author: RIVES, Circuit Judge: GODBOLD, Circuit Judge

text:
    Ethelyn GILBERT et al., Plaintiffs-Appellants, v. W. L. STERRETT, Dallas County Judge, et al., etc., Defendants-Appellees.
    No. 74-1467.
    United States Court of Appeals, Fifth Circuit.
    March 24, 1975.
    Rehearing and Rehearing En Banc Denied June 16, 1975.

      Edward B. Cloutman, III, Walter Irvin, John F. Jordan, Dallas, Tex., for plaintiffs-appellants.
    Mel Price, pro se.
    John Whittington, pro se.
    Henry Wade, Dist. Atty., John B. Tolle, Asst. Dist. Atty., Earl Luna, Thomas V. Murto, III, Dallas, Tex., for Sterrett, Tyson, Orr.
    Before RIVES, GODBOLD and IN-GRAHAM, Circuit Judges.
   RIVES, Circuit Judge:

This class action, filed on May 5, 1972, challenged the apportionment in 1971 of County Commissioners’ precincts or districts of Dallas County, Texas, alleging racial gerrymander or, alternatively, the effect of diluting the vote of black citizens. The named plaintiffs are black voters in Commissioners’ Precincts 3 and 4. The defendants are the County Judge and the four County Commissioners. At a pretrial conference on April 16, 1973, it was agreed that the case would be passed until the Commission redistricted itself in August, 1973. A new plan was adopted which plaintiffs alleged failed to cure the defects in the 1971 plan. The case was tried, beginning January 15, 1974. The district court entered its judgment on January 30, 1974, denying relief to the plaintiffs. This appeal ensued.

On appeal the plaintiffs-appellants contend that the district court either applied the wrong standard of law or was clearly erroneous in its findings of fact. We affirm.

The constitutional test actually applied by the district court was stated in its opinion as follows:

“It is well established that to prove the existence of a constitutionally impermissible redisricting [sic] plan in the absence of malapportionment, plaintiffs must show (1) a racially motivated gerrymander, or a plan drawn along racial lines, or (2) the apportionment plan would operate to minimize or cancel out the voting strength of racial or political. elements of the voting population. An apportionment scheme is not constitutionally impermissible merely because its lines are not carefully drawn to ensure representation to sizable racial, ethnic, economic or religious groups.

(App. p. 102.)

Though stated in different language, that standard of law does not differ materially from the standard as variously stated by this Court in Zimmer v. McKeithen (en banc), 5 Cir. 1973, 485 F.2d 1297, 1303; Turner v. McKeithen, 5 Cir. 1973, 490 F.2d 191, 193-197; Moore v. Leflore County Board of Election Commissioners, 5 Cir. 1974, 502 F.2d 621, 623, 624; Robinson v. Commissioners Court, Anderson County, 5 Cir. 1974, 505 F.2d 674.

Dallas County contains several incorporated municipalities, the largest being the City of Dallas. According to the 1970 Census, the population of the County was 1,327,321, of which 72.59% were white, 16.61% black, 6.26% Mexican-American, and 4.54% unknown. Approximately 90% of the black population lived in the City of Dallas and were nearly all concentrated in one part of the City.

The Commissioners’ Court is the governing and legislative body for the County, charged with the County’s “general operation,” with the approval of the budget of county departments and of elected county officials, and with the appointment of members of the boards of the County Hospital and of the County Welfare Department. The Commissioners’ Court is comprised of four commissioners, elected from precincts or districts, and the County Judge, elected from the County-at-large. Historically, the precincts or districts have been formed by dividing the County into quadrants: district one-northwest quadrant, district two-northeast quadrant, district three-southeast quadrant, district four-southwest quadrant. The Commissioners’ Court has authority in odd-numbered years to revise boundaries of the districts. Every even-numbered year two commissioners are elected for four-year terms. Commissioners from districts 1 and 3 run in presidential election years, while those from districts 2 and 4 run in other even-numbered years.

In the 1971 plan, the Commissioners’ Court satisfied the constitutional requirement of “one man, one vote,” but was challenged as being racially discriminatory. Specifically the complaint charged that the north-south boundary line between districts 3 and 4 was a gerrymander which had the effect of removing a square-shaped area, densely populated with black citizens, out of district 3 and placing it in district 4, thus preventing the election of a black resident of district 3 and diluting “the black vote that existed in old Precinct District Three.”

In the 1973 plan, the Commissioners’ Court substantially straightened the 1971 peculiarly shaped boundary line between districts 3 and 4 without creating inequality of population between the two districts. While the 1971 plan had shifted black voters out of district 3 into district 4, the 1973 plan had the opposite effect. The district court found “[u]nder •the 1971 plan, 26.9% of the population in district three and 29.0% in district four were black. Under the 1973 plan 38.6% and 16.9% in districts three and four, respectively, were black. The overall effect of the 1973 plan was to shift approximately one-fourth of the black population from district four to district three.” (App. 104.)

The district court found no substantial evidence that the adoption of either plan was racially motivated, and that finding is not seriously contested. Certainly that finding is not clearly erroneous.

The plaintiffs-appellants no longer claim any constitutional infirmity in the 1971 plan. Their expert political analyst testified that, in his opinion, the 1971 plan did not dilute, minimize or cancel out the voting strength of any minority group in district 3 or 4. The 1973 plan is now the target of the attack.

In our opinion the district court adequately answered that attack as follows:

“Plaintiffs’ contention that the 1973 plan dilutes and cancels out the black vote is principally based on the testimony of political analyst Dan Weiser’s projection of black population growth in Dallas County. According to Weiser the 1973 plan assures that there would not be a possibility of a black majority in any commissioner district until 1985. This forecast is based on two assumptions: (1) that 80% of the black growth from the present until 1985 will be in district four, which under the 1973 plan, has 16.9% of the black population and (2) that the total population growth in Dallas County would be uniform in each district so that the county would not have to be reapportioned again until 1985. While there is some probative evidence to support Weiser’s first assumption, and no evidence to support the second, this court is of the opinion that an apportionment plan that presently passes constitutional muster but which may dilute black voting strength ten years hence, does not compel a determination that the existing plan is constitutionally impermissible.
“The 1973 plan increased the percentage of black voters in district three from 26.9% to 38.6% when the total black population in Dallas County is 16.6%. Also the percentage of minority voters in district three was increased from 36.6% to 46.5% when the total minority population in Dallas County is 23.5%. Further, the existing black and minority composition in commissioner district three is more favorable to blacks and minorities than Congressional and state senatorial districts located in the Dallas County area.
“This court is of the opinion that the 1973 plan does not dilute the voting strength of black voters. Even assuming that 80% of the black population growth between the present and 1985 will be in district four there is no evidence that the 1973 plan will be the same plan utilized in 1985. The past history of Dallas County reflects that there has not been uniform population growth in the commissioner’s [sic] districts and that commissioners court has had to periodically redistrict to satisfy the constitutional requirement of “one-man, one-vote.” There has been no showing that uneven population growth among the districts and periodical redistricting will not occur in the future.
“This court is of the opinion that to require the Commissioners Court of Dallas County to reapportion commissioners districts in 1973 based on projected 1985 population statistics is beyond the constitutional mandate of Burns v. Richardson [384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966)], supra. Such a requirement in this case would result in mathmatical [sic] inaccuracies and the adoption of a plan which would presently dilute the voting strength of blacks in the commissioners districts of Dallas County.
“There is no evidence that in the elections to be held in 1974 or 1976 that the 1973 plan would operate to minimize, cancel or dilute the voting strength of black voters. Under the record of this case, any determination as to the constitutional validity of the 1973 plan beyond the 1976 elections would be speculative and conjectural. For the foregoing reasons this court is of the opinion that the 1973 plan is constitutional.” (App. 104 — 106.)

It is clear that none of the findings of fact should be set aside as clearly erroneous. See F.R.Civ.P. 52(a). There may, however, be some question as to the sufficiency of the findings, specifically as to whether the district court considered the 1978 plan in the light of the past history of racial discrimination in Dallas County.

This appeal is not from the opinion of the district court but from its judgment.

“ . . . the nature of the evidentiary findings sufficient and appropriate to support the court’s decision is for the trial court to determine in the first instance in the light of the circumstances of the particular case. We hold . . . that there must be findings, stated either in the court’s opinion or separately, which are sufficient to indicate the factual basis for the ultimate conclusion.”

Kelley v. Everglades District, 1943, 319 U.S. 415, 422, 63 S.Ct. 1141, 1145, 87 L.Ed. 1485.

Rule 52(b) provides in part that after the entry of judgment a party may move the court to amend its findings or make additional findings. See Wright and Miller, Federal Practice and Procedure: Civil § 2582. It does not appear that such a motion was filed in this case. The text writers emphasize that, in cases tried without a jury there should be no formal barriers to appellate review of the court’s findings. See Wright and Miller, supra, § 2581; 5 A. Moore’s Federal Practice If 52.11[4]. Indeed the Rule itself provides:

When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings or has made a motion to amend them or a motion for judgment.

Under the circumstances of the present case we attach no significance to the failure of the plaintiffs-appellants, to file a motion in the district court for additional findings.

On the other hand, findings “should be- construed liberally and found to be in consonance with the judgment, so long as that judgment is supported by evidence in the record.” Zimmerman v. Montour Railroad Co., 3 Cir. 1961, 296 F.2d 97, 98; Blumenthal v. United States, 3 Cir. 1962, 306 F.2d 16, 17, 18.

The findings and conclusions themselves are clearly susceptible of the construction that the district court considered the 1973 plan in the light of Dallas County’s past history of racial discrimination. The district court specifically ruled that, “This court is of the opinion that the 1973 plan does not dilute the voting strength of black voters.” Also in the constitutional test applied by the district court (ante p. 1392) it is recognized that the apportionment plan was subject to attack if it “would operate to minimize or cancel out the voting strength of racial or political elements of the voting population” (language borrowed from Fortson v. Dorsey, 1965, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401). The district court’s opinion opted against “the adoption of a plan which would presently dilute the voting strength of blacks in the commissioner’s districts of Dallas County.” (ante p. 1392.)

The district court took judicial notice of the findings of fact in Graves v. Barnes, 343 F.Supp. 704 (W.D.Tex.1972), aff’d sub nom. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). Those findings of fact state unequivocably that Blacks in Dallas, Texas, have been subject to blatant discrimination and delimit the most salient aspects of that discrimination as it pertains to the political process. The court also received testimony about racially tinged campaign “dirty tricks,” the effect of Black votes on earlier Dallas County elections, and the number of Blacks winning office. We attach as an Appendix a list showing the introductions of evidence relevant to past racial discrimination.

While the court agreed to consider the evidence only if relevant, the appellant has brought no evidence to this court’s attention to show that the district court failed to consider the evidence. From the record as a whole we conclude that the district court’s findings were sufficient and were not clearly erroneous.

What counsel for plaintiffs-appellants asked on oral argument was a remand with direction that the Commission fedistriet itself once more, this time so that the majority of voters in at least one district be Blacks. That would be contrary to the settled rule that “a minority group is not constitutionally entitled to an apportionment structure designed to maximize its political advantage.” Turner v. McKeithen, supra, 490 F.2d at 197.

We find no reversible error. The judgment is

Affirmed.

APPENDIX

PAGE

42 Motion for court to take judicial notice of finding of fact in Graves v. Barnes, 343 F.Supp. 704 (W.D.Tex.1972), aff’d. sub nom White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973).

121(a)

122 Court sustains above motion; took notice of those decisions insofar as they may be relevant. Judge says he has read cases — but not in detail — “insofar as . relevant to any issue in this case, the. Court will consider those.”

211 Cross-examination of Mr. Reed, a former state legislator (late 60’s and early 70’s), trial judge asks him how many Black legislators were in legislature while Reed served.

PAGE

“Two in each session, or one in each session ?”

212 Reed asked about slating and about effect on minority representation of change from multi-member legislative districts to single member districts.

314, Testimony and statistics 316, 317 (plaintiff’s exhibit #36) offered on contested legislative races — involving the Black vote —from 1960 to 1970. Judge overruled objection to receipt of that evidence and evidence contained in plaintiff’s exhibit #35. Overruled objection, will consider if relevant.

320 Testimony that in legislative races from 1960 to 1970 Negro votes made no difference in the outcome.

325 Testimony about two Black representatives and multimember districts.

327 Testimony that it was, and is, possible between 1960 and 1970 for a politician to completely ignore the Negro bloc vote.

393, Testimony about racial dis-396 crimination in Dallas, judge overrules an objection thereto.

399 Testimony about racial discrimination finding in Graves v. Barnes case.

335, Testimony about racist cam-347 paigning.

348 Testimony that Negro has been precluded from meaningful participation in the candidate selection process.

375 Testimony about “racial campaigning.”

392 Testimony about percentages of Blacks in the congressional districts in 1960’s and before.

397 Returns of the May 1964 Democratic primary introduced as defendants’ exhibit #6; May 1968 returns, defendants’ exhibit #5.

PAGE

400-

407 Returns of the 1962 commission race between a Black and White, defendants’ trying to show that Blacks did influence the race.

406 Testimony about the 1964 commission race.

412 Testimony to show that Negroes influenced 1970 commissioner’s race.

414 Court states that it understands the point that defendants are trying to make. “Any time the difference in candidates [votes] is equal to the number of Negro voters . . . they could have an influence on the election.”

*****

“If it equaled the number of Chinese voters, [they] could have an influence on the election.”

GODBOLD, Circuit Judge

(dissenting):

I agree with the majority that the District Court did not err in holding that the 1973 redistricting plan was not shown to be racially motivated. I am not able to agree that the District Court correctly considered the plaintiffs’ alternative theory of “dilution” of the black vote, that is, that redistricting, even if not racially motivated, had the effect of minimizing or cancelling out the voting strength of black citizens.

The District Court’s brief discussion of the dilution issue states that the plaintiffs’ case was “principally based” on the testimony of a political analyst who projected future black population growth in Dallas County and concluded that in neither district three nor district four would there be a black majority within ten years. Having referred only to this statistical evidence of future demography, the District Court concluded: “There is no evidence that in the elections to be held in 1974 or 1976 that the 1973 plan would operate to minimize, cancel or dilute the voting strength of black voters.” [emphasis added.]

A redistricting plan not devised with a discriminatory motive may nevertheless be unconstitutional. The test is whether the plan, combined with a past history of racial discrimination and present political realities, gives minority group members “less opportunity than . . . other residents in the district to participate in the political processes and to elect legislators of their choice,” White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314, 324 (1973), aff’g in part, rev’g in part Graves v. Barnes, 343 F.Supp. 704, 732 (W.D.Tex., 1972). The rule is a judicial recognition of what common sense commands — that the effect or impact of a redistricting plan cannot be evaluated accurately when considered in isolation but only when examined against the backdrop of racial discrimination in the community, past and present.

We have followed White v. Regester in a series of cases. Turner v. McKeithen, 490 F.2d 191 (CA5, 1973); Moore v. LeFlore County Board of Election Commissioners, 502 F.2d 621 (CA5, 1974); and Robinson v. Commissioners Court, 505 F.2d 674 (CA5, 1974). Cf. Taylor v. McKeithen, 499 F.2d 893 (CA5, 1974); Reese v. Dallas County, Alabama, 505 F.2d 879, (CA5, 1974); and Bradas v. Rapides Parish Police Jury, 508 F.2d 1109 (CA5, 1975). White v. Regester itself was an affirmance of a three-judge district court decision from this circuit originally styled Graves v. Barnes. In its affirmance the Supremé Court relied heavily on the factual history and existent practices of discrimination found by the District Court to exist in Dallas County, Texas, the very geographical area here under consideration. 412 U.S. at 765-769, 93 S.Ct. 2332, 37 L.Ed.2d at 324-325.

The three-judge court in Graves v. Barnes held that “a multi-member [state legislative] district in Dallas County tends to dilute or cancel out the vote of Dallas County’s Negro minority,” and was therefore unconstitutional. The undergirding facts to which the court gave weight are set out in 343 F.Supp. at 724 — 27. They are:

1. The strict “majority” rule that requires a majority vote as a prerequisite to nomination in a primary election.

2. The “place” requirement that limits candidates for legislative office to a specified “place” on the ballot, the ultimate effect of which is to highlight the racial element where it exists.

3. The absence of a provision for at-large candidates running from particular geographical sub-districts.

4. The “rather colorful history of racial segregation” in Texas, consisting of “innumerable instances, covering virtually the entire gamut of human relationships, in which the State has adopted and maintained an official policy of racial discrimination against the Negro.”

5. The statistical disproportion between the number of black residents who have been legislators and the number of black ghetto residents.

6. The fact that the black community has been effectively excluded from participation in the Democratic Primary selection process.

7. The exclusion of black community leaders from the affairs of the Dallas Committee for Responsible Government, without whose endorsement it is difficult to secure a legislative seat or the Democratic Primary nomination. The DCRG decides how many black candidates, if any, it will slate, and then requests black leaders to recruit the candidates.

8. Negroes in Dallas County are permitted to enter the political process in a meaningful manner “only through the benevolence of the predominant white majority.”

The foregoing constituted the past history and practices, current through 1970, as found by the three-judge district court in 1972. The trial court in the case before us took judicial notice of these findings. There is additional evidence in the record of more recent political conditions in Dallas County, but to an appellate court it is conclusive neither .that the pre-1972 conditions have been eliminated nor that they retain sufficient vigor to render the proposed districting plan unconstitutional. Taken as a whole the evidence required the trial court to consider in detail whether the 1973 plan, when judged against the backdrop of the past history of racial discrimination and present conditions, is constitutional. But there is not in its opinion any finding, mention or even hint that the court gave consideration to the combination of past history as reflected in Graves v. Barnes and current practice, as it was required to do. To the contrary, it held — after discussing only the statistics of future demographic trends — that there is “no evidence” that the 1973 plan .would “minimize, cancel or dilute the voting strength of black voters.”

The result is that plaintiffs here have not been given a proper determination under currently recognized standards of whether their voting rights have been diluted by means of the challenged districting plan. I think the case should be sent back to the trial court for proper findings and rulings by the judge who heard all the testimony and evidence.

With deference to my brothers, I do not understand their determination to perpetuate a result at best dubious. Justice will not be harmed by a remand and entry of more precise findings that will dispel the cloud around this decision. The majority opinion seems to me to reveal on its face that the majority are neither confident nor even comfortable with what they have decided. Nor do I understand the methodology of the salvage effort. Judge Rives has searched the record to find illustrations of past and present practices of racial discrimination, including the judicially noticed facts of Graves v. Barnes. Recognizing that this evidence existed and was before the trial court for its consideration and that the court was bound to consider it, the majority opinion then concludes that the plaintiffs have brought no evidence to our attention (at the appellate level) to show that the District Court failed to consider what it was obligated to consider. I have two points in response:

1. One need read only what the District Judge said. After talking of the future he said “there is no evidence” that the 1973 plan will produce dilution. There is evidence, substantial evidence, some of it bearing the stamp of approval of the Supreme Court. The majority’s recital of the evidence does not cure the error but more firmly establishes it.

2. General conclusory statements that a burden of proof or standard has been met, vel non, are not adequate for judicial review under Rule 52(a), F.R.Civ.P. The requirement of adequate findings does not go to jurisdiction but to our discretion whether “a full understanding of the issues [can] be reached without the aid of [additional] findings.” The test is whether the findings provide “a clear understanding of the basis of the trial court’s decision [or] whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision.” (Citations omitted.) In the trial court’s opinion there is not a single specific reference to any of the facts relating to the dilution theory based on past discrimination and present political realities. It is true that we review judgments, not opinions, but a judgment is no better than the supporting facts properly found and the law properly applied.

This case is a classic illustration of the wisdom of Rule 52(a) requiring findings and of the Kelley principle. Here we are, in a case affecting the constitutionally-guaranteed rights of many thousands of black citizens and the political structure of a populous and important county, engaged in a 2 — 1 difference of view between appellate judges who are forced to try to divine what evidence the trial court considered and whether it had in view the correct governing law. Federal rules and practice intended to make this kind of argument as extinct as the dinosaur.

In our prior decisions we have sought to implement impeccably the mandate of the Supreme Court with respect to “benign” redistricting. This case departs from that tradition. I would reverse the decision and remand to the District Court with instructions to consider the issue of non-discriminatory redistricting in light of the prior history and current political practices and to enter findings accordingly. All will then know whether the chips have fallen where under the law and the facts they should.

      . Wright v. Rockefeller, 376 U.S. 52 [84 S.Ct. 603, 11 L.Ed.2d 512] (1964); Gomillion v. Lightfoot, 364 U.S. 339 [81 S.Ct. 125, 5 L.Ed.2d 110] (1960); Howard v. Adams County Board of Supervisors, 453 F.2d 455 (5th Cir. 1972), cert. denied 407 U.S. 925 [92 S.Ct. 2461, 32 L.Ed.2d 812] (1972).

      . Burns v. Richardson, 384 U.S. 73 [86 S.Ct. 1286, 16 L.Ed.2d 376] (1966); Howard v. Adams County Board of Supervisors, 453 F.2d 455 (5th Cir. 1972), cert. denied 407 U.S. 925 [92 S.Ct. 2461, 32 L.Ed.2d 812] (1972).

      . Whitcomb v. Chavis, 403 U.S. 124 [91 S.Ct. 1858, 29 L.Ed.2d 363] (1971).”

      . This court employed a similar analysis in Taylor v. McKeithen, 5th Cir. 1974, 499 F.2d 893, 896, 897.

      . It is not our task to determine how the case got into its awkward posture. The most likely possibility seems to me to be that the District Court simply was not aware that a background of racial discrminatiori had any evidentiary relationship to dilution, but rather viewed dilution as a concept related only to the future. That is, he knew all the facts but considered only part of them to be significant (hence the discussion of future demography and the conclusion that there is “no evidence” of dilution). The trial judge employed the “operate to minimize or cancel out the voting strength” [of minorities] language of Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401, 405 (1963), but cited only Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966), and Howard v. Adams County Board of Supervisors, 453 F.2d 455 (CA5, 1972), cert. denied 407 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812 (1972). Neither of those cases contains any holding on the issue. White v. Regester and Turner v. McKeithen had spelled out the meaning of minimization or dilution. Neither was cited. Of course, the District Judge could not be aware of our more recent decisions defining those terms, Moore and Robinson, because they were handed down after his decision.

      . The leading case is Kelley v. Everglades Drainage District, 319 U.S. 415, 63 S.Ct. 1141, 87 L.Ed. 1485 (1943), from which Judge Rives quotes. The question there was whether a composition of debts of a bankrupt was “fair, equitable, and for the best interests of the creditors . . ..” The Court declined to reach the merits, holding that it must remand for
      “findings, in such detail and exactness as the nature of the case permits, of subsidiary facts on which the ultimate conclusion of fairness can rationally be predicated.
      "The findings in the present case fall short of that requirement. ... It may be that adequate evidence as to these matters is in the present record. On that we do not pass, for it is not the function of this court to search the record and analyze the evidence in order to supply findings which the trial court failed to make. Nor do we intimate that findings must be made on all of the enumerated matters or need be made on no others; the nature of the evidentiary findings sufficient and appropriate to support the court’s decision is for the trial court to determine in the first instance in the light of the circumstances of the particular case. We hold only that there must be findings, stated either in the court’s opinion or separately, which are sufficient to indicate the factual basis for the ultimate conclusion.” (Footnote omitted.)
      319 U.S. at 420-422, 63 S.Ct. at 1145, 87 L.Ed. at 1488, 1489. See also Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 (1955), and Schneiderman v. United States, 320 U.S. 118, 129-131, 63 S.Ct. 1333, 87 L.Ed. 1796, 1804-1805 (1943) (dictum). This court has followed the same procedure where the trial court failed to enter findings of fact or provided only general conclusions as to the sufficiency of the evidence. United States v. Rohm & Haas Co., 500 F.2d 167, 176, 177 (CA5, 1974) (findings adequate on one issue, inadequate on another); Ellis Diesel Sales and Service, Inc. v. M/V On Strike, 488 F.2d 1095 (CA5, 1973) (summary vacation of judgment and remand for findings under Rule 52(a)); Acme Boat Rentals, Inc. v. J. Ray McDermott & Co., 407 F.2d 1324 (CA5, 1969) (same); Lettsome v. United States, 434 F.2d 907 (CA5, 1970) (conclusion that plaintiff was not contributorily negligent not adequate); Mladinich v. United States, 371 F.2d 940, 941 (CA5, 1967) (statement that government supported its case with clear and convincing evidence not adequate); Southland Corp. v. Campbell, 358 F.2d 333, 337-338 (CA 5, 1966). Accord, O’Neill v. United States, 411 F.2d 139 (CA3, 1969). See generally Wright and Miller, Federal Practice and Procedure, §§ 2577 and 2579, and 5A Moore’s Federal Practice fl 52.06 [2].

      . Davis v. United States, 422 F.2d 1139, 1142 (CA5, 1970). Nor is a distinction drawn between subsidiary and ultimate facts. What the trial court should set out are those facts on which its decision is based and upon which this court probably will have to rule in review. See Kelley and O’Neill, supra, note 2.

      . Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508, 515 (CA5, 1969). See also United States v. Northside Realty Associates, 474 F.2d 1164, 1171 (CA5, 1973) (court could not ascertain which facts were relied on or how law was applied, where reliance on one set of facts would have constituted constitutionally impermissible violation of free speech rights), and cf. United States v. Johnson, 496 F.2d 1131, 1138, n. 7 (CA5, 1973) (adopts Gulf King Shrimp test for adequacy of findings under Rule 23(c), F.R.Crim.P.).

      . The trial court made adequate findings on facts related to the future dilution theory of the plaintiffs’ cause of action, while making no reference to facts relating to the alternate theory, of which the plaintiffs made a record by securing judicial notice of Graves v. Barnes. Rule 52(a) is not satisfied by hit- and-miss findings on parts of the suit. Moreover, both theories concerned what constitutes “dilution” of minority voting rights by means of non-racially motivated districting plans. In light of the fast development and recent uncertainty of the constitutional doctrines involved, it is especially important that the factual bases of these decisions be spelled out with clarity. The circuit courts and the Supreme Court should have concrete, substantial records and findings if they are to rule intelligently and with a sharp eye to reality in this area.


source: Caselaw Access Project

author: KOELSCH, Circuit Judge:

license: Public Domain

text:
    In the Matter of Charles A. STEEN, Debtor. Dick DIMOND, Trustee, Appellees, v. UNITED STATES of America, Appellant.
    No. 73-3099.
    United States Court of Appeals, Ninth Circuit.
    Jan. 13, 1975.

      Louis A. Bradbury (argued), Tax Div., Dept, of Justice, Washington, D. C., for appellant.
    Aaron Holman (argued), New York City, for appellees.
    Before KOELSCH, CARTER and CHOY, Circuit Judges.
   OPINION

KOELSCH, Circuit Judge:

The United States appeals from the judgment of the district court adjudicating the government’s claim for federal income tax deficiencies against taxpayer Steen, the debtor in a Chapter XII bankruptcy proceeding, and his trustee in bankruptcy. The case came before the district court on the parties’ cross-petitions for review of a decision of the referee in bankruptcy. Our jurisdiction rests on 28 U.S.C. § 1291.

The principal question presented is whether the sum of $458,532.03 which Steen received in 1966 is properly treatable as recovery of basis and capital gain, or simply as ordinary income. However, as will become apparent, the answer serves to raise an additional question that will require further proceedings.

The relevant facts are these: In 1952, Steen made an extraordinarily rich uranium discovery in Utah. He subsequently transferred this claim, known as Mi Vida, and others to Utex Exploration Company (Utex), a Utah corporation, in exchange for shares of Utex stock. Utex and others then formed a corporation known as Uranium Reduction Company (URC) to process uranium ore.

In 1962, Atlas Corporation (Atlas), which like Utex owned a substantial portion of the outstanding URC stock, entered into negotiations with Utex and its shareholders to acquire the Utex holdings of URC stock and Mi Vida. Atlas had no interest in other Utex assets, but it did want the Utex management personnel to continue because of their proven ability to operate Mi Vida.

The parties ultimately entered into two written contracts. Both were executed and dated May 29, 1962. By the terms of one — the Stock Purchase Agreement — Steen and all the other Utex shareholders agreed to sell to Atlas 85 per cent of their respective Utex shares and to transfer the remaining 15 per cent to Utex in exchange for all assets of the latter except Mi Vida and Utex’. stock in URC. The specified purchase price was $12,980,000, of which $3,890,000 (or 29.9 per cent) was payable upon closing, with the remainder in installments over the period from August, 1962, through December, 1966. The installment payments were to be secured by a first mortgage on Mi Vida.

By the terms of the second contract— the Mining Agreement — Steen and the other Utex shareholders (the Mining Contractors) agreed to mine Mi Vida for Atlas until December 31, 1966, by which date the parties anticipated the mine would be completely exhausted. The Mining Agreement contained a provision for certain state taxes, the effect of which was to require Atlas to pay the Mining Contractors any difference between $827,000, the anticipated sum of those state taxes, and the amount Atlas would actually pay out for that purpose.

At the time the two agreements were executed, some doubt existed in the Utah mining industry as to whether the Utah tax on mines was properly a personal obligation of a mine’s owner, or simply a lien against his mine property. The issue was put to rest several years later by the Supreme Court of Utah, which held that the tax was not a personal obligation. See San Juan County v. Jen, Inc., 16 Utah 2d 394, 401, 952 (1965) ; Atlas Corporation v. State Tax Commission, 18 Utah 2d 57, 415 P.2d 208 (1966) . By the time of the latter decision, Mi Vida was fully exploited and worthless. And because Atlas had no reason to keep Mi Vida and because its actual tax payouts were less by approximately $500,000 than the anticipated $827,000, it paid this difference in 1966 to the Mining Contractors, as provided in the tax provision in the Mining Agreement. Steen’s share amounted to $458,-532.03. It is that payment which forms the basis for this controversy.

Steen elected in his 1962 income tax return to report his share of the sales price provided in the Stock Purchase Agreement, i.e., $10,666,023.85 on the installment method pursuant to Int.Rev. Code of 1954, § 453, 26 U.S.C. § 453; he made no mention of any further sum which he might receive under the tax provision in the Mining Agreement. However, in his 1966 return, Steen reported the tax contingency payment ($445,941.85 — the $458,532.03 payment less a basis of $12,590.18) as additional capital gain from the Utex stock sale.

The Commissioner, however, took the position that the sum was not capital gain. Pointing to the fact that there were two agreements — the Stock Purchase Agreement which dealt with assets and specified a fixed price for the same, and the Mining Agreement which dealt with services and contained the provision under which the payment under consideration was made — he argued that the payment was not for capital assets but reflected solely compensation for services, and that the Stock Purchase Agreement constituted a “closed transaction”; that is, one where the purchase price is either specified or can be ascertained with reasonable certainty.

Steen, on the other hand, contended that the two agreements were part of a single transaction and should be read together; that properly construed, the tax contingency provision related to capital assets and constituted part of the consideration for their purchase. He now adds that because the tax contingency possessed no ascertainable fair market value when the agreements were executed, he is entitled, despite his declaration of a fixed consideration in his 1962 return, to treat the sale as “open” because the installment method of reporting it was substantively unavailable to him in 1962, see Gralapp v. United States, 319 F.Supp. 265 (D.Kan.1970), aff’d, 458 F.2d 1158 (10th Cir. 1972), and under our holding in Mamula v. Commissioner, 346 F.2d 1016 (9th Cir. 1965), he is not bound by his impermissible election.

The referee and district court agreed with Steen. They determined that the two agreements integrated a single transaction; that they should read together; that the tax contingency payment constituted part of the purchase price for capital assets as distinguished from compensation for services; and that the payment was not taxable until received in 1966.

With respect to the issue concerning integration of the two agreements and the allocation of the monies paid under the tax clause, the finding was:

“The $458,532.03 that was paid by Atlas to Debtor [Steen] in 1966 represented his share of an allowance that had been granted conditionally to Atlas in 1962 in fixing the sales price of his Utex shares, and on recovery thereof by Debtor this sum constituted an addition to the sales price of the said shares.”

We cannot say that this factual determination was “clearly erroneous.” Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Chism’s Estate v. Commissioner, 322 F.2d 956 (9th Cir. 1965); Cohn v. Commissioner, 226 F.2d 22 (9th Cir. 1955).

While it is true that neither document refers specifically to the other, neither proclaims itself to be a complete integration of the agreement between the parties. Given the size of the transaction, the related subject matter of the two documents, the fact that they were contemporaneously negotiated, drafted, executed and delivered, and the substantial certainty that neither would have been executed without the other, it is apparent that they integrate a single large transaction. Where two or more written agreements are contemporanepusly executed as part of one complete transaction, we have labeled “elemental” the proposition that they must be construed together. Parker v. Commissioner, 166 F.2d 364, 367 (9th Cir. 1948). See, e.g., Kurz v. United States, 156 F.Supp. 99, 104 (S.D.N.Y.1957), aff’d, 254 F.2d 811, 812 (2d Cir. 1958); Bullfrog Marina, Inc. v. Lentz, 28 Utah 2d 261, 501 P.2d 266, 270-271 (1972); 4 Williston on Contracts, § 628 at 904 (3d ed. 1961). Further, the conclusion may be fairly drawn that the tax contingency provision reflects part of the purchase price for assets. Depending upon the taxes paid, the value of those assets and the amount to be paid to the vendors was correspondingly increased or diminished.

We are also clear that — as the Commissioner appears to concede in brief — the contingency payment had no ascertainable fair market value in 1962. This case appears to present one of those rare and extraordinary situations where such a conclusion is permissible, for the right to the payment depends entirely upon a favorable judicial decision on a novel question of state law; in short, we regard payment vel non as “wholly contingent upon facts and circumstances not possible to foretell with anything like fair certainty.” Burnet v. Logan, 283 U.S. 404, 413, 51 S.Ct. 550, 552, 75 L.Ed. 1143 (1931); Westover v. Smith, 173 F.2d 90, 91-92 (9th Cir. 1949). Hence the sale of stock was as taxpayer contends, an “open” transaction, and, under Gralapp and Mamula, taxpayer’s election of the installment method of reporting that transaction was impermissible and will not be binding upon him. It necessarily follows that taxpayer’s gain realized by reason of the contingency payment, being “gain from the sale or exchange of a capital asset,” is taxable as capital gain in the year of its receipt. Westover, supra, 173 F.2d at 92; Commissioner v. Carter, 170 F.2d 911, 912-913 (2d Cir. 1948).

Taxpayer nevertheless misconceives the full import of his disqualification from installment reporting under § 453. By that section, Congress provided an exception to the general rule that the gain realized on the sale or other disposition of an asset is recognized in the year of sale. The statute “was enacted, as shown by its history, to relieve taxpayers who adopted it from having to pay an income tax in the year of sale based on the full amount of anticipated profits when in fact they had received in cash only a small portion of the sales price.” Commissioner v. South Texas Lumber Co., 333 U.S. 496, 503, 68 S.Ct. 695, 700, 92 L.Ed. 831 (1948); cf. Tombari v. Commissioner, 299 F.2d 889, 891 (9th Cir. 1962).

But where, as here, § 453 is substantively unavailable to a taxpayer, the established realization and recognition principles under Int.Rev.Code of 1954, §§ 1001 and 1002, 26 U.S.C. §§ 1001 and 1002, are controlling. Under § 1001, “the amount realized from the sale or other disposition of property shall be the sum of any money received plus the fair market value of the property (other than money) received.” Under § 1002, “[e]xcept as otherwise provided in this subtitle, on the sale or exchange of property the entire amount of the gain or loss, determined under section 1001, shall be recognized.”

Taxpayer’s contention that the discounted value of the installment payments is not treatable as “property (other than money) received” in the year of sale because those obligations, like the right to the contingency payment, had no ascertainable fair market value in 1962, is unsound. Atlas was solvent, and it appears likely the payments could and would be made as specified; moreover, payment was secured by a first mortgage on the mine property itself. There can be ho doubt that the fair market value of these obligations was susceptible of ascertainment in 1962. See Heller Trust v. Commissioner, 382 F.2d 675, 680-681 (9th Cir. 1967); Phillips v. Frank, 295 F.2d 629, 631-633 (9th Cir. 1961), and cases cited therein, Cf. United States v. Granello, 365 F.2d 990, 993 (2d Cir. 1966); Cowden v. Commissioner, 289 F.2d 20 (5th Cir. 1961).

Steen makes a further argument that once a transaction is deemed “open,” nothing which is to be paid thereunder is subject to recognition until it is actually paid. Again we disagree. Where a transaction is “open” because a part of the consideration has no ascertainable fair market value in the year of sale, any part having an ascertainable value is nevertheless taxable in that year. See Commissioner v. Carter, 170 F.2d 911 (2d Cir. 1948); cf. Gersten v. Commissioner, 267 F.2d 195, 198 (9th Cir. 1959). In other words, taxation of an “open” transaction is deferred only to the extent that consideration received by the seller consists of property having no ascertainable fair market value in the year of sale and then only because “the promise of future money payments wholly contingent upon facts and circumstances not possible to foretell with anything like fair certainty [is] ... in no proper sense equivalent to cash.” Burnet v. Logan, supra, 283 U.S. at 413, 51 S.Ct. at 552. Were the rule otherwise, a taxpayer could defer taxation on a substantial portion of the consideration involved in a large sale not qualifying under § 453 for “the special treatment reserved for what the Congress thought to be the more clearcut hardship cases,” see Tombari, supra, 299 F.2d at 891, by simply taking a relatively small portion of the consideration in the form of a highly contingent right to funds.

We hold that the two contracts of 1962 must be construed together and that the payment of $458,532.03 in 1966 was a capital gain received and reportable in 1966; that the transaction was an “open” and not a “closed” transaction and that the taxpayer may not claim the installment reporting method under 26 U.S.C. § 453, but his reporting must be made under 26 U.S.C. §§ 1001 and 1002. We hold further that the discounted value of the installments paid after 1962 should be ascertained as of 1962 and findings of fact on such value should be made by the referee, with the result that all the value of the downpayment in 1962 and the discounted installment payments received thereafter (except the contingency payment in 1966) be reported as capital gain in 1962.

In the instant case, the government presented evidence as to the 1962 discounted value of the installment obligations, but neither the referee in bankruptcy nor the district court made a finding of fact as to value. Accordingly, the case must be remanded for further findings, based on the evidence in the record and such additional evidence as the court may deem appropriate, and for recomputation of taxpayer’s liabilities for 1962 and subsequent tax years.

Vacated and remanded for further proceedings in accordance with the views expressed herein.

      . First Security Bank of Utah, N.A., as trustee under a trust for the benefit of four minor children of taxpayer, was one of the “sellers” in the Stock Purchase Agreement but was not a party to the Mining Agreement.

      . In Gralapp, the Tenth Circuit held impermissible a taxpayer’s election to report on the installment method sale proceeds received on a contract having an “open ended” selling price, unless the fair market value of the contingency is de minimis, because “it [is] impossible to determine the total contract price [at the time of the election] and therefore impossible to calculate the ratable portion of each payment which represent[s] gain under installment payments.” 458 F.2d at 1160. For elaboration of the implicit requirement of § 453 that the total contract price be known, see Emory, The Installment Method of Reporting Income: Its Election, Use, and Effect, 53 Cornell L.Rev. 181, 195-196 (1968).
      We concur in the Tenth Circuit’s rejection of the proposition that a taxpayer has “an absolute right to the privilege of installment reporting simply based on the fact that less than 30% of the minimum selling price is received during the first year and which must remain less than 30% if the open end contingency materializes.” 458 F.2d at 1160. Were a truly “open” transaction permitted installment treatment under § 453, a substantial and unreasonable administrative burden of frequent recomputations of tax liabilities for past years would thereby be imposed on the Commissioner.

      . On this finding, both the referee in bankruptcy and the district court concluded:
      “Debtor [taxpayer] realized long term capital gain on the sum of $458,532.03 received by him in 1966 from the Atlas Corporation.”

      . On appeal the government argues that, since taxpayer treated the sale of stock as having a $12,980,000 “total contract price” for purposes of his § 453 computations and since he made no reference in his 1962 return to the possibility of his receiving contingent additional consideration in subsequent years, he is estopped from contending that the right to the contingency payment was part of the consideration for the sale of stock. As a general rule, the government may indeed bind a taxpayer to the form in which he has factually cast a transaction. Maletis v. United States, 200 F.2d 97, 98 (9th Cir. 1952), cert. denied, 345 U.S. 924, 73 S.Ct. 782, 97 L.Ed. 1356 (1953). See also Brown v. United States, 427 F.2d 57, 62 (9th Cir. 1970); Redwing Carriers, Inc. v. Tomlinson, 399 F.2d 652, 659 n. 9 (5th Cir. 1968); Morse v. United States, 265 F.2d 788, 797 (9th Cir. 1959). The rule exists because to permit a taxpayer at will to challenge his own forms in favor of what he subsequently asserts to be true “substance” would encourage post-transactional tax-planning and unwarranted litigation on the part of many taxpayers and raise a monumental administrative burden and substantial problems of proof on the part of the government. In a case such as this one, where the documentary form of the transaction is ambiguous, the government’s assertion of the rule will normally render the taxpayer’s factual characterization of the transaction on his income tax return conclusive as against his conflicting and subjective testimony. But here the government failed properly to raise the argument below, and, where such an argument is not properly before the trier of fact, we ordinarily may not consider it. Helvering v. Salvage, 297 U.S. 106, 109, 56 S.Ct. 375, 80 L.Ed. 511 (1936); Commissioner v. Callner, 287 F.2d 642, 645 (7th Cir. 1961); Gaylord v. Commissioner, 153 F.2d 408, 416 (9th Cir. 1946).

      . Moreover, parol and other extrinsic evidence would presumably also be admissible to show that the true consideration for the sale of stock was other than that stated in the Stock Purchase Agreement. In Haverty Realty & Investment Co., 3 T.C. 161, 167 (1944), the Tax Court said:
      “ ‘ * * * the recitals of a written instrument as to the consideration received are not conclusive, and it is always competent to inquire into the consideration and show by parol or other extrinsic evidence what the real consideration was.’ Deutser v. Marlboro Shirt Co., (C.C.A., 4th Cir.), 81 Fed. (2d) 139, 142, citing many authorities.”

        Cf. Producers Livestock Loan Co. v. Idaho Livestock Auction, 230 F.2d 892, 894 — 895 (9th Cir. 1956).

      . The government’s argument that the contingency payment reflects compensation because one of the sellers of the stock, the bank (see note 1, supra), was not a party to the Mining Agreement and hence had no right to a share of the payment is unpersuasive, for the bank received treatment different from that accorded the other sellers in the Stock Purchase Agreement as well; in that latter document, the bank was not required to make personal guaranties as were the other sellers.

      . See Treas.Reg. § 1.1001-l(a) (1957); Treas. Reg. § 1.453-6(a)(2) (1958); and Rev.Rul. 58-402, 1958-2 Cum.Bull. 15. See, e.g., Clodfelter v. Commissioner, 426 F.2d 1391, 1395 (9th Cir. 1970), and cases cited therein; McCormac v. United States, 424 F.2d 607, 619, 191 Ct.Cl. 483 (1970); Slater v. Commissioner, 356 F.2d 668, 670 (10th Cir. 1966); Marsack’s Estate v. Commissioner, 288 F.2d 533, 535-536 (7th Cir. 1961); Chamberlin v. Commissioner, 286 F.2d 850, 852 (7th Cir. 1960).

      . Moreover, in view of the potential size of the contingency payment, we cannot say that the value of the right to the contingency was by any means de minimis as an element of actual sales price in 1962. Gralapp, supra, 458 F.2d at 1160; cf. Northern v. Nelson, 448 F.2d 1266, 1267 (9th Cir. 1971).

      . While the amount of the fair market value of property is a question of fact, whether value is ascertainable is reviewable question of law. See Rev.Rul. 58-402, 1958-2 Cum. Bull. 15, 16, and cases cited therein. Clodfelter v. Commissioner, 426 F.2d 1391, 1395 (9th Cir. 1970), is not to the contrary, for in that case we merely upheld a finding of the Tax Court as to the value of deferred installments.

      . In Carter, the taxpayer “received property having a fair market value exceeding by about $20,000 the cost basis of her stock, and she reported such excess as a capital gain in her 1942 [year of liquidation] return and paid the tax thereon.” 170 F.2d at 911.

      . Taxpayer derives no help from Int.Rev. Code of 1954, § 1001(d), 26 U.S.C. § 1001(d), which provides:
      “(d) Installment Sales. — Nothing in this section shall be construed to prevent (in the case of property sold under contract providing for payment in installments) the taxation of that portion of any installment payment representing gain or profit in the year in which such payment is received.”

        As the Supreme Court observed in Commissioner v. South Texas Lumber Co., supra, 333 U.S. at 506, 68 S.Ct. at 701:
      “[t]his [section] means that where a taxpayer has validly reported its income from installment sales on the installment basis provided by § 44 [presently § 453], that section, not §§ 111, 112, and 113 [presently §§ 1001, 1002, 1011, and 1012], prescribes the extent to which receipts from such sales are ‘recognized’ as taxable and the year in which such receipts are ‘recognized’ in computing taxable income.”


author: PER CURIAM.

text:
    Craig Martin OXENDINE, and all other inmates similarly situated at the Caswell County Unit of the North Carolina Department of Correction, Appellant, v. George R. WILLIAMS, Individually and in his official capacity as Superintendent of the Caswell County Subsidiary Unit of the North Carolina Department of Correction, Appellee.
    No. 74-1687.
    United States Court of Appeals, Fourth Circuit.
    Submitted Jan. 21, 1974.
    Decided Feb. 12, 1975.

      Craig Martin Oxendine, pro se.
    Jacob L. Safron, Asst. Atty. Gen., for the State of North Carolina.
    Before BUTZNER, RUSSELL and FIELD, Circuit Judges.
   PER CURIAM.

Seeking injunctive relief and damages for alleged deprivation of constitutional rights, Craig M. Oxendine brought this pro se class action under 42 U.S.C. § 1983 for himself and all other inmates of the Caswell County Unit of the North Carolina Department of Correction. He alleged five constitutional violations: (1) inmates are denied adequate medical treatment; (2) living conditions are so crowded and unsanitary as to constitute a threat to their health; (3) inmates are denied sufficient clean clothing; (4) inmates are denied reasonable access to the courts; and (5) inmates are not allowed physical contact with their families. After considering affidavits submitted by both parties, the district court granted summary judgment for the defendant against Oxendine and the class consisting of “all inmates incarcerated at the Caswell County Unit.”

Oxendine’s request for an injunction against prison policies that affect all inmates places this class action under Fed.R.Civ.P. 23(b)(2). See Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir. 1971); 7A Wright & Miller, Federal Practice and Procedure § 1775, at 19 — 22. A judgment against him may prevent the other inmates from later raising the same claims. Fed.R.Civ.P. 23(c)(2). It follows that unless he can “fairly and adequately protect the interest of the class,” he may not represent it. Fed.R.Civ.P. 23(a)(4); see 7 Wright & Miller, Federal Practice and Procedure § 1765, at 617 — 22. Ability to protect the interests of the class depends in part on the quality of counsel, Gonzales v. Cassidy, 474 F.2d 67 (5th Cir. 1973), and we consider the competence of a layman representing himself to be clearly too limited to allow him to risk the rights of others. Cf. Anderson v. Moorer, 372 F.2d 747, 751 n. 5 (5th Cir. 1967). Neither Oxendine nor any other prisoner has assigned error to the class aspect of this case, but it is plain error to permit this imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a class action. Cf. Ferrara v. Sheraton McAlpin Corp., 311 F.2d 294, 297 (2d Cir. 1962).

We may deal with four of Oxendine’s individual claims briefly. The prison’s medical records show that he has received treatment from the prison doctor within a reasonable time of his requests. See Cates v. Ciccone, 422 F.2d 926 (8th Cir. 1970); Blanks v. Cunningham, 409 F.2d 220 (4th Cir. 1969). The affidavits show that the prison living conditions, though less than ideal, do not constitute cruel and unusual punishment. See Landman v. Peyton, 370 F.2d 135 (4th Cir. 1966). No evidence was presented that incoming or outgoing legal mail was read or censored. Finally, Oxendine has no constitutional right to physical contact with his family. Oxendine’s contention that he was denied access to the courts must be heard on the merits. He has supported by affidavit his claim that legal materials were confiscated from prisoners and that writing supplies were not available. The superintendent, however, stated that inmates are allowed to use the materials they have for writing and are provided with implements and paper for that purpose. There is, then, a genuine issue of material fact on these points. Viewed most favorably to Oxendine, see Jobson v. Henne, 355 F.2d 129 (2d Cir. 1966), the records show the possibility of unreasonable interference with access to the courts. Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970), aff’d sub nom. Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971); see Landman v. Brown, 350 F.Supp. 303, 306 (E.D.Va. 1972).

Accordingly, the judgment against the class is vacated. The judgment against Oxendine is affirmed with respect to medical care, living conditions, laundry, censorship of mail, and access to his family, but it is vacated and remanded for a hearing on the merits of his claim that he was denied the use of legal and writing materials.

i

       The record does not show whether the other inmates of the unit received notice of the suit. It is disputed whether the parties to a Rule 23(b)(2) class action are bound by an adverse judgment in the absence of notice. Although Fed.R.Civ.P. 23(c)(3) provides that they are, it has been suggested that this would be a denial of due process. Compare Schrader v. Selective Service System Local Board No. 76 of Wisconsin, 470 F.2d 73 (7th Cir. 1972), with Gonzales v. Cassidy, 474 F.2d 67, 74 (5th Cir. 1973). See generally 3B Moore, Federal Practice j] 23.72; 7A Wright & Miller, Federal Practice and Procedure §§ 1789, 1793.


author: BRYAN, Cireuit Judge

text:
    CENTRAL FLORIDA LUMBER CO. v. TAYLOR-MOORE SYNDICATE, Inc., et al.
    No. 6134.
    Circuit Court of Appeals, Fifth Circuit.
    July 6, 1931.
    Rehearing Denied Aug. 7, 1931.

      W. H. Baker, Geo. L. Rutherford, and Martin Sack, all of Jacksonville, Fla. (Baker, Baker & Rutherford, of Jacksonville, Fla., on the brief), for appellant.
    N. B. K. Pettingill and Cody Fowler, both of Tampa, Fla. (Macfarlane, Pettingill, Maefarlane & Fowler, of Tampa, Fla., on the brief), for appellees.
    Before BRYAN, FOSTER, and SIB-LEY, Cireuit Judges.
   BRYAN, Cireuit Judge

(after stating the facts as above).

There was a misjoinder of parties. The Leach Syndicate was interested only in the recovery of $25,000 which it paid for the original option for thirty days. The assignee syndicates claimed $75,000 upon the subsequent payments, and an additional sum as attorney’s fee. The three syndicates did not have a claim in common to the amount sued for. But it may be assumed that the misjoinder would not be fatal if the suit had been of such nature as to confer jurisdiction in equity. United States v. American Bell Telephone Co., 128 U. S. 315, 352, 9 S. Ct. 90, 32 L. Ed. 450. A bill of complaint which states a cause of action either at law or in equity is no longer subject to be dismissed on motion under Equity Rule 29 (28 USCA § 723); if it fail to state a cause of action in equity, but does state one at law, it should be transferred to the law side of the docket under Equity Rule 22 (28 USCA § 723), and 28 USCA § 397. Twist v. Prairie Oil Co., 274 U. S. 684, 47 S. Ct. 755, 71 L. Ed. 1297; Pierce v. National Bank of Commerce (C. C. A.) 268 F. 487. The averments of the bill, to the effect that appellant intended its representations to be relied on by the Leach Syndicate and its assignees, stated a cause of action at law. 12 R. C. L. 326. And so the motion to dismiss was properly denied.

Appellees contend that appellant, by failing to move to transfer the ease to the law side of the docket, waived any right it may have had to insist upon a common-law trial. It is doubtless true that appellant, after its motion to dismiss was denied, should have moved that such transfer be made; nevertheless the court was not taken unawares, but must have understood that the right to proceed in equity was being challenged. Although a defendant may waive his right to have a case tried at law by failing to move

to transfer it, yet if there be no jurisdiction in equity it is the duty of the trial court to order the transfer of its own motion. Brown, Bonnell & Co. v. Lake Superior Iron Co., 134 U. S. 530, 536, 10 S. Ct. 604) 33 L. Ed. 1021; Southern Pacific R. R. Co. v. United States (No. 1), 200 U. S. 341, 26 S. Ct. 296, 50 L. Ed. 507; Pusey & Jones Co. v. Hanssen, 261 U. S. 491, 43 S. Ct. 454, 67 L. Ed. 763.

We are of opinion that the bill failed to state a ease over which an equity court could have exercised even concurrent jurisdiction. It has long been provided that suits in equity shall not be sustained where a plain, adequate and complete remedy may be had at law. 28 USCA § 384. In Whitehead v. Shattuck, 138 U. S. 146, 11 S. Ct. 276, 277, 34 L. Ed. 873, it is said that, “where an action is simply for the recovery * * * of a money judgment, the action is one at law.” There was no need to cancel the contract between the parties, as it could not possibly stand in the way of the recovery of a money judgment. There were no rights under that contract which appellant threatened or had the power to assert. Upon the failure of appellees to pay the first installment of the purchase price, the only right which appellant had left was to retain the money which it had received “as the price or consideration for tying up said lands under this option.” Appellant had no right, and had not threatened or attempted, to compel specific performance or to sue for damages. A common-law action of deceit, or for money had and received, would have afforded a remedy as complete as was or could have been' obtained in this equity suit. A charge of fraud or false representation will not give a court of equity jurisdiction where complete relief on that ground can be obtained in a court of law. See Adams v. Jones (C. C. A.) 11 F.(2d) 759, and authorities there cited, including the leading case of Buzard v. Houston, 119 U. S. 347, 7 S. Ct. 249, 30 L. Ed. 451.

The decree is reversed, and the cause remanded with direction to transfer it to the law side of the docket.


author: HUTCHESON, Circuit Judge.

text:
    MUTUAL LIFE INS. CO. OF NEW YORK v. SARGENT.
    No. 6074.
    Circuit Court of Appeals, Fifth Circuit
    July 9, 1931.
    Rehearing Denied Aug. 5, 1931.
    Douglas Arant, of Birmingham, Ala. (William M. Neal, of Birmingham, Ala., Frederick L. Allen, of New York City, and Bradley Baldwin, All So White, of Birmingham, Ala., on the brief), for appellant.
    W. H. Mitchell, of Florence, Ala., and A. N. Carmichael, of Tuscumbia, Ala., for appellee.
    Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
   HUTCHESON, Circuit Judge.

This appeal is from a verdict and judgment in favor of appellee, plaintiff below, in a suit upon a policy providing double indemnity for death effected solely through external, violent, and accidental means.

At the close of the evidence, appellant, defendant below, moved for an instructed verdict on the ground that the evidence did not permit of any other conclusion than that, though deceased came to his' death through external and violent means, yet the death was not an accidental one because induced by the voluntary actions of deceased when he knew or ought to have known that his death would reasonably result.

Only one error is assigned, the action of the court in not taking the ease from the jury. The charge of the court is not brought up in the record, and it is conceded that if the ease was one for the jury, the court correctly and fairly submitted the issues.

Appellee invokes the rule.that “the jury must determine the fact as to what caused the death. There need not necessarily be direct proof or evidence of the cause. The cause may be found by the jury from faets and circumstances.” Laessig v. Travelers’ Protective Ass’n, 169 Mo. 272, 69 S. W. 469, 471.

That if an occurrence is as to the ^ insured “unforeseen, unexpected and unusual, not taking place according to the usual course of things and therefore accidental in the usual, natural and popular meaning of the word,” it is an accident. Strother v. Accident Ass’n, 193 Mo. App. 718, 188 S. W. 314; Nerrow v. Pacific Mutual Life Ins. Co. (Mo. App.) 294 S. W. 97, 99; Laessig v. Travelers’ Protective Ass’n, 169 Mo. 272, 69 S. W. 469.

He insists that this is pre-eminently a fact case for the jury. That before such a policy may be, as a matter of law, defeated, the chain of consequences must be more clearly and tightly drawn between an inexcusable act on the part of the insured and the fatal result than the record in this case draws it. That whether the deceased should have reasonably expected the result which followed his remaining at or returning to the place of the attack upon him was for the jury, and that an instruction for the defendant would have been as unreasonable as one for the plaintiff.

That appellee’s position is the correct one we think a brief review of the record, in the light of the applicable law, will show.

' The law of the case presents little difficulty, and may be stated in terms of established propositions.

That death is none the less accidental, within the terms of a policy like the one in suit, because of the fact that it results from the intentional act of another, if the insured is innocent of aggression or wrongdoing, or even if he is the aggressor, if he could not reasonably anticipate bodily injury resulting in death to himself at the hands of another. Occidental Life Ins. Co. v. Holcomb (C. C. A.) 10 F.(2d) 125, 126.

It is equally well settled that the fact that a citizen in going about the business of his life in the performance of his duties or obligations subjects himself to or meets when it is pressed upon him a hazard or danger, with conscious knowledge of such danger, does not prevent a finding that his death was accidental. Myrtle B. Sackett v. Masonic Protective Ass’n, 106 Neb. 238, 183 N. W. 101, 17 A. L. R. 188 and note; Interstate Business Men’s Acc. Ass’n v. Lester (C. C. A.) 257 F. 225; Employers’ Indemnity Corp. v. Grant (C. C. A.) 271 F. 136, 20 A. L. R. 1118 and note; Travelers’ Ins. Co. v. Dupree, 17 Ala. App. 131, 82 So. 579.

“If the party does something which culpably provokes or induces the act causing his injury or death, then the result is not .accidental; but, if he is wholly free from culpability himself, the result is accidental as to him.” Interstate Business Men’s Acc. Ass’n v. Lester (C. C. A.) 257 F. 225, 230; Occidental Life Insurance Co. v. Holcomb, supra.

Upon the matter of proof it is the law, though there are one or two authorities contra [New York Life Ins. Co. v. Ollich (C. C. A.) 42 F.(2d) 399, 401], that while the burr den is upon plaintiff in cases of this kind to prove death resulting from external, violent and accidental means, proof without more that insured was killed by another raises the presumption that death was accidental, and makes out a prima facie ease in the absence of evidence to the contrary. Smith v. New York Life Ins. Co. (C. C. A.) 31 F.(2d) 281; Nerrow v. Pacific Mutual Life Ins. Co. (Mo. App.) 294 S. W. 97, 99; Withers v. Pacific Mutual Life Ins. Co., 58 Mont. 485, 193 P. 566; Aetna Life Ins. Co. v. Rustin, 151 Ky. 103, 151 S. W. 366; Jones v. U. S. Mutual Acc. Ass’n, 92 Iowa, 652, 61 N. W. 485; Aetna Life Ins. Co. v. Little, 146 Ark. 70, 225 S. W. 298.

If, however, defendant makes proof that the death occurred as the result of an affray or an encounter, then it is incumbent upon the deceased to take the initiative again and show by other evidence that the death was accidental. Smith v. New York Life Ins. Co. (C. C. A.) 31 F.(2d) 281. And this can be accomplished by showing that the insured was not the aggressor or if he was the aggressor, that he could not in the circumstances reasonably have anticipated that he would be killed. Smith v. New York Life Ins. Co., supra; Occidental Life Ins. Co. v. Holcomb (C. C. A.) 10 F.(2d) 125. In each case if there is any issue of fact as to how the matter occurred, and as to what ought( to have reasonably been expected as likely to ensue, the matter is for the jury. Smith v. New York Life Ins. Co., supra; Employers’ Indemnity Corp. v. Grant (C. C. A.) 271 F. 136; Aetna Life Ins. Co. v. Gallaway (C. C. A.) 45 F.(2d) 391; Nerrow v. Pacific Mutual Life Ins. Co. (Mo. App.) 294 S. W. 97, 99.

{7] It is trae enough that the rule, though not universal, is well established in the federal ■courts, and in some state courts, that the uncontradieted testimony of a witness not impeached or discredited in any way, to a plain and simple fact capable of contradiction if untrue, does not,raise an issue of fact to be submitted to a jury. Thomas v. Hawthorne (Tex. Civ. App.) 245 S. W. 973; Chesapeake & O. Ry. Co. v. Martin, 283 U. S. 209, 51 S. Ct. 453, 75 L. Ed. 983; Still v. Stevens (Tex. Civ. App.) 13 S.W.(2d) 956.

It is also true, however, that where there are faets and circumstances or the testimony of witnesses which furnish contradiction, or where, as here, the testimony cannot be controverted because it relates to statements by or transactions with a deeedent, whose lips are sealed by death, it is for the jury to judge the truth of the testimony, and to say whether the statements attributed to the deceased were in fact made by him. Aetna Life Ins. Co. v. Callaway (C. C. A.) 45 F.(2d) 391; Casualty Reciprocal Ex. v. Parker (Tex. Com. App.) 12 S.W.(2d) 536; Smith v. Mutual Life Ins. Co. (C. C. A.) 31 F.(2d) 280; Note Kelly v. Jones, 8 A. L. R. 792.

Coming to the record in the ease, it therefrom appears that on plaintiff’s side there is testimony of an insulting, abusive, and threatening attack, wholly unprovoked, made upon Beck, the insured, by the man who killed him. That at that time the insured and his companion, Mrs. Thurman, to whom he' was engaged to be married, were in the act of assisting Tapp, the slayer, to get his ear out of the ditch in which it was overturned. That as the result of the encounter between Tapp and Beck, in which Tapp wildly flourished his pistol and scattered the crowd, everybody went away from the place except Tapp and his companion, Mrs. Thurman who was in the ear, Beck, and Nix, on whose testimony appellant mainly relies. Nix testified in substance that after having been attacked the insured came to him complaining of Tapp’s treatment of him, saying, “I ought to shoot him.” That to his advice to let Tapp alone, Beck replied, “I am going up there and ■shoot him down,” and jerking his pistol from his overcoat pocket, he started in the direction of Tapp, who was a short distance away at the ear; that he (Nix) walked over to the commissary and spoke to his daughter, stopped, and the shooting began. That he heard pistol shots but saw none.

Against'this version of the shooting, Mrs. Thurman testified that after she had gotten the car out of the ditch and started towards her home, as she passed by Tapp he said to her, referring to the insured, “Old man Beek put chunks in the road to ditch me,” and that upon her remonstrating, “He did not do it; you owe him an apology for talking that way,” Tapp raised his pistol, pointed it in the general direction of Beck and herself, and fired at Beel|. That during the shooting Tapp killed Beck, shot her, and fired at Weaver, his companion.

She also testified that when she tried to assist Beck, Tapp said: “Don’t turn the damned * * * over; if you do I will shoot him in the back.” During the shooting, Beck shot Tapp twice. During these occurrences Tapp was acting under the influence of liquor.

Upon this testimony the jury concluded, as it had a right to do, that Tapp, drunken and- dangerous, incensed because of his fancied grievance at Beek for putting chunks in the road, was moved to the killing by Mrs. Thurman’s just and bold resentment of his meanness, and that drank and irresponsible, he did just as Mrs. Thurman said he did, commenced the firing, Beck shooting only in self-defense and to protect himself and Mrs. Thurman. For while it is true that Nix’ testimony as to the statements made by Beck were not directly contradicted, they could not'have been for Beck was dead, and no one else, according to Nix, was present. Besides, the statement of Mrs. Thurman as to how the matter occurred contradicted Nix just as he was contradicted on many other points of the record, as to what was said and done. The jury had before them the fact of Nix’ aetive interest in defending Tapp from the murder charge, voluntarily taking measurements and preparing himself to testify, the inherent improbability of the statement that Beck, having Mrs. Thurman under his protection, would have deliberately exposed her to the risk of a pistol duel, and the numerous contradictions between Nix’ testimony and that of other witnesses as to what was said and done at the first encounter. Nix alone, of all the witnesses, testified that Tapp did not curse and abuse Beek, that Beck was himself angry, and that Beck ordered Mrs. Thurman out of the car, on which latter point he was flatly contradicted by Mrs. Thurman and corroborated by no one.

All of these matters were for the jury in weighing the evidence and determining what actually transpired. In this case not only what men did and said, but the motives which prompted them, the springs from whieh their speech and action flowed, were in question. In such a case what men did, and what reasonable men would have expected to flow from what they did, is for the jury, and it would have been, as appellee said, as reasonable, but not more reasonable, for the court to have instructed a verdict for plaintiff because of the inexcusable aggressiveness of Tapp, as for it to have instructed a verdict for defendant merely because Beek stayed at, or returned to, the place of the first encounter, and returned the fire of Tapp when Tapp attacked both him and his companion.

Finding the record without error, the judgment of the court below is affirmed.


author: DENISON, Circuit Judge.

text:
    LEININGER v. COMMISSIONER OF INTERNAL REVENUE.
    No. 5726.
    Circuit Court of Appeals, Sixth Circuit
    July 2, 1931.
    I. N. Loeser, of Cleveland, Ohio (Mooney, Hahn, Loeser, Keough & Beam, of Cleveland, Ohio, on the brief), for petitioner.
    M. K. Rothschild, of Washington, D. C. (G. A. Youngquist, Asst. Atty. Gen., and J. Louis Monarch, J. P. Jackson, C. M. Charest, and Joe S. Franklin, all of Washington, D. C., on the brief), for respondent.
    Before DENISON and HICKENLOOPER, Circuit Judges, and SIMONS, District Judge.
   DENISON, Circuit Judge.

The taxpayer petitioner was a partner, owning a half interest in the Eagle Laundry Company, an Ohio partnership. In 1920, a written agreement was made between the taxpayer and his wife, which was confirmatory of a previous oral agreement and which declared that his wife had been and was a full equal partner with him in the interest of the Eagle Laundry Company, entitled to share equally in the profits and obligated to bear equally the losses. For the years 1920 to 1923, inclusive, the commissioner included in the petitioner’s taxable income the entire profits of the half interest in this company. Petitioner claims that half of these profits should have been included in the income of the wife. The commissioner ruled against the taxpayer and upon appeal the board affirmed.

■' We think it quite unnecessary to decide the question chiefly considered by the board —whether the wife.became a partner in the laundry company, with the rights and liabilities of. such a partner under the Ohio laws. In any .event, she , clearly owned half of the profits which, if she was not a partner, would go primarily to him. If, at the moment of receiving her profits, he took the legal title thereto as between the partnership and himself, she was at least at that same moment the' equitable owner. She could have compelled him to pay her immediately, and he could have compelled her to pay him half of any losses. If any trouble had arisen, she could have prevented the payment of profits to‘him until her half interest therein was protected. It seems entirely clear to us that her share of the profits never became income received by the taxpayer.

In making the contrary holding, the board relied upon Mitchel v. Bowers (C. C. A. 2) 15 F.(2d) 287. That case is fully distinguished from the present one, because the majority decision is rested upon the fact that the husband could cancel the arrangement at any time, and that, since the right of disposition remained his, as it does in community property, the same rule should be applied. If, however, the Mitehel Case were not distinguishable, we should feel constrained to follow the reasoning of Judge Manton’s dissenting opinion. The elaboration of the ruling, found in Harris v. Commissioner (C. C. A.) 39 F.(2d) 546, 547, rests upon the supposed policy of the law in taxing partnerships. We do not see that section 218 (a) of Revenue Act 1918 (40 Stat. 1070), undertakes to fix any policy as to who is to be deemed to receive the income; it merely extends the definition of individual income so as to include undivided partnership profits. Lucas v. Earl, 281 U. S. 111, 50 S. Ct. 241, 74 L. Ed. 731, also relied upon, must be read in view of the comment thereon in Poe v. Seaborn, 282 U. S. 101, 117, 51 S. Ct. 58, 75 L. Ed. 239.

We cannot regard this contract as a mere assignment of an interest in future profits, “if, as and when” received. It creates mutual rights and liabilities; it is irrevocable; it creates, at least as between the parties, a vested interest in a property right; and the specified profits and losses were hers, not his.

In aceord with our view, see Commissioner v. Barnes (C. C. A. 3) 30 F.(2d) 289; dissenting opinions in Battleson v. Commissioner, 22 B. T. A. 455.

The order of the board is reversed, and the ease remanded for a reeomputation in aer cordanee herewith.


author: HICKS, Circuit Judge.

text:
    DUDLEY et al. v. PRESTON MOTOR CO. et al.
    No. 5714.
    Circuit Court of Appeals, Sixth Circuit.
    June 30, 1931.

      J. N. Hardin, of Greeneville, Tenn., and H. E. Porterfield, of Bluefield, W. Va. (Russell S. Ritz, of Bluefield, W. Ya., and Swingle & Hardin, of Greeneville, Tenn., on the brief), for appellant.
    A. B. Bowman, of Johnson City, Tenn. (Sells, Simmonds & Bowman, of Johnson City, Tenn., on the brief), for appellees. •
    Before DENISON, MOORMAN, and HICKS, Circuit Judges.
   HICKS, Circuit Judge.

Appellant, P. I. Dudley, both in his individual capacity and as next friend of his minor son, Ward, brought, suit against Preston AÍotor Company, a corporation, and E. B. Roberts for damages caused by a collision of two automobiles, one driven by appellant in which his son was riding and the other driven by Roberts. The damages sought were for injuries to, and medical expenses incurred for, young Dudley and for injuries to appellant himself and to his ear.

The suit proceeded against Preston Motor Company upon the theory that Roberts was its agent; that his negligent operation of the car caused the accident and the resultant damage, and was within the scope of his employment. At the close of the evidence, appellant took a nonsuit as to Roberts, and upon motion of appellee the court directed a verdict in its favor. There was substantial evidence of damages proximately caused by the negligence of Roberts in the operation of the car he was driving. Appellee, a dealer in automobiles, had its place of business at Johnson City, Tenn. Roberts was its bookkeeper. Appellant’s insistence is that Roberts was not only a bookkeeper but a salesman as well, and that at the time of the collision he was en route to Bristol, Tenn., where he was to stop upon business with another establishment of appellee there, and thence drive to the home of his father and mother at Abingdon, Va., where he was to negotiate a sale of a ear with one Keller who boarded with his father and mother.

In making up the issues, appellee had filed and had later withdrawn a plea in which it stated: “And now comes defendant Preston Motor Company and for pleas to the declaration set out against it in this case, say” (among other things) “that at the timó of the alleged accident the said Roberts was generally speaking in the employ of the defendant Preston Motor Company as an automobile salesman and bookkeeper.”

In support of his contention appellant inr troduced the above-quoted portion of tids plea in evidence. We do not regard this matter as of particular significance. The record shows that ,tkis excerpt was taken bodily from the plea. Assuming its truth, it carries no inference that under his contract of employment Roberts was required ór expected, to travel on Sunday or to negotiate' sales other than at appellee’s place of business, and yet the aceident happened on Sunday about 14 miles from Johnson City upon the highway funning from Johnson City through. Bristol tó Abingdon.

In support of his insistence, appellant, testified that upon the day following the aceident Roberts stated in the presence of Preston, president and manager, and Kirkpatrick, secretary and treasurer, of appellee, that at the time of the collision he was going to Bristol, that he intended to stop a short time there on business with appellee’s Bristol office, and then go to Abingdon to close a trade for a car with Keller, who boarded with Roberts’ father and mother, -and that neither Kirkpatrick nor Preston said anything in response. Preston, Kirkpatrick, and Roberts each deny that Roberts made such statement,, but upon the motion for a directed verdict it must be taken as true that he did make it. However, we think that a properly instructed jury could attach but little, if any, weight to it. It was, of course, introduced upon the theory that a failure of appellee’s officers to deny it was an implied admission of its truth,. but this result does not neeessarily follow. It does not clearly appear that at the time this statement was made appellee was being charged by appellant with wrongdoing, and it is only by indirection that this statement of Roberts could impute any admission of its truth by appellee. It took place in a conversation between appellant and Roberts, and was not made directly to appellee’s- officers or agents. In fact, appellee had no place of business at Bristol. Preston individually owned a business there styled “Preston Auto ■Sales Company.” What we regard as the ■controlling and substantial evidence is that Roberts’ duties were those of a bookkeeper and in connection therewith he did general office work; that, in the absence of a salesman, he would show cars to prospective purchasers and quote prices until a salesman came in; that appellee did not work on Sunday or keep its place open for business or trade on Sunday; that Roberts’ employment did not include work on Sunday; that he had never sold a ear for appellee nor had he received any commissions upon a sale; that he had not been sent upon any mission for ap-pellee either on the date of the accident or previously, and that neither Preston nor Kirkpatrick knew of his whereabouts on that date; that Roberts’ custom was to make semimonthly week-end visits to his home in Ab-ingdon, where his father and mother lived, and that on the day of the collision he left Johnson City about noon in company with a friend who also lived at Abingdon; that the car he was driving belonged to him; that its license plates were registered in his own name; and that, while it was not then fully paid for, he had completed his payments before the trial of the case. Roberts states that he had no intention of seeing -any prospective purchaser of ears upon this journey; that mpon a few other occasions he would speak to prospective purchasers around Abingdon, -or they would speak to him, and, if they were : interested, he would as a matter of loyalty to •Preston turn them over to Carr, agent of the Preston Auto Sales Company at Bristol, •which business was owned entirely by Pres-ión.

Appellant testified that in a conversation in the office of appellee touching the accident Kirkpatrick inquired who would repair their (referring to' appellee) car, and that Preston replied that, if it was repaired, they (referring to appellee) would have to repair it. The contention is that this testimony tended to show that appellee was the owner of the car causing the accident, but the ownership of the ear is not controlling. If Roberts was authorized to travel on Sunday in the course of appellee’s business, it might be said that he was impliedly authorized to use a ear, and whether it should belong to on.e party or the other is not determinative, but, if Roberts was driving for his own personal purposes and convenience, the ownership of the ear is immaterial.

Considering the evidence in its most favorable light for appellant, we conclude that it does not substantially show that at the time of the accident Roberts was engaged in any business for appellee or that appellee had either expressly or impliedly authorized him to use the automobile upon that occasion. We think that he was upon a trip entirely personal to himself, and that there is no substantial relevant evidence to the contrary, and the judgment therefore should be affirmed. See Small Co. v. Lamborn & Co., 267 U. S. 248, 254, 45 S. Ct. 300, 69 L. Ed. 597; American Oil Co. v. Frederick, 47 F.(2d) 54, 57 (C. C. A. 6).

Appellant testified that at the time of the accident, and after his son had been taken out of the wrecked car, Roberts made the statement to him which he repeated the succeeding day in the presence of Preston and Kirkpatrick as above indicated. This testimony was offered as a part of the res gestee, and its introduction was denied. We think there was no error.in its denial. It threw no light upon the cause of the collision. The manifest purpose of appellant in.the introduction of it was to use this declaration of Roberts as evidence of his agency, for which purpose it was, of course, incompetent.

Judgment affirmed.