The grand jury returned a no true bill.” Id. at p. 1835.

The Justice Department expressed its belief, in which the Congress concurred, that “a civil penalty will be equally appropriate and more effective, that jokes-ters will be more likely to be punished, and that their punishment will serve to deter others.” Id.

While we are mindful of the rule that amendment by implication is not favored, we think it is clear that such an amendment occurred in this case. The acquiesence by the Justice Department and the Congress in what they found to be the prevailing social view of relatively innocent bomb hoaxes contradicts any notion that the various district attorneys were to be given the discretion to make non-felonious bomb hoaxes criminal matters. Unquestionably, Title .49 U.S.C. § 1472(m) (1) and Title 18 U.S. C. § 35(a) are repugnant in their provisions for criminal procedures and possible incarceration on the one hand as against a civil proceeding with a maximum penalty of $1000 on the other. To reach some reasonable degree of accommodation between the two statutes and to effectuate what we perceive to have been the plain legislative intent, we conclude that the 1965 amendment of Title 18 U.S.C. § 35(a) removed non-malicious bomb hoaxes from the scope of Title 49 U.S.C. § 1472(m)(l) and requires that such offenses be handled exclusively under the civil procedure delineated in Title 18 U.S.C. § 35(a). We in no way intimate that Title 49 U.S.C. § 1472(m)(l) has lost its vitality with respect to any other activity falling within its scope.

Mrs. Omirly’s conviction is reversed and the case remanded with the instruction that the district court dismiss the criminal proceeding against her.

Reversed and remanded.

WIDENER, Circuit Judge

(concurring specially):

I concur in the result.

We have a broad statute, 49 U.S.C. § 1472, which makes criminal with misdemeanor punishment the nonmalicious giving of false information in certain instances concerning a “deadly or dangerous weapon;” and a narrow statute, 18 U.S.C. § 35 (the amendment with which we are concerned being the last enacted), which provides a civil penalty in the same certain instances for giving the same information concerning “destructive substances.”

We have properly held that a bomb, admittedly a “destructive substance” under 18 U.S.C. § 35, is also a “deadly or dangerous weapon.” But bombs are not the only deadly or dangerous weapons, so the broad statute should include the narrow as the general includes the specific.

While noting that either under the opinion of the court or my concurrence, Mrs. Omirly may yet be proceeded against civilly, I would arrive at the majority result by applying the principle stated in Townsend v. Little, 109 U.S. 504, 3 S.Ct. 357, 27 L.Ed. 1012 (1883):

“According to the well-settled rule, general and specific provisions, in apparent contradiction, whether in the same or different statutes, and without regard to priority of enactment, may subsist together, the specific qualifying and supplying exceptions to the general. . . .” 109 U.S. 504, 512, 3 S.Ct. 357, 362, 27 L.Ed. 1012.

Since “[sjpecific terms prevail over the general in the same or another statute which otherwise might be controlling,” Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 323, 76 L.Ed. 704 (1932), and since the two statutes “may subsist together,” Townsend, supra at 512 of 109 U.S., 3 S.Ct. 357, I would hold that the civil penalty provision of 18 U.S.C. § 35 applies to Mrs. Omirly’s act, with no inference of repeal by implication.

      . 18 U.S.C. § 31 defines “destructive subStance” as “any explosive substance, flammable material, infernal machine, or other chemical, mechanical, or radio-active device or matter of a combustible, contaminative, corrosive, or explosive nature.” Also relevant is the definition of “firearm” in the Gun Control Act of 1968, 18 U.S.C. § 921(a)(3)(D), as “any destructive device.”


author: RUSSELL E. SMITH, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roxana GIRAGOSSIANTZ et al., Defendants-Appellants.
    No. 71-2409.
    United States Court of Appeals, Ninth Circuit.
    Nov. 30, 1973.

      Stephen A. Kalemkarian, Fresno, Cal., for defendants-appellants.
    Dwayne Keyes, U. S. Atty., Richard V. Boulger, Asst. U. S. Atty., Russell J. Mays, Acting Reg. Atty., San Francisco, Cal., for plaintiff-appellee.
    Before WRIGHT and CHOY, Circuit Judges, and SMITH, District Judge.

      The Honorable Kussell E. Smith, Chief Judge of the United States District Court for the District of Montana, sitting by designation.

   OPINION

RUSSELL E. SMITH, District Judge:

This action, brought by the United States, involves conflicting claims to the proceeds of raising crops.

The rights of the defendants arise out of a trust deed and an “assignment of rents, issues and profits” describing the debtor Delgado’s property in Kings County, California. The trust deed and assignment were executed and duly recorded in Kings County in the year 1963.

The rights of the United States arise out of a security agreement given the Farmers Home Administration (hereafter FHA) which described crops to be grown on the debtor Delgado’s property. The security agreement was executed and the financing statement duly filed in April 1966.

The debts secured by the instruments described have not been paid. Giragos-siantz gave notice of default and election to sell under deed of trust on September 20, 1967, and thereafter secured the appointment of a receiver. Delgado abandoned the property before the receiver was appointed by a state court. The receiver boxed, sorted, reconditioned, ánd delivered the 1967 raisin crop to a packing company at a cost of $105.02 and received for the crop the sum of $3,663.51.

The district court found the priorities in favor of the United States as to the proceeds of the 1966 and 1967 crops, denied the receiver’s claims for expenses incurred by the receiver except for the $105.02, and entered a money judgment against defendants in the amount of $3,558.49.

Federal law governs the security rights of the United States in connection with FHA loans (United States v. Matthews, 244 F.2d 626 (9th Cir. 1957)), but there is no federal statute applicable, nor is there a controlling FHA regulation. Defendants claim that 6 C.F.R. § 331.10 (1966), which recites in part,

§ 331.10 Security policies.

(a) . . . each loan will be secured as follows:

(1) Crops, title to which is held by the borrower. By a first lien on the applicant’s crops, or his share of the crops if he is a share tenant, which are growing or to be grown by him, subject only to:
(i) The landlord’s lien on the crops for reasonable cash or privilege rent for the current year.
(ii) The real estate mortgagee’s lien on real estate purchase contract holder’s lien on the crops for the current year’s installment on the real estate debt, provided such installment is reasonable when related to the normal rental charges for similar farms in the area . . .,

governs and that under it they are entitled to a priority. The claim fails because 6 C.F.R. § 331.10, the whole of which is entitled “Security policies,” does not fix priorities upon the liquidation of collateral but is rather a set of instructions telling FHA lending officers what kind of security is to be taken at the time a loan is made.

There being nothing in the statutes or regulations governing priorities, the court must fashion the federal rules which are applicable. It is not necessary in this case in the fashioning of the federal rules to choose between the state law (see Royal Indemnity Co. v. United States, 313 U.S. 289, 61 S.Ct. 995, 85 L.Ed. 1361 (1941)) and the federal law merchant (Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943)) because in either case the FHA crop mortgage would prevail over the defendant’s rights under the trust deed assignment.

The language of the trust agreement and assignment,

Trustor also assigns to Beneficiary all rents, issues and profits of said realty reserving the right to collect and use the same except during continuance of default hereunder and during continuance of such default authorizing beneficiary to collect and enforce the same by any lawful means in the name of any party hereto

• * • f

did not create and was not intended to create a present security interest in the crops. The parties intended that the debtor have a right to dispose of the crops until the happening of some future event, i. e., a default and the taking of possession under the trust deed by the trustee or beneficiary. The right to dispose of crops includes the right to mortgage them. The courts of California and the courts stating the federal law merchant have recognized that the rights of a crop mortgagee are superior to the rights of the owner of a trust deed and an assignment of rents taken in connection with it where the chattel mortgage is taken before trustee under the trust deed takes possession. As to the federal law merchant see Freedman’s Saving and Trust Co. v. Shepherd, 127 U.S. 494, 8 S.Ct. 1250, 82 L.Ed. 163 (1888). As to California law prior to the enactment of the Commercial Code, effective January 1, 1965, see Simpson v. Ferguson, 112 Cal. 180, 40 P. 104 (1895), aff’d en banc, 44 P. 484 (1896); First National Bank of Lindsay v. Garner, 91 Cal.App. 176, 266 P. 849 (1928); Bank of America National Trust & Savings Association v. Bank of Amador County, 135 Cal.App. 714, 28 P.2d 86 (1934); Casey v. Doherty, 116 Cal.App. 42, 2 P.2d 495 (1931). Such rights as defendants had under California law depended upon the law governing in 1963 when the trust deed was taken. If the Commercial Code were otherwise available to enlarge defendants’ rights, which we do not decide, it is of no aid to the defendants here because the trust deed and assignment of rents does not qualify as a financing statement under Cal. Commercial Code § 9402 (West 1964).

Defendants urge that costs of the receivership should have been paid from the funds in the hands of the receiver. The direct costs of boxing, sorting, reconditioning, and delivery of the raisins were allowed. The court properly refused to allow the receiver credits for taxes paid to redeem the real property from tax sales. The taxes were paid for the benefit of the beneficiary of the trust deed. The receiver did preserve the raisin crop, and but for his services the crop might have been lost. Under these circumstances that part • of the general costs of the receivership attributable to the preservation of the raisin crop might have been charged to the fund generated by the receiver under the court’s equitable powers. Burnrite Coal Briquette Co. v. Riggs, 274 U.S. 208, 47 S.Ct. 578, 71 L.Ed. 1002 (1927); Palmer v. Texas, 212 U.S. 118, 29 S.Ct. 230, 53 L.Ed. 435 (1909). The district court did not exercise its discretion in this regard but ruled as a matter of law that the lien of the FHA mortgage was superior to any lien which the receiver might have. The record does not disclose any facts from which we can determine what part of the general receivership costs ($779.20) equitably might be charged to the raisin fund. Likewise we cannot determine whether the proceeds of the sale of the real property were sufficient to pay the indebtedness and all of the receiver’s charges. The cause is therefore remanded to the district court to determine whether in the exercise of the court’s discretion some portion of the receiver’s general costs should be borne by funds in the hands of the receiver.

      . The 1966 crops are apparently involved because of delayed payments by a raisin administrative committee which administered the 1966 and 1967 raisin pools, and the United States holds those proceeds which defendants claim.

      . This case did not involve a crop mortgage but does establish an applicable rule.


author: HILL, Circuit Judge. PER CURIAM.

text:
    Helen C. WRIGHT, Plaintiff-Appellee, v. AMERICAN HOME ASSURANCE COMPANY, Defendant-Appellant.
    No. 73-1402.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 15, 1973.
    Decided Nov. 30, 1973.
    Rehearing Denied Jan. 2, 1974.

      Leonard Russon, Salt Lake City, Utah, for defendant-appellant.
    Reed L. Martineau, Salt Lake City, Utah, for plaintiff-appellee.
    Before HILL and BARRETT, Circuit Judges, and SMITH, District Judge.

       Honorable Talbot Smith, Eastern District of Michigan, sitting by designation.

   HILL, Circuit Judge.

This action was brought in the trial court by plaintiff-appellee to recover upon a group life insurance policy covering her deceased husband. The question presented was whether the death of her husband, the insured, was within the terms and provisions of the policy issued by the defendant-appellant, which provided benefits of $50,000 for death resulting from bodily injury caused by accident.

At the conclusion of plaintiff’s case both parties moved for a directed verdict. The trial court granted plaintiff-appellee’s motion and denied defendant-appellant’s motion. Appellant subsequently moved for a judgment notwithstanding the verdict, or in the alternative for a new trial. The motion was denied.

The appellee’s husband, a pharmacist, was the manager of a Rexall Drug Store in Springville, Utah. By virtue of his position he was eligible for and participated in the Rexall Group Accident and Accidental Death Insurance Plan, issued by the American Home Assurance Company, appellant herein.

It appears from the record that the appellee had filed for divorce shortly before the insured’s death. At the same time, the insured was confronted with serious financial problems. The insured also suffered from a heavy drinking problem. Although he quit at one time, he resumed drinking some three or four months before his death and also became a heavy user of amphetamines and sleeping pills. He was found dead in his apartment on April 20, 1971. He was in bed, clothed in pajamas, his head on a pillow and the bed covers pulled over him. The chief of police, who found the deceased, saw no evidence inconsistent with the theory the deceased passed away in his sleep. The deceased’s personal physician, Dr. Parker, was called to the scene, and he examined the body but was unable to determine the cause of death. Subsequently the body was sent to the Utah State Medical Examiner. ' Although no autopsy was performed, tests were conducted on body fluids and the external surface of the body was examined. The Utah State Medical Examiner officially declared the cause of death to be unknown.

At the trial Dr. Parker testified that the deceased was forty-eight years old and had been in good physical condition. He said the pending divorce and financial problems had placed the deceased under a heavy stress before his death. Dr. Parker testified further he did not know the cause of death but that an overdose of sleeping compounds, a stroke, or a heart attack were possibilities, the latter being the most probable. On these facts a verdict was directed for the appellee.

Appellant’s notice of appeal purports to appeal from the order denying the motion for judgment notwithstanding the verdict or for a new trial in the alternative, a nonappealable order. However, incomplete compliance with F. R.App.P. 3(c) should not result in the loss of an intended appeal on the merits. State Farm Mutual Auto. Ins. Co. v. Palmer, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823 (1956); Vigil v. United States, 430 F.2d 1357 (10th Cir. 1970); Cheney v. Moler, 285 F.2d 116 (10th Cir. 1960). Appellant’s intention to seek review of the judgment is manifest. Both appellant and appellee briefed the merits, and the appellant’s statement of issues similarly demonstrates an intent to challenge the judgment. It would be contrary to the spirit of the Federal Rules of Civil Procedure to deny appellant a decision on the merits because of a mere technicality. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). We therefore will consider the merits of the case as an intended appeal from a final judgment.

The appellant contends there was insufficient evidence to direct a verdict for the appellee, and that the motion for judgment notwithstanding the verdict should have been granted. To determine if a sufficient quantum of evidence was introduced, the insurance policy in issue must be considered. A distinction exists between a suit orf an insurance policy providing for stipulated benefits in the event of death, with the exception of enumerated causes, and a policy like the one in issue, which insures against death effected solely through accidental means. Beaver v. Fidelity Life Assoc., 313 F.2d 111 (10th Cir. 1963). As to the former, a plaintiff need prove only death, the burden of proving an exception being on the insurer. As to the latter, however, the burden of proof is upon those who claim under the policy to establish that injuries or death fall within the policy provisions. Crossland v. Continental Casualty Co., 374 F.2d 586 (10th Cir. 1967); Couch on Insurance, § 79:319.

The policy in issue provides indemnity payment for loss resulting from injury, and defines injury to mean: “. . . bodily injury causing the loss . directly and independently of all other causes and effected solely through an accidental bodily injury to the insured person.” (Emphasis added). Appellee therefore had the burden of establishing her husband died as a result of a bodily injury caused by accident. Because the policy does not provide a definition of bodily injury it must be given an ordinary meaning. In common usage, “bodily injury” designates an injury caused by external violence such as a cut, a bruise or a wound. Weber v. Continental Cas. Co., 379 F.2d 729 (10th Cir. 1967); 44 Am.Jur.2d Insurance, § 1223. Appellee suggests workmen compensation cases establish a more liberal interpretation of bodily injury. But because of the broad and extended interpretation of the words under workmen compensation laws favoring the employee, these decisions are not applicable to a case involving a policy of insurance providing indemnity payments for accidental death.

Did, then, the appellee establish that her husband’s death was the result of an accidental bodily injury? The appellee testified she does not know the cause of death. The deceased’s personal physician examined the body and found no external bodily injuries. The Utah State Medical Examiner examined the body for lacerations, bruises and needle marks, and found none. The cause of death officially was listed as “unknown”. All testimony concerning cause of death was speculative in nature. No evidence was introduced to establish ah accidental death.

These facts convincingly establish error by the trial court in directing a verdict for the appellee. A motion for a directed verdict raises a question of law whether there is any evidence which would authorize a verdict against the defendant. Appellee presented no such evidence to the trial court. A trial court should direct a verdict only, when the facts and inferences therefrom point so strongly in favor of one party that reasonable men could not come to a different conclusion. We do not believe ap-pellee has established this quantum of evidence. The appellant’s motion for a directed verdict should have been granted.

The order directing a verdict in favor of appellee is set aside and the action is remanded with directions to enter a judgment in favor of appellant.

ON PETITION FOR REHEARING

PER CURIAM.

Appellee has filed a petition for rehearing and therein relies heavily on a decision of the Utah Supreme Court handed down subsequent to oral arguments and the decisional process had in this case. Elton v. Bankers Life & Cas. Co., 516 P.2d 165 (filed November 20, 1973). We did not have an opportunity to consider this case in our opinion.

Elton involved a suit by the beneficiary of an accident policy to recover death benefits provided in the policy. Benefits were to be paid if the insured’s death was a result of “a bodily injury causing death (the loss) directly and independently of all other causes and effected solely through an accidental bodily injury.” (This language is similar to that contained in the Wright policy). The deceased suffered a heart attack in 1954, a stroke in 1969, and died in 1970. The autopsy and testimony of two doctors showed death resulted from a cerebral vascular disease, aggravated by progressive arteriosclerosis. The court denied recovery, stating it was evident from the term “aggravation” that death could not have resulted from an accident directly and independently of all other causes. Through dictum, however, the court stated it would have been a different case if aggravation had not existed.

Relying upon Elton, appellee contends Utah law allows recovery for a heart attack where there is no evidence of a pre-existing injury. We believe Elton and the present case can be distinguished.

Under both policies the injury must be the sole, independent cause of death. The autopsy and doctor’s testimony in Elton established the deceased’s injuries. Wright’s injuries, however, remain unknown. How can it be said that his injury was the sole, independent cause of death when the injury and the cause of death are unknown? Several theories were presented, but none was proven. Assuming a heart attack is within the terms of the policy, appellee still failed in her burden of proof.

The petition for rehearing is therefore denied.

      . The trial court erroneously denied the admission of the insurance policy into evidence. The record shows the policy was properly offered, and we consider it as a part of the trial record before us.