author: CELEBREZZE, Circuit Judge.

text:
    Sharon HAGEMAN, Admx. of the Estate of Donald Hageman, Plaintiff-Appellee, v. SIGNAL L. P. GAS, INC., Defendant-Appellant.
    No. 73-1110.
    United States Court of Appeals, Sixth Circuit.
    Argued June 13, 1973.
    Decided Oct. 31, 1973.

      Frank Seth Hurd, Weston, Hurd, Fal-lon, Sullivan & Paisley, Cleveland, Ohio, on brief, for defendant-appellant.
    Edward M. Swartz, Boston, Mass., James A. Hutton, Bryan, Ohio, on brief, for plaintiff-appellee. ,
    Before WEICK, CELEBREZZE and MILLER, Circuit Judges.
   CELEBREZZE, Circuit Judge.

Plaintiff-appellee was awarded damages by a jury in the amount of $532,832.02 for the death of her husband, Donald Hageman. The decedent suffered severe burns on June 20, 1967 as a result of an explosion of liquified petroleum gas which had passed unburned through a defective hot water heater. He died five and one-half hours later. At the time of his death he was 26 years old and the father of four children; he was an auto mechanic and operated his own trash route. Appellant Signal was the supplier of the gas to the Hagemans. The original complaint alleged damages arising from the wrongful death of decedent. The complaint was subsequently amended to include an allegation of damages for five and one-half hours of conscious pain and suffering in the amount of $225,000. The Rheem Manufacturing Company, a co-defendant and the manufacturer of the hot water heater in the Hageman’s home settled, during the course of the trial, Appellee’s claim for $350,000. This amount was allocated to the conscious pain and suffering. At the same time, the claim for the wrongful death was dismissed against Rheem and the claim for pain and suffering was dismissed against Appellant Signal. The trial proceeded to a verdict and judgment against Signal for the wrongful death claim.

Appellant first contends that its motion for a directed verdict should have been granted by the District Court. Appellant’s argument on this question is unpersuasive. In its motion for a directed verdict, Appellant did not state the specific grounds for its request as required by Rule 50(a) of the Federal Rules of Civil Procedure. We must consider the motion, then, as a general motion for a verdict in Appellant’s favor. Rochester Civic Theatre, Inc. v. Ramsay, 368 F.2d 748, 752 (8th Cir. 1966). Our review of the record reveals more than sufficient evidence to send the question of Appellant’s negligence to the jury. We will, however, briefly touch on one or two of Appellant's arguments. It is contended that since Appellant had complied with the Ohio statute dealing with the amount of odorant to be applied to liquified petroleum gas, it could not have been negligent as a matter of law. However, Ohio adheres to the rule that compliance with a statute does not preclude a finding of negligence by the jury. Variety Iron & Steel Works Co. v. Poak, 89 Ohio St. 297, 106 N.E. 24 (1914). Appellant also contends that it conducted the customary sniff test to determine if the odorant was present. On this question, the rule in Ohio is that conformity to customary methods or conduct is not conclusive on the question of negligence but is a circumstance to be weighed with other factors. Thompson v. Ohio Fuel Gas Co., 9 Ohio St.2d 116, 224 N.E.2d 131 (1967). As we have previously held, industry standards are not binding on the issue of negligence. Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217, 222 (6th Cir. 1969). Other arguments are raised by Appellant to support its contention that a directed verdict should have been granted, but we find them lacking in merit as they involve questions properly submitted to the jury.

Signal also contends that it was improper for the District Court to permit the plaintiff to amend its complaint to include the allegation of conscious pain and suffering for the reason that the cause of action for pain and suffering was barred by Ohio’s two-year statute of limitations, Ohio Rev.Code § 2305.10. At the time Appellee amended its complaint, more than three years had elapsed after the statute of limitations had expired. Under Rule 15(c) of the Federal Rules of Civil Procedure, “[w]henever the claim . . . asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” Rule 15(a) provides that “leave [to amend] shall be freely given when justice so requires.” Thus, it would appear that the amendment was properly permitted by the District Court.

It is argued, however, that the amendment related to a new cause of action and included new legal theories of recovery and did not, therefore, come within Rule 15. Under Ohio law, an action for pain and suffering is a cause of action separate and distinct from a wrongful death action. Klema v. St. Elizabeth’s Hospital of Youngstown, 170 Ohio St. 519, 166 N.E.2d 765 (1960); Karr v. Sixt, 146 Ohio St. 527, 67 N.E. 2d 331 (1946). In Klema, supra, the Ohio Supreme Court said;

“Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person, and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries, and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong but a single recovery for a double wrong.” 170 Ohio St. at 521, 166 N.E.2d at 768, quoting St. Louis, Iron Mountain & Southern R. R. v. Craft, 237 U.S. 648, 658, 35 S. Ct. 704, 59 L.Ed. 1160 (1915).

Some courts have held that an amendment setting up a new cause of action will not relate back to the date of the original complaint, but will be governed by its own date. Standard Oil Company of California v. Perkins, 396 F.2d 809, 814 (9th Cir. 1968), reversed on other grounds, 395 U.S. 642, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969), rehearing denied, 396 U.S. 871, 90 S.Ct. 36, 24 L. Ed.2d 126 (1969); Commissioner of Internal Revenue v. Rieck, 104 F.2d 294 (3d Cir. 1939), cert, denied, 308 U.S. 602, 60 S.Ct. 138, 84 L.Ed. 504 (1939). We have previously held that an amendment adding another party is a new cause of action which cannot be added after the time limitation has expired. United States v. Western Casualty & Surety Co., 359 F.2d 521 (6th Cir. 1966). But where the parties are the same, we think the better rule is that an amendment which adds another claim arising out of the same transaction or occurrence does relate back to the date of the original complaint. See Bufalino v. Michigan Bell Telephone Co., 404 F.2d 1023, 1028 (6th Cir. 1968), cert, denied, 394 U.S. 987, 89 S.Ct. 1468, 22 L.Ed.2d 763 (1969); Martin v. Virgin Islands National Bank, 455 F.2d 985 (3rd Cir. 1972); Woods Exploration & Producing Co. v. Aluminum Company of America, 438 F.2d 1286, 1299 (5th Cir. 1971), cert, denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); Scalise v. Beech Aircraft Corp., 47 F.R.D. 148 (D.Del. 1969); 3 Moore’s Federal Practice, Section 15.15 [3] at n. 9. We believe that the amendment was properly permitted by the District Court. The original complaint alleged that the decedent’s death resulted from a failure to adequately odorize the gas and to warn decedent of the proper safety precautions to betaken with respect to the gas. The amended complaint alleged additionally that the violation of state and federal statutes and the furnishing of gas for a defective hot water heater caused decedent’s death and pain and suffering prior to death. The claims in the amended complaint arose out of the same occurrence set forth in the original complaint — the explosion which occurred in the decedent’s basement. Several elements may be considered in determining whether to permit an amendment. Undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment are all factors which may affect the decision. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Delay by itself is not sufficient reason to deny a motion to amend. Middle Atlantic Utilities Co. v. S. M. W. Development Corp., 392 F.2d 380 (2d Cir. 1968). Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted. Williams v. United States, 405 F.2d 234 (5th Cir. 1968); Strauss v. Douglas Aircraft Co., 404 F.2d 1152 (2d Cir. 1968). Here, Appellant was aware of the fact situation upon which the amended complaint was based. The decedent’s injuries resulted from exactly the same circumstances as did his death. There has been no showing of any prejudice by Appellant. It filed no motion for a continuance to answer the amended complaint and its answer was filed within a few days of the filing of the amendment. In Green v. Wolf Corp., 50 F.R.D. 220 (S.D.N.Y.1970), the Court said:

Defendants contend that they will be prejudiced if plaintiff’s motion is granted. Substantial prejudice to an opposing party in the event of an amendment is a sufficient basis for a denial of leave to replead. Indeed, this is the usual area upon which courts focus when considering whether to permit an amendment. [Citations omitted]. However, defendant’s claim of prejudice in this case appears insubstantial.
Defendants aver that they have conducted this litigation thus far on the basis of the claims asserted in the original complaint. This may be assumed, but defendants do not go beyond this statement to demonstrate what real prejudice arises from this state of facts. For example, no showing is made of what delay aside from the time required to file an answer will ensue if the proposed amendment is allowed. Nor do defendants attempt to demonstrate that evidence relevant to plaintiff’s new claims now is no longer available. In short, defendants’ mere statement of the obvious advances their claim of prejudice not at all. 50 F.R.D. at 223.

Similarly, in this case Appellant has failed to show prejudice resulting from the amended complaint.

Appellant contends that the District Court erred in its charge and erroneously refused to submit to the jury an interrogatory and various specially requested charges. In considering this contention, we find that Appellant failed to comply with Rule 51 of the Federal Rules of Civil Procedure in making its objections to the Court’s charge. Rule 51 provides that “no party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” Counsel for both parties were given an opportunity to take exception to the Court’s charge. Appellant, in taking its exceptions, did not state distinctly the matter objected to and the grounds of the objection. The alleged errors in the charge and in the refusal to give special instructions are not, then, properly before this Court. Richfield Oil Corp. v. Karseal Corp., 271 F.2d 709, 718-722 (9th Cir. 1959); Greinke v. Yellow Cab Co., 250 F.2d 865 (7th Cir. 1958). Nevertheless, we have considered Appellant’s contentions and find them to be without' merit. One of the allegedly erroneous instructions and a requested interrogatory dealt with the standard of care Appellant was required to exercise under Ohio law in odorizing the gas. As we have noted supra, a jury may find negligence even though there has been compliance with a state statute. Appellant requested that the jury be instructed that it was not to consider income tax in determining the amount of damages, since the damages would not be subject to federal income tax. We have previously held that refusal to give such a charge does not constitute error. Payne v. Baltimore and O. R. R., 309 F.2d 546 (6th Cir. 1962). Appellant also cites as error the refusal to give the special charge stating that the individual who delivered the gas and serviced the Hageman’s hot water heater was not, as a matter of law, Appellant’s agent. We find more than sufficient evidence in the record to justify the District Court’s denial of this requested instruction.

The next alleged error relates to Appellee’s settlement with Rheem. Appellant requested an instruction that it was entitled to have the amount of $350,000 substraeted from the amount of damages determined by the jury. It thus asserts that it is entitled to have its liability for the wrongful death reduced by the entire amount of Appellee’s settlement with Rheem, a settlement which specifically states that the money paid was for the claim of pain and suffering. This alleged error is based on the contention that Appellee’s claim for pain and suffering was barred by- the statute of limitations, a contention which we have rejected supra. Since we have held there were, two claims properly before the Court, the requested instruction was properly denied. However, Appellant asserts also that even if the pain and' suffering claim was properly added by the amendment, at least a portion of the settlement was for the wrongful death claim since that claim was dismissed as to Rheem. It is contended that the District Court erred in refusing to permit counsel for Rheem to testify for appellant concerning his understanding of the agreement. The settlement agreement between Appellee and Rheem provided the following:

AGREEMENT'FOR JUDGMENT-COUNT III ONLY

DISMISSAL OF COUNT I — ONLY (Filed October 16,1972)

Now come the parties Rheem Manufacturing Company and Sharon Hage-man and move that judgment be entered on Count III of Plaintiff’s Amended Complaint in the amount of Three Hundred Fifty Thousand Dollars ($350,000.-00) including interest and costs and further the parties move that Count I be dismissed without costs.

/s/ Edward M. Swartz Attorney for Plaintiff /s/ Timothy P. Risteau

Attorney for Defendant Rheem Manufacturing Company

APPROVED AND SO ORDERED:

/s/ Frank J. Battisti

United States District Judge

Count III was the pain and suffering claim against Rheem and Count I was the wrongful death claim. Thus, the stated intent of the agreement is that the entire $350,000 was to be compensation for pain and suffering. Appellant suggests that this was not the case because Appellee’s complaint had alleged only $225,000 in damages for pain and suffering and that Rheem sought to buy out of the entire lawsuit, not just the pain and suffering claim.

While there is no right of contribution among joint tortfeasors in Ohio, Royal Indemnity Co. v. Becker, 122 Ohio St. 582, 173 N.E. 194 (1930), if part of the consideration for the settlement was the dismissal of the wrongful death action against Rheem, then that portion of Appellee’s compensation must be applied pro tanto to the judgment against Appellant. Adams Express Co. v. Beckwith, 100 Ohio St. 348, 126 N.E. 300 (1919); Bacik v. Weaver, 173 Ohio St. 214, 180 N.E.2d 820 (1963). As the Court explained in Beckwith, all injured party is entitled to receive full satisfaction for his injury only once. The jury determined that the total damages for the wrongful death amounted to $532,832.02 and this amount was charged to Appellant. Appellant asserts that the recovery by Ap-pellee for the wrongful death has been more than this amount and that Appel-lee has, therefore, recovered an amount greater than full satisfaction.

The consideration of this question requires a determination of whether we may look behind the language of the agreement and attach to it a meaning that is different from its expressed intention. Settlement agreements of this type are contracts and their interpretation is governed by contract law. Diamond v. Davis Bakery, Inc., 8 Ohio St.2d 38, 222 N.E.2d 430 (1966); Adams Express Co. v. Beckwith, 100 Ohio St. 348, 126 N.E. 200 (1919). This situation is not one in which one of the parties to the contract is attempting to repudiate, correct or set aside the agreement. Both Appellee and Rheem are presumably satisfied with the terms of the agreement. For that reason the trial court refused to permit counsel for Rheem to testify for Appellant concerning his understanding of the agreement. Since Appellant was not a party to the agreement, it is not entitled to receive any benefit from the settlement agreement between Appellee and Rheem, Bacik v. Weaver, 173 Ohio St. 214, 180 N.E.2d 820 (1962), and would usually be unable to attack the agreement. However, the agreement arose’ out of the litigation in which Appellant was involved as a joint tortfeasor and there must necessarily be some consideration of its effect on Appellant. An alleged tortfeasor may raise as a defense the plaintiff’s settlement with another joint tortfeasor for full or partial satisfaction of the claim. Connelly v. United States Steel Co., 161 Ohio St. 448, 119 N.E.2d 843 (1954), Davis v. Buckeye Light & Power Co., 145 Ohio St. 172, 61 N.E.2d 90 (1945). If a portion of the settlement went toward the dismissal of the wrongful death claims, then Appellant has been held liable for the wrongful death for an amount greater than it could have been had there been no settlement. While a defendant can not benefit from a settlement agreement between the plaintiff and a co-defendant, neither can it work to his detriment. Here Ap-pellee received full satisfaction for the pain and suffering claim from the Rheem Manufacturing Company. This Appellee was entitled to do. A person injured by actions of more than one party may enforce his claim- entirely against one of the parties or severally against all of them. Larson v. Cleveland R. R., 142 Ohio St. 20, 50 N.E.2d 163 (1943). Appellee could also collect full satisfaction from Appellant for the wrongful death action as she contends she has done. But she may not collect a portion of the damages for the wrongful death from one joint tortfeasor and then collect the full damages from the remaining tortfeasor. A settlement of a claim with one tortfeasor is, to the extent of the settlement, “a satisfaction pro tanto to the party wronged and to that extent works a discharge to all joint wrongdoers.” Adams Express Co. v. Beckwith, 100 Ohio St. 348, 126 N.E. 300 (1919) (paragraph 4 of the syllabus).

It is the rule in Ohio that a release of one joint tortfeasor operates as a release of all the tortfeasors unless the release expressly reserves the plaintiff’s rights against the remaining tortfeasors. Adams Express Co. v. Beck-with, supra. The Ohio Supreme Court has reasoned that “receipt of ‘full satisfaction’ from one of several persons whose concurrent acts of negligence caused a single injury releases all.” Davis v. Buckeye Light and Power Co., 145 Ohio St. 172, 61 N.E.2d 90 (1945) (paragraph 1 of the syllabus). In Bacik v. Weaver, 173 Ohio St. 214, 180 N.E.2d 820 (1962), the Court expanded on this rule:

“Where a party has a cause of action in tort against several joint tort-fea-sors and for a legal consideration gives a release to one of such tort-fea-sors, such party has in effect sold, transferred or abandoned his cause of action to the party to whom the release has been given. Hence, the party who had such cause of action thereafter has no cause of action to assert against anyone. As a result, all joint tort-feasors are considered as released.
“On the other hand, where such party merely has agreed for a consideration not to sue or otherwise assert such cause of action against one of such tort-feasors, there is no transfer or abandonment of such party’s cause of action. Thus, such cause of action continues to remain in such party and can thereafter be enforced against anyone except someone whom such party has agreed not to sue.” 173 Ohio St. at 216-217, 180 N.E.2d at 822.

The Court, in its syllabus, formulated the rule to be applied:

“Where a valid agreement is made not to sue parties whose negligence is claimed to have proximately contributed with the negligence of others to cause injury and where the agreement does not purport to release or transfer any cause of action for the injury and where the agreement does not expressly recognize the consideration paid thereunder as full satisfaction for the injury, such agreement will not operate to bar actions against others for causing such injury even though the agreement does not expressly reserve rights against such others.”

In the agreement between A ppellee and Rheem, there was neither a . expressed reservation of rights nor an expression that full satisfaction had been received. We find that the agreement does not operate to bar Appellee from asserting her wrongful death claim against Appellant. As the agreement stated, only the claims against Rheem were dismissed for the consideration given. The pain and suffering claim was dismissed against Appellant but the trial of the wrongful death claim continued. Further, after its settlement with Rheem, Appellee attempted to settle her case with Appellant. It thus is apparent that Appellee did not consider that she had received full satisfaction and that she intended to continue her litigation against Appellant. Our purpose must be to promote the intention of the parties to the agreement, see Diamond v. Davis Bakery, Inc., 8 Ohio St.2d 38, 222 N.E.2d 430 (1966); Adams Express Co. v. Beckwith, 100 Ohio St. 348, 126 N.E. 300 (1919).

The Ohio Supreme Court has not considered the question of whether a settlement agreement reached during trial is to be treated as a release with a reservation of rights, a covenant not to sue, or a complete release of all joint tortfeasors. It is our opinion, however, that the agreement in this case operated either as a covenant not to sue or a release with a reservation of rights. See Stephenson v. Duriron Co., 292 F.Supp. 66, 86-87 (S.D.Ohio 1968), aff’d, 428 F. 2d 387 (6th Cir. 1970). We find that the holding of the Ohio Supreme Court in Bacik v. Weaver, 173 Ohio St. 214, 180 N.E.2d 820 (1962) is applicable in this case. Thus, we hold that the settlement with Rheem did not preclude Appellee’s continuation of the litigation against Appellant.

However, it is our opinion that the entire settlement amount was not for the pain and suffering claim but that a portion of it was in settlement of the wrongful death claim. The settlement was for $350,000 while Appellee’s complaint alleged $225,000 in damages for pain and suffering. It is not logical that Rheem would have settled for the higher amount when it could have confessed judgment for $225,000 on the pain and suffering claim. Nor do we believe that Rheem would have settled the pain and suffering claim alone if it could still have been sued for the wrongful death. Our opinion is strengthened by the following statement in Appellee’s brief:

During the course of the trial, the plaintiff settled her action for conscious suffering against Rheem, in the amount of $350,000, the plaintiff and Rheem entering judgment for that amount on October 16, 1972. As a condition ancillary to that judgment and settlement, plaintiff dismissed her wrongful death action against Rheem and also dismissed a wrongful death action, Summit County Common Pleas Court Case No. 285925, pending against Motor Wheel Corporation, a party with whom Rheem had an indemnification agreement.

We find it necessary that the case be remanded to the District Court for the purpose of determining the appropriate allocation of the $350,000 between the pain and suffering and the wrongful death claims.

Appellant also asserts that the District Court conducted the trial without an open mind and in a manner prejudicial to Appellant. This contention involves the Court’s rulings on numerous evidentiary questions, examination of witnesses, and comments on the evidence which allegedly emphasized the plaintiff’s case. The record does not demonstrate that the trial was conducted in a prejudicial manner. The jury was given explicit instructions to disregard any exchange between the Court and counsel. Nor has Appellant shown that the evidentiary rulings of the Court, if erroneous, jeopardized Appellant’s right to a fair trial. Westwood Chemical, Inc. v. Owens-Corning Fiberglas Corp., 445 F. 2d 911, 918 (6th Cir. 1971), cert, denied, 405 U.S. 917, 92 S.Ct. 941, 30 L.Ed.2d 786 (1972); Rule 61, Federal Rules of Civil Procedure. Finally, the comments on the evidence made by the District Court during its charge to the jury were within the scope of the Court’s power. As the Supreme Court stated in Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933) :

“In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination.” 289 U.S. at 469, 53 S.Ct. at 699.

In the Court’s charge, it was made clear that the jury is the sole judge of the weight of the evidence and the ultimate facts to be found. Thus, we find “no over-emphasis to the degree of unfair prejudice to appellant.” Dempsey v. Heise, 250 F.2d 852, 854 (6th Cir. 1958).

The judgment of the District Court is affirmed with regard to Appellant’s liability but is remanded for the purpose of determining what portion of the settlement between Appellee and Rheem was properly allocable as compensation for the wrongful death claim. The judgment against Appellant is then to be reduced by that amount. Each party is to pay his own costs.

      . The entire exchange between the Court and Appellant’s counsel regarding a directed verdict was the following: “Mr. Hurd : I forgot to do something, and I wanted for the record to move for a directed verdict. The Court: That is overruled.”

      . Ohio Rev.Code § 3737.18 provides that one pound of odorant (ethyl mercaptan) is to be added to every 10,000 gallons of liquified petroleum gas. Evidence was introduced to the effect that Appellant had added 2¾ — 3 pounds of odorant per 10,000 gallons to the gas delivered to the Hagemans.

      . These questions involve whether there was a failure to warn and properly instruct the purchaser of the gas, whether the gas had been supplied for use in a defective hot water tank and whether the supplier of the gas was Appellant’s agent.

      . Appellant’s counsel made the following reply to the inquiry by the Court as to whether there were any exceptions to the charge:
      Your Honor, I take exception — I can’t go into each one of them, but I take exception to many of the comments that the Court made, but specifically I would except to the Court’s charge as it relates to agency. I would except to the Court’s charges with respect to contributory negligence, to the Court’s comments that there was no evidence in respect of various things in the charge, to the emphasis that the Court put upon certain aspects of the case which could be only interpreted as favoring the plaintiff, to the Court’s position on the standard of conduct as set by governmental bodies, particularly the State of Ohio in this case, on the amount of gas • — the amount of odorant and what constitutes compliance with that law and the effect of it, and also- to the thing that counsel touched on that you referred frequently to manufacturer, and of course we are not the manufacturer when talking about the duties.
      With regard to the charge relating to the duties of a manufacturer, the Court called the jury back and instructed them that the term distributor should have been used.

      . The requested instruction was:
      “A party may bring an action and obtain a judgment against more than one wrongdoer for his damage. However, irrespective of the number of defendants, the plaintiff may receive full compensation but once for the same injury.
      Therefore, in the event you find for the plaintiff, the defendant is entitled to a credit of $350,000 previously received by the plaintiff from Rheem Manufacturing Company.
      If you find for the plaintiff, you will determine the extent of the plaintiff’s damage. You will determine the full amount which the evidence shows she is justly entitled to receive. From this you will deduct $350,000 which plaintiff previously received and insert the difference in your verdict.
      If you find that plaintiff was damaged to the extent of $350,000 or less, plaintiff has been fully compensated and in that event you must return a verdict for the defendant Signal LP Gas Inc.”

      . In Appellant’s answer to Appellee’s second amended complaint, it was alleged .in the Fifth Affirmative Defense that Appellee, in consideration of the receipt of $350,000, release and discharged Rheem from all claims for wrongful death and pain and suffering arising out of the explosion, and by reason thereof, was barred from recovering from Signal. In the Sixth Affirmative Defense Appellant alleged in the alternative that the $350,000 which was paid in settlement, should be applied to reduce the wrongful death claim against it [Appellant]. In other words, Signal contended that the settlement was by an agreed judgment of the District Court which effectively released and discharged not only the claim for pain and suffering but also the wrongful death claim.

      . There is an indication that Appellant would have been able to offer some evidence to support this contention. In a conference between counsel and the Court in the Court’s chambers, counsel for Appellant made the following proffer of the testimony of Rheem’s counsel:
      “Mr. Hurd: If permitted to testify, Mr. Ristau would state that the position of Rheem as represented by him in this action was that it was their desire and their intention to “buy their peace,” to secure a dismissal from the actions pending here and in Summit County against Motor Wheel, which was all part of the same case, that for this his company paid $350,000. That it was not their intent specifically to release a claim for conscious pain and suffering, which he had objected to on the grounds of the statute in chambers when the amended complaint was filed, and that it therefore had to be a payment in consideration of a dismissal of any liability they might have had because of the wrongful death cause of action.”

      . Further, there was a statement by the Court during its in-Chambers conference with counsel to the effect that Rheem had settled the entire lawsuit:
      The Court: You do agree, however, that Rheem wasn’t — first of all, the amended complaint was allowed.
      Mr. Hurd: Over objection.
      The Court: Over objection. Therefore pain and suffering was definitely an issue in this case, conscious pain and suffering was definitely an issue in the case.
      Now, you do agree that Rheem did not, in settling with Mr. Swartz, agree to assume whatever exposure or liability you may have in this case?
      Mr. Hurd: Oh, I certainly agree with that.
      The Court: All right.
      Mr. Hurd: They didn’t intend to do that. The effect of what they might — it might have that affect, depending — ■
      The Court: But Rheem simply intended to settle its exposure, or whatever liability it may have had in this case, correct?
      Mr. Hurd: Yes.


source: Caselaw Access Project

author: JOHN R. BROWN, Chief Judge:

license: Public Domain

text:
    Mrs. John W. ALLEN, Plaintiff-Appellant, v. The ESTATE of Charles Francis CARMAN and Mrs. Sylvia Carman, Executrix, et al., Defendants-Appellees.
    No. 30472.
    United States Court of Appeals, Fifth Circuit.
    Nov. 1, 1973.
    Eugene R. Kiser, Atlanta, Ga., Warren A. Rosser, Chamblee, Ga., Leonard Jaffe, Miami, Fla., for plaintiff-appellant.
    James A. Smith, Fred C. Davant, Miami, Fla., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and PHILLIPS and INGRAHAM, Circuit Judges.

       Hon. Orie L. Phillips, of the Tenth Circuit, sitting by designation.

   JOHN R. BROWN, Chief Judge:

Once again this Court, and more importantly, the jurisprudence is aided by the remarkable Florida certification procedure pursuant to the provisions of § 25.031 Florida Statutes, F.S.A., and Rule 4.61 Florida Appellate Rules, 32 F. S.A.

At the center of a common law suit, by the survivors against the employer for death of the employee in an air crash, were decisive questions over the correct interpretation of the Florida Workmen’s Compensation Law, 15 F.S. A. § 440.01 et seq. particularly whether its exclusivity provisions barred recovery. The District Court granted summary judgment for the defendant-employer in the plaintiff’s wrongful death action and sustained the liability insurer’s employee exclusion of the policy covering the company airplane.

Based on the answers by the Supreme Court of Florida, Allen v. Estate of Carman, Fla., 1973, 281 So.2d 317, to the certified questions and the memo-randa briefs submitted subsequently at our request we reverse the decision of the District Court, direct a finding that the appellant’s husband did not die in the course of his employment, hold the airplane policy applicable and remand the ease to the District Court for a trial on the issues of negligence and damages.

The Supreme Court of Florida in answer to questions 1(a) and (b) make it plain that by accepting the Hartford Workers Compensation Policy the employer could rightfully invoke the exclusivity provision of the compensation act and that posting was not necessary.

The crucial question then became question 2 — whether the employee’s death notwithstanding application generally of the Act, occurred in the “course of his employment.” In what the employer complains is in broad brush terms, the Florida Court in answer to question 2, on whether the employee’s death occurred in the course of his employment, had this to say:

“We conclude that it was not. The rule in Florida holds that injuries sustained by employees when going to or returning from their regular place of work are not deemed to arise out of and in the course of their employment. Fidelity & Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495 (1940).”

281 So.2d 317, 323.

It is not for us to tell our distinguished Brothers of the high court of Florida how to write (or paint). However characterized, what they have said is the law of the Medes and Persians which binds Floridians and Erie-bound Federal Judges, and it is declared in plain language that even those who run may read.

Consequently, that the employer now pleads we remand this as a factual issue for trial, contradicts both the holding of the Florida Court and, for that matter, the employer’s own contention upon which it won and tried to save its victory. Against the unqualified statement in its initial brief to us that the employee’s “argument on this issue tends to ignore the uncontradicted facts” (Appellee brief page 11) which eehoed the like contention which the District Judge adopted, it now claims that all of this is for factual resolution on remand.

The Supreme Court of Florida had the whole record and all the facts that either party could dredge up on this issue. That Court held that on this record, represented by all to be uncontradicted, the employee, as a matter of law, was not in the course of his employment.

The positiveness of this holding is reenforced by the Court’s answers to question 4 on the aircraft liability policy. Recognizing that the employee exclusion number 5 would make the insurer not liable, the Court in its answer to the passenger-crew problem (question 4, note 2, supra) restated its prior determination. “But in this instance we have already determined, in our answer to Question 2, that Mr. Allen was outside the course of his employment at the time the accident took place.” 281 So.2d 317, 324.

Thus all that remains is the question of negligence and damages. How fortunate it is that by this procedure all of the difficult problems of Florida law have been authoritatively answered.

Reversed and remanded.

      . On numerous occasions this Court has availed itself of the advantages of the Florida certification procedure. National Education Association, Inc. v. Lee County Board of Public Instruction, 5 Cir., 1971, 448 F.2d 451, on certification, Fla., 1972, 260 So.2d 206, on receipt of answers to certification, 5 Cir., 1972, 467 F.2d 447; Gordon v. John Deere Company, 5 Cir., 1971, 451 F.2d 234, on certification, Fla., 1972, 264 So.2d 419, on receipt of answers to the certification, 5 Cir., 1972, 466 F.2d 1200; Boyd v. Bowman, 5 Cir., 1971, 443 F.2d 848, on certification, Fla., 1971, 256 So.2d 1, on receipt of answers to certification, 5 Cir., 1972, 455 F.2d 927. See also cases listed in footnote 1, Boyd v. Bowman, 443 F.2d at 849.

      . The questions which we certified to the Supreme Court of Florida were:
      3. Questions to be Certified

      1. (a) Under Florida law may an employer with only one employee invoke the defense of exclusivity of workmen’s compensation?
      (b) If the answer to (a) is in the affirmative, may the employer assert the defense of exclusivity of workmen’s compensation when
      (i) the employer has secured a valid workmen’s compensation policy covering his one employee, but
      (ii) when the employer has not posted notice of his intention to cover his one employee?
      (c) If posting of notice is required for the defense of exclusivity, upon whom does the burden of proof rest — employer or employee —to establish posting?
      2. Assuming that the facts warrant a finding that the airplane was being used to transport Carman and Allen to the Live Oak job site or to some other job site or prospective job site, was Allen’s death sustained in the course of his employment?
      3. In order for a workmen’s compensation policy written in Georgia to be valid under the Florida Workmen’s Compensation Law, need it be endorsed or otherwise approved by (i) the insurer, (ii) the Florida Industrial Commission or (iii) both?
      4. Does the definition of ‘passenger’ in the Banger liability policy exclude coverage of those employees of the insured who are neither pilot nor crew?”
      446 F.2d 1276, 1279-1280.

      . The Court found it unnecessary to answer 1(c) in light of its decision in parts (a) and (b).

      . By citation and rejection of the very eases urged in the employer’s initial brief to us, the Court went on to write in very precise terms:
      “Several exceptions to the general rule have been established by this Court, but none of these apply to Allen’s situation. The record affirmatively discloses that the transporation provided on the day of the accident was furnished as a convenience to the employee, rather than as an express or implied part of the employment 'contract between the parties. For eases formulating the contractual exception to the “going and coming” rule see Southern States Mfg. Co. v. Wright, 146 Fla. 29, 200 So. 375 (1941) ; Lee v. Florida Pine & Cypress, 157 So.2d 513 (Fla.1963) ; and Swartzer v. Food Fair Stores, Inc., 175 So.2d 36 (Fla.1965). Other exceptions to the rule, including the special hazard exception^ and the principle that employees whose occupation involves travel as part of the employment are covered while traveling,!! are clearly inapplicable in the instant situation, and require no discussion.
      5. See Naranja Rock Co. v. Dawal Farms, 74 So.2d 282 (Fla.1954).
      6. N. & L. Auto Parts Co. v. Doman, 111 So.2d 270 (Fla.App.lst, 1959), certiorari dismissed with opinion 117 So.2d 410 (Fla.1960).”
      281 So.2d 317, 323.

      . In its memoranda order-opinion sustaining the employer’s motion for summary judgment, the District Judge found:
      “12. At the time of the fatal accident, John W. Allen was an employee of Charles F. Carman and the said employee’s injuries and resultant death arose out of and in the course of his employment.”
      And on this he then concluded by citing the very cases read differently by the Florida Court:
      “1. Mr. Allen was in the course of his employment at the time of his death. Although the transportation supplied this particular day was not a condition of employment it was, however, part of his employment. Mr. Carman was to transport Mr. Allen to the job site so that Mr. Allen could drive Mr. Carman’s truck back to Sarasota, Florida from the job site. Therefore, the transportation was substantially related to the employment. Sweat v. Allen, 145 Fla. 733, 200 So. 348 (1941) ; Southern States Mfg. Co. v. Wright, 146 Fla. 29, 200 So. 375 (1941).”


text:
    Amador RAMIREZ, Jr., Individually, as Administrator of the Estate of Ana Maria S. De Ramirez, Deceased, et al., Plaintiffs-Appellants, v. AUTOBUSES BLANCOS FLECHA ROJA, S.A. DE C.V., Defendant-Appellee.
    No. 73-2724
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 2, 1973.
    C. M. Zaffirini, Laredo, Tex., for plaintiff s-appellants.
    George P. Kazen, John E. Mann, George Person, Laredo, Tex., Roy C. Brock, San Antonio, Tex., for defendant-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, 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.

   JOHN R. BROWN, Chief Judge:

Ana Maria S. De Ramirez, purchased a one way bus ticket from Autobuses Blancos Flecha Roja, a Mexican corporation, in Laredo, Texas for transportation from Laredo to Saltillo Coahuila, Mexico. While in Mexico enroute to Saltillo, the bus was involved in a serious collision resulting in the death of Mrs. Ramirez.

The administrators of the estate and next best friend of the minor children instituted this diversity action in the District Court for the Southern District of Texas seeking to recover damages for loss of support, and loss of earnings as well as for pain and suffering and funeral expenses. The District Court dismissed the claims for loss of support and earnings on the grounds that this type of recovery would be governed by the applicable wrongful death act and the Texas Wrongful Death Act was clearly inapplicable because it does not have any extraterritorial effect and the courts of Texas would not apply the applicable law of Mexico due to its dissimilarity to the law of Texas.

The District Court also dismissed the claim for damages for pain and suffering and funeral expenses based on a breach of contract theory due to Appellant’s failure to amend its complaint or offer affidavits specifying what amount' of the aggregate damages were attributable to pain, suffering and funeral expenses in order that the court could determine whether the facts as alleged satisfied the requisite jurisdictional amount in absence of the wrongful death claim. Appellant challenges the dismissal of the wrongful death claim. Having determined that this claim is precluded by Texas statute and precedent we affirm.

In Marmon v. Mustang Aviation, Inc., 1968, 430 S.W.2d 182 the Supreme Court of Texas has recently reaffirmed the principle that for choice of law purposes the “place of the injury” rule determines whether the Texas Wrongful Death Act applies. In Marmon the Court held that where Texas residents were killed when an airplane chartered in Texas crashed in Colorado because of the negligence of a Texas pilot while returning to Texas, the Wrongful Death Act of Colorado rather than Texas provided the appropriate remedy. Marmon would appear to preclude the application of the Texas Wrongful Death Act to the instant case where a Mexican national having purchased her ticket in Texas died as the result of a bus collision in Mexico.

Appellant attempts to circumvent this result by alleging that appellee breached its implied contractual duty of safe carriage thereby invoking the “place of the execution” rule as the choice of law determinant in contract cases, distinguishing Marmon as a mere tort case.

In support of its breach of contract theory appellant relies on Hudson v. Continental Bus System, Inc., Tex.Civ. App., 1958, 317 S.W.2d 584 and Garza v. Greyhound Lines, Inc., Tex.Civ.App. 1967, 418 S.W.2d 595 each of which is binding on us. See Ford Motor Co. v. Mathis, 5 Cir., 1963, 322 F.2d 267, 269. In Hudson, a Texas resident who. had purchased a round trip guided tour ticket from an American bus company was injured while being transported by automobile in Mexico by a connecting carrier. The Texas court allowed the plaintiff to state a personal injury claim against the bus company based on the company’s breach of its implicit contractual duty of safe carriage. By allowing the plaintiff to phrase its claim in terms of contract, the Court was able to invoke the place of execution rule for conflicts purposes thereby avoiding the preclusive effect of the place of injury rule. The Court employed the same rationale in Garza v. Greyhound Lines, Inc. on substantially similar facts.

Appellant’s attempt to avoid Marmon founders, however, on the very real distinction between personal injury and wrongful death actions. “A cause of action for wrongful death is not simply a more severe personal injury case.” Rather it is a separate statutorily created cause of action unknown to the common law. In Marmon, the Supreme Court of Texas attempted to divine the legislative intent underlying the Texas Wrongful Death Act and concluded that it was clear that the statute was not intended to have any extraterritorial effect — that is it was not intended to apply to deaths resulting from injuries occurring outside the physical boundaries of the state of Texas. Whether a claim is phrased in terms of contract or tort the result must be the same — the Texas Wrongful Death Act as recently and authoritatively construed is not an available remedy where the injury causing death did not occur on Texas soil.

Eubanks v. Schwalbe, 1933, Tex.Civ. App., 55 S.W.2d 906, modified on other grounds, 126 Tex. 405, 87 S.W.2d 248 is not authority for the proposition that a plaintiff may base recovery under the Texas Wrongful Death Act on a breach of contract claim. In Eubanks, a contractor involved in excavation near a state highway breached its agreement with the state to place a barrier and warning lights near the excavation. The Court held that the wife of an individual who was killed as a result of the negligent excavation could maintain a wrongful death action even though the defendant’s duty to provide adequate precautions had arisen out of a contract (with a third party). The Court found, however, that the contractor’s negligence constituted, a tortious breach of its duty to travelers and it was this breach of duty which gave rise to the wrongful death action.

The more recent case of Goelz v. J. K. & Susie L. Wadley Research Institute and Blood Bank, Tex.Civ.App., 1961, 350 S.W.2d 573 strongly suggests that the Texas Wrongful Death Act will not support a claim for recovery arising under a breach of contract theory. In Goelz, the husband of decedent brought a wrongful death action against a blood bank which had caused decedent’s death by furnishing blood of the incorrect type for a transfusion. The plaintiff based claims for relief on contract as well as tort theories. After dismissing the tort theory on the basis of charitable immunity the Court observed that a theory based on breach of an implied warranty was not cognizable under the Wrongful Death Act. Rather where a breach of contract also constitutes a tort, “[the] cause of action may ordinarily arise under our death statute on grounds of tort not breach of contract as such.”

Texas recognizes that a breach of the contractual duty of safe carriage is a type of tortious conduct for which the law provides a remedy. But we are convinced that the Texas courts would follow Marmon and apply the “place of the injury” rule to resolve choice of law questions concerning the application of the Wrongful Death Act to a breach of this duty regardless of whether the duty arose out of a contract — the purchase of a bus ticket. Applying the place of the injury rule, the law of Texas is inapplicable since the injury arose out of a bus collision in Mexico allegedly attributable to the gross negligence of the bus driver.

It is far from clear that appellant would fare any better under the' Texas choice of law rules even if the death action could be based on a contract theory. In Texas, the law of the place where the contract is made generally governs. Austin Building Company v. National Union Fire Insurance Company, Tex.1968, 432 S.W.2d 697. When a contract is made in one state to be performed in another, the place of performance governs. Castilleja v. Camero, Tex.1967, 414 S.W.2d 424. And where a contract is to be performed in more than one place, the place of making governs unless the parties intended otherwise. Hatchett v. Williams, Tex.Civ.App., 1968, 437 S.W.2d 334, cert, denied, 396 U.S. 963, 90 S.Ct. 437, 24 L.Ed.2d 427.

In attempting to invoke the law of Texas appellant relies on Hudson v. Continental Bus System, Inc., Tex.Civ.App., 1958, 317 S.W.2d 584 at 589 where the Court stated “ ‘it has been held that a contract cannot be construed with reference to a foreign law, unless the intent of the parties to be governed by such law is evidence from the instrument itself without the aid, of extrinsic evidence.’ There is nothing in this record to indicate any intention on the part of the parties that the law of the foreign country of Mexico would apply” quoting 17 C.J.S. Contracts § 330. In Hudson an American citizen had purchased a round trip tour ticket to Mexico from an American bus company. The present case, however, involves a Mexican National who purchased a one way bus ticket to Mexico printed in Spanish, in a Texas border town from a Mexican bus company which did not operate between cities in the United States. While the contract was made in Texas it was to be performed almost entirely in Mexico.

Unlike Hudson the facts of this case. lend more support to the inference that the parties may have assumed that the laws of Mexico rather than Texas governed this transaction and its incidents. We need not resolve this question, however, since we are convinced that the Texas courts would not allow a plaintiff to avoid the “place of the injury rule” under the Wrongful Death Act by phrasing the claim in terms of contract.

Of course the plaintiff is not immediately out of court once it is determined that the substantive law of the forum state is inapplicable. The Texas Wrongful Death Act specifically provides that:

“Whenever the death or personal injury of a citizen of this state or of the United States, or any foreign country having equal treaty rights with the United States on behalf of its citizens, has been or may be caused by the wrongful act, neglect or default of another in any foreign state or country for which a right to maintain an action and recover damages thereof is given by the statute or a law of such foreign state or a country, such right of action may be enforced in the courts of this State within the time prescribed for the commencement of such actions by the statutes of [the] State.”

This would appear to grant the courts of Texas a clear mandate to apply the law of Mexico where applicable. Nevertheless, as the District Court noted, the Texas courts have consistently refused to apply the tort laws of the Republic of Mexico and its political subdivisions where it has been determined that those laws are applicable on the ground that they are too dissimilar to the laws of Texas. See Carter v. Tillery, Tex.Civ. App,. 1957, 257 S.W.2d 465; El Paso and Juarez Traction Co. v. Carruth, Tex. Com.App., 1923, 255 S.W. 159. See also Mexican National Railway Company v. Jackson, 89 Tex. 107, 33 S.W. 857 (decided prior to the enactment of Article 4678).

Appellee has offered proof of the applicable laws of the Republic of Mexico and of the state of Nuevo Leon where the accident occurred.

The fact of the dissimilarity is not challenged. The Appellee asserts without any contradiction a number of dissimilarities which we credit with no independent research into Mexican law. The law of Mexico does not allow damages for pain and suffering or physical injury in the common tort suit but rather provides compensation for lost wages calculated through a formula based on the injured party’s former wages and the Mexican federal labor wage standards. Damages known as “moral reparations” are also available. In addition, “imprudent” actions may also constitute a criminal offense and an individual convicted of such an offense may be required to provide restitution to the injured victim or his family either through a fine imposed or by means of the proceeds earned through prison labor.

We are confident that despite the existence of. article 4678, the Texas courts under the judicially recognized doctrine of dissimilarity would refuse to attempt to apply the unfamiliar remedial provisions of the Mexican tort law.

Having determined that the Wrongful Death Act of Texas is inapplicable and that the law of Mexico would appear to provide the only other available remedy, we must follow the law of Texas and affirm the District Court’s dismissal of the appellant’s claim without prejudice to any future attempt to bring this action in a different and more appropriate forum.

Affirmed.

      . Vernon’s Ann.Tex.Civ.St. arts. 4671-4678.

      . See Starks v. Louisville & Nashville Railroad Co., 5 Cir., 1972, 468 F.2d 896; Opelika Nursing Home, Inc. v. Richardson, 5 Cir., 1971, 448 F.2d 658; Jones v. Landry, 5 Cir., 1967, 387 F.2d 102.

      . In answer to Appellee’s interrogatory, Appellant conceded that it did not know whether the deceased died instantaneously. Apparently it was never able to obtain such information.

      . See McEntire v. Forte, Tex.Civ.App., 1971, 463 S.W.2d 491 following Marmon. We have, naturally, followed Marmon. Gaston v. B. F. Walker, Inc., 5 Cir., 1968, 400 F.2d 671; McDaniel v. Petroleum Helicopters, Inc., 5 Cir., 1972, 455 F.2d 137.

      . Specifically appellant alleges that appellee employed an unlicensed driver, failed to inspect the bus for safety purposes, failed to secure requisite safety inspection certificates from Mexico and Texas, and that the driver’s reckless driving precipitated the collision.

      . Brief for appellee at 7. Appellant argues that as a matter of policy it is absurd to allow an individual who is merely injured to recover damages under Texas law based on a breach of contract theory while denying such a right of recovery to one who dies as a result of the injury suffered. This argument fails to observe the distinction between the cause of action for wrongful death and the cause of action for pain and suffering based on the breach of contract theory. Appellant in fact stated separate claims for wrongful death and pain and suffering. Recovery under the former was precluded by the applicable choice of law rule, while the latter was dismissed due to appellant’s inability to allege sufficient facts in support of the claim to satisfy the jurisdictional prerequisites.

      . The Act itself provides a remedy “when an injury causing the death of any person is caused by the wrongful act, neglect, carelessness, unskillfulness, or default of another person . . . ” (emphasis added). V.A.T.S. art. 4671. The operative language establishing the cause of action is phrased in the idiom of tort.

      . 350 S.W.2d at 577. This may be no more than dicta since the Court went on to hold that the supplying of blood for a fee constitutes the rendition of a service not a sale of property and therefore does not give rise to a warranty. Nevertheless, Goelz constitutes the best recent evidence regarding the views of the Texas courts on the possibility of bringing a wrongful death action on a contract theory.
      In Deweese v. Southwestern Tel & Tel Co., Tex.Civ.App., 1912, 144 S.W. 732, the Court held that the plaintiff failed to state a cause of action for wrongful death where the telephone company arguably breached its contractual duty by failing to provide communications between the decedent and her physician immediately prior to death. The Court stated that the connection between the alleged breach and the death in issue was simply too tenuous to support the action.

      . The decedent boarded the bus in Laredo, Texas, a border town.

      . V.A.T.S. art. 4678.

      . In Garza v. Greyhound Lines, Inc., 1967, Tex.Civ.App., 418 S.W.2d 595 the Court reversed the trial court determination of dissimilarity on the grounds that an unauthenticated copy is inadmissible as proof of foreign law in the courts of Texas. Although it appears that appellee relied upon an unauthenticated copy of the Mexican codes to establish dissimilarity, Garza is inapplicable to this Erie-based proceeding since F.R.Civ.P. 44.1 clearly and properly permits the District Court to “consider any relevant material or sources” “in determining foreign law.” Rule 44.1 was intended to provide a uniform and liberal federal procedure for determining foreign law divorced from the limitations of conflicting state and former federal doctrines. See Wright and Miller, Federal Practice and Procedure §§ 2441-42, 44 (1971). See also Miller, Federal Rule 44.1 and the “Fact” Approach to Determining Foreign Law: Death Knell for a Die-Hard Doctrine, 65 Mich.L.Rev. 613 (1967).

      . Federal Labor Law, arts. 287-89, 293-94, 301, 502; Federal Civil Code art. 1915.

      . Federal Civil Code art. 1916.

      . Federal Criminal Code art. 8, 30, 31, 37-39.

      . On appeal appellant does not challenge the District Court’s dismissal of the claim for, conscious pain and suffering and funeral expenses on the ground of lack of jurisdiction for inadequate amount in controversy.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. George D. MERIWETHER, Defendant-Appellant.
    No. 72-2474.
    United States Court of Appeals, Fifth Circuit.
    Oct. 23, 1973.
    Rehearing and Rehearing En Banc Denied Dec. 7, 1973.

      Fournier J. Gale, III, Cabaniss, Johnston, Gardner & Clark, Birmingham, Ala., court appointed for defendant-appellant.
    Wayman G. Sherrer, U. S. Atty., Birmingham, Ala., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Dept, of Justice, Washington, D. C., Henry I. Frohsin, Asst. U. S. Atty., Birmingham, Ala., Robert E. Lindsay, Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

Meriwether was convicted by a jury for willfully attempting to evade his and his wife’s federal income tax for the years 1962, 1963, and 1964, by filing false returns in violation of 26 U.S.C. § 7201. We reversed that conviction and remanded the case for a new trial. Upon retrial, the government premised its case upon the same three-count indictment utilized in the first trial, but relied exclusively upon specific items of income received to prove its case, declining altogether to use the net worth theory. which we had held was insufficiently proven in the first trial. Again, Meri-wether was convicted by a jury on all three counts, and was sentenced to three concurrent three-year terms of imprisonment.

Prior to and during the indictment years, Meriwether was vice-president of the First National Bank of Tuscaloosa, Alabama, in charge of the installment loan department. The prosecution undertook to prove that Meriwether demanded and received money from specific bank customers as a condition for handling their commercial paper, and that these sums received were never reported as income. Meriwether allegedly received payments in varying amounts from J. B. Carl, Henry Dozier, and Ra-burn Hall from 1962 through 1964.

I

The bill of particulars claimed that Meriwether had received from J. B. Carl and his company, Dixie Air, Inc., a total of $8,436.12 in 1962. At trial, proof was offered that Meriwether had received $11,426.12 in 1962 from Carl. These sums represented significantly more than half of Meriwether’s allegedly unreported income during 1962, the period covered by Count 1 of the indictment. The alleged income from Carl being such a substantial portion of the government’s case on Count 1, the insufficiency of this evidence would require us to reverse the conviction as to this count.

J. B. Carl having died prior to the time of trial, the government’s ease concerning 1962 payments by Carl to Meriwether consisted entirely of circumstantial evidence. While it cannot be doubted that the jury could convict Meriwether of receiving these payments solely on the basis of circumstantial evidence, it could not convict him if this evidence was not “sufficient to exclude in the minds of the jury every reasonable hypothesis other than guilt of the defendant.” Ford v. United States, 210 F.2d 313 (5th Cir. 1954).

The sole evidence before the jury concerning the alleged payments by Carl to Meriwether came from Jim Kirby, a First National Bank employee in the installment loan department who had subsequently become vice-president in charge of that department. Kirby testified that particular cheeks made out to J. B. Carl were never deposited in the Dixie Air reserve account. He also explained in depth the mechanics within the bank of the reserve account agreement.

Dixie Air, Kirby testified, had entered into a dealer financing agreement with the bank. Under the terms of that agreement, the difference between the rate of interest charged by the bank and the rate charged by the dealer to its customer was to be withheld and deposited m a reserve account. This account protected the bank against contingent liability of the endorsing dealer, who would be liable for the commercial paper in the event of default by the purchaser of an airplane purchased from Dixie Air. Defendant Meriwether, as vice-president in charge of the installment loan department, was in 1962 responsible for preparation of the agreement setting up a four and a half percent reserve fund for Dixie Air. Thus, the jury could reasonably infer that Meriwether did know of Dixie Air’s obligation to deposit the checks in controversy in its reserve account. Kirby’s testimony also showed that, when the bank made out checks for the amount of the difference between the two rates of interest, these were approved at the bottom by Meriwether before being cashed at various teller’s windows by J. B. Carl.

Kirby refused, however, to draw any inference from the bank’s practices to the effect that Meriwether’s knowledge of the reserve agreement or approval of the checks would require that Meriwether investigate the status of Dixie Air’s reserve account. Moreover, noting that his testimony was derived only from the records of the bank, Kirby declined to infer that Meriwether had received any of the checks cashed by J. B. Carl which were not deposited, as the agreement required, in the reserve account. Despite Kirby’s disclaimers, the court admitted his testimony on this very limited basis:

The court, however, indicating that at this point in time it hasn’t been shown to be relevant to what the defendant is charged with, and that although it is allowed into evidence, that allowance is conditional upon there being other evidence presented in the case which might connect this to the defendant. (Emphasis added).

No such further evidence was ever introduced. The government does not contend that any further evidence was admitted concerning the payments to Carl, but argues that evidence concerning other specific transactions (payments by Dozier and Hall to Meriwether) gave the jury sufficient evidence to infer that Meriwether received Dixie Air’s reserve fund payments.

This evidence was not sufficient to go to the jury. There was not even a connecting inference between the cashing of the checks and any receipt of Meriwether of unreported cash income. J. B. Carl, from the evidence presented, could have kept the cash himself or could have channeled it back into Dixie Air for other purposes. The only theory which might support the inference the jury evidently drew would be that of “once a thief, always a thief.” To convict a man of a felony on no more than this theory plus the fact that he was a-responsible employee in the bank where the check was cashed would permit a conviction to be based on pure surmise. There is just nothing here to permit the jury the jury to draw an inference that Meriwether received funds illegally from Carl.

‘Under similar circumstances, we have held that evidence was insufficient to convict a defendant. In Ford v. United States, supra, a witness testified that she had left $100 in cash “at the defendant’s office” and that she had made regular payoffs “to the police department” of $100 per month. The connection sought to be made was that the defendant, a former police chief, had received these payoffs. The court held that there was insufficient evidence connecting the defendant with the payoffs, and that admission of this evidence was both erroneous and highly prejudicial.

There was no sufficient proof that the defendant received the payoffs or any part of them, and a conclusion to that effect cannot be permitted to be based upon mere conjecture or suspicion. We have previously had occasion to comment on the necessity for safeguarding a defendant against the prejudice and danger inherent in this type of testimony. Montgomery v. United States, supra, 203 F.2d [887] at page 891. . . .
The evidence sufficiently disclosed that in the defendant’s office of Chief of Police he had opportunities of receiving income from graft, payoffs, or other illegal sources. There can, of course, be no presumption that the defendant was guilty of such gross misconduct as to be the recipient of such ill gotten gains. The presumption is to the contrary. It was nevertheless within the jury’s province to say whether that presumption had been overcome, or to infer that the defendant had some other source of income, from the testimony that the expenditures so far exceeded the available resources disclosed by the evidence, and from the evidence that such expenditures could not be accounted for by accumulated assets or- by non-taxable receipts. But to undertake to aid the jury in this function by the admission of testimony of this woman as to payoffs with which the defendant was not shown to be connected was both erroneous and highly prejudicial. Ford v. United States, 210 F.2d at 317-318. See also Blumberg v. United States,

222 F.2d 496 at 500 (5th Cir. 1955).

We cannot view this as a ease in which there was evidence that the illegal payments were known to have been received by the defendant, as in Azcona v. United States, 257 F.2d 462 (5th Cir. 1958), or a case in which the jury was admonished to disregard the prejudicial testimony and where independent evidence of unreported income during the indictment period was sufficient to show unreported taxable income. United States v. Ford, 237 F.2d 57, 67 (2nd Cir. 1956). We therefore reverse the conviction as to Count 1 of the indictment.

II

On Count 3 of the indictment, the government alleged that Meriwether had in 1964 received $3,000 in unreported income from Henry Dozier. The evidence adduced to support this charge was totally insufficient, a position which the government virtually admits. In response to a question by the prosecution as to whether this amount was paid to Meriwether on February 4, 1964, Dozier said:

A. I do not know I couldn’t say this particular one. I would have to refer back to my books.

Thereafter, the trial court allowed Dozier to review testimony at the first trial, after which the following exchange occurred:

Q. Having read those particular passages referred to, can you tell us whether or not your recollection is refreshed, whether or not you actually paid the $3,000.00 as of February 4, 1964, to the defendant, George Meriwether ?
A. The only way I can answer it honestly is if it shows on my journal sheets, that is correct. From memory I cannot say about this check. But if it is on any journal, that is correct.

The journal sheets were never admitted in evidence, and Dozier, the sole witness on Count 3 of the indictment, was thus unable to testify as to this $3,000 payment. There was, therefore, no evidence upon which the jury could have found Meriwether guilty on Count 3 and this count should not have been submitted to the jury.

Ill

Having reviewed and carefully studied all of defendant’s contentions, we are in the position of reversing his convictions on Counts 1 and 3 of the three-count indictment, leaving only the second count standing. This situation raises the issue of cross-count prejudice. Although we find that there were no errors committed with respect to the second count itself, there is the possibility that evidence introduced with respect to the first and third counts fatally “infected” the deliberations about the second count.

Defendant argues that Count 2 must be reversed for two reasons (in addition to his arguments relating to Count 2 alone, which we reject). First, he argues that evidence was introduced with respect to the first and third counts which would have been irrelevant had he been tried on the second count standing alone. This árgument is without merit because the trial court clearly instructed the jury that each of the counts, must be considered by itself, and each one must be supported by sufficient evidence and proven beyond a reasonable doubt. Whenever a defendant is tried on a multi-count indictment there is the possibility that the jury will infer guilt on all counts from guilt on one of the individual counts, but this danger has not led us to abandon the practice of using multi-count indictments in proper circumstances.

In addition, we take into consideration the fact that the second count was by far the most substantial of the three. The amount by which defendant’s actual income is alleged to have exceeded his reported income is more than $14,000 for that year, while the surplusage in Count 1 was only a little more than $7,000 and in Count 3 it was less than $2,700. The excess tax alleged to be due in Count 2 was more than $4,600, while in Count 1 it was a little more than $2,000 and in Count 3 it was less than $600. There was ample evidence to support the conviction on this count, and we see nothing to convince us that consideration of the other two counts improperly affected conviction on this count.

We do not understand defendant to argue that it was improper to use a multi-count indictment against him in the first instance, and indeed, such an argument would be unavailing. All three counts were for violations of the same statute allegedly committed in three consecutive years. There was nothing improper about trying defendant for all three alleged crimes in the same proceeding.

Defendant also argues, that the introduction into evidence of Government Exhibit 179 was error requiring reversal of the second count. The exhibit is a three-page Summary of Income, Cash Deposits and Cash Expenditures of the defendant, which provides a month-by-month description of the financial dealings of the defendant for the years in question. Defendant’s allegations of error with respect to the chart fall into two categories. First, he complains of specific items of misinformation included and items not supported by the evidence which were included in the chart. In addition, he argues that admission of the chart into evidence was prejudicial because it failed to make any allowance for cash on hand at the beginning or end of the taxable years.

Each of the allegedly incorrect entries related to the first and third counts of the indictment. Because we reverse defendant’s conviction on those counts on other grounds, the errors in the chart are of no moment, unless improper admission of the sections of the chart dealing with the first and third counts infects the section of the chart dealing with the second count. But we find that this is not the case. The chart was actually three separate sheets of paper, each dealing with a separate year. In fact, the three pages are stapled together, so it is difficult to even look at all three pages simultaneously. The district judge instructed the jury correctly and explicitly that they were to consider the merits of each count of the indictment separately, and there is no reason to think that they failed to follow his instructions. The admission of summarizing charts such as Exhibit 179 rests in the discretion of the trial court, both abuse of discretion and resulting prejudice being required for reversal. Baines v. United States, 426 F.2d 833 (5th Cir. 1970). Appellant has demonstrated neither.

Appellant has also alleged that the chart was defective because it did not include figures for cash on hand at the beginning and the end of each taxable year. But this allegation would have merit only in a case in which the government used a net worth or cash expenditures method -of proof. Here, unlike the first trial of this case, the government relied entirely on the specific items method, attempting to show that appellant received specific sums from specific people on specific occasions. This reliance was made explicit in the government’s bill of particulars and ably explained in the court’s charge to the jury. In such a ease, the failure to include figures for net worth or cash on hand at the beginning and end of the taxable years cannot possibly have prejudiced the defendant.

IV

Defendant also alleges that the government violated F.R.Crim.P., Rule 17(b) regulating the issuance of subpoenas requested by defendants unable to pay for them in that an Assistant United States Attorney was present during defendant’s oral application to the court for subpoenas issued at government expense. Before its amendment in 1966, the rule required that all defendants proceeding in forma pauperis who request subpoenas issued at government expense must support such requests with affidavits “in which the defendant shall state the name and address of each witness and the testimony which he is expected by the defendant to give if subpoenaed, and shall show that the evidence of the witness is material to the defense . . ..” The difficulty with this procedure was that it required indigent defendants to reveal many of the theories of their defense to the prosecution, although defendants able to pay for witnesses were able to have blank subpoenas issued. F.R.Crim.P., Rule 17(a). To cure this inequitable situation, Congress amended the rule' in 1966 to provide that applications for subpoenas by defendants unable to pay for them be made to the court ex parte. The government asserts that ex parte means only that the prosecutor should not participate in the discussions about the subpoenas, although he may be present during the argument. But this interpretation of the rule conflicts with both the general understanding of the term ex parte, and with the purpose of the 1966 amendment to the rule. Black’s Law Dictionary (4th Ed., 1968) defines ex parte as meaning: “On one side only; by or for one party; done for, in behalf of, or on the application of, one party only.”

“In its more usual sense, ex parte means that an application is made by one party to a proceeding in the absence of the- other. [Emphasis added].” In addition, we would defeat the purpose of the amendment to the rule if we upheld the government’s contention. The ex parte provision of the rule was not intended to protect the defendant from opposition from the prosecutor; it was intended to shield the theory of his defense from the prosecutor’s scrutiny. Allowing the prosecutor to observe the defendant’s support of his motion permits this scrutiny, even when the prosecutor remains silent. The government urges us to hold that because the prosecutor was excused from the room on several occasions when the defendant had to explain to the judge why he wanted a certain witness to be subpoenaed, the procedure used did not require the defendant to reveal the “theory” of his defense. This we decline to do. The names of witnesses to be called by the defendant could easily aid the government in determining the strategy the defendant plans to use at trial. The government should not be able to obtain a list of adverse witnesses in the case of a defendant unable to pay their fees when it is not able to do so in the cases of defendants able to pay witness fees. When an indigent defendant’s case is subjected to pre-trial scrutiny by the prosecutor, while the monied defendant is able to proceed without such scrutiny, serious equal protection questions are raised, and it appears that a major reason for the amendment was to avoid such questions. See Douglas v. People of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) and Griffin v. People of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). We note that the Court of Appeals for the First Circuit has announced a like interpretation of the rule. Holden v. United States, 393 F.2d 276 (1st Cir. 1968). See also United States v. Sutton, 464 F. 2d 552 (5th Cir. 1972).

The district judge to whom this case was transferred after the first trial seems to have accepted defendant’s interpretation of the rule, for on May 10, 1972, he ruled that all further proceedings under the rule would be held in the absence of the prosecutor. However, the court held that the defendant had waived all objections to past violations of the rule in spite of the fact that the defendant on February 7, 1972, had filed a motion to exclude the prosecutor from the Rule 17(b) proceedings.

It is not necessary to decide the questions of waiver, however, since in order to obtain a reversal of the conviction, defendant is required to show that he was prejudiced by the failure to comply with the rule. Here he has failed to make such a showing. The major factor which causes us to reach this conclusion is that this was not the first, but the second trial of the same charges against the defendant. Although the theory of the prosecution was different on re-trial, the essential facts sought to be proved by the government - were virtually the same. In both eases, the government attempted to show that the defendant received payments from customers of the bank in return for the processing of their loan applications, and that the defendant failed to report these sums as income on his federal income tax return. Most of the witnesses subpoenaed by the defendant were already known to the government. In short, although the presence of the Assistant United States Attorney at application proceedings held under Rule 17(b) violates the rule, we find that the defendant in this case was not prejudiced by such breach, and his conviction cannot be reversed on these grounds.

We have examined the first of defendant’s arguments, including the allegations that certain statements were taken from him in violation of the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and find them all to be without merit.

The judgment with respect to the first and third counts of the indictment is reversed and the case is remanded for further proceedings not inconsistent with this opinion; the judgment with respect to the second count of the indictment is affirmed.

      . United States v. Meriwether, 440 F.2d 753 (5th Cir. 1971).

      . Count 1 (1962) charged that Meriwether reported their joint taxable income as $9,522.72, on which the tax owed was $2,065.91, when he knew that their joint taxable income was $16,542.72, on which the tax owed was $4,104.52.
      Count 2 (1963) charged the reported taxable income as $9,803.67, as compared with actual income of $24,005.58, and reported tax to be $2,137.04, as against tax owed of $6,790.40. Count 3 (1964) charged that the income reported was $6,274.32, as against actual joint taxable income of $8,948.62, with tax reported of $1,127.86, as against tax owed of $1,674.43.

      . The indictment also alleged that Meriwether received $6,500 from Dozier and $250 from Ball during 1962.

      . Evidence concerning payments by Dozier to Meriwether from another reserve account of a different company can, of course, prove nothing concerning payments by Carl to Meriwether. They might, however, under proper circumstances, show that Meriwether had an obligation to handle reserve accounts in a particular way.

      . Q. Now, Mr. Kirby, in your sixteen years experience in the bank, . . . is it not the custom and practice and was it not the custom and practice at the time these transactions took place that when a dealer in aircraft such as this or any other dealer of vehicles brings to the bank a deal as I believe it is called in the trade or a contract which it sells to the bank, is not that dealer paid a commission?
      A. We rather refer to it as a finance participation rather than a commission. The difference between the amount of interest charged by the dealer and the amount that we charge to handle the paper.
      Q. Now with regard — whatever you call it, he is paid an amount of money for bringing that deal to the bank, is he not?
      A. Yes, sir.
      Q. Now isn’t that what happened here in each of these cases, isn’t these—
      A. Checks were written for the amount of difference between the interest charged and the amount that we got for handling it.
      Q. That’s right. In other words, that was his commission — well, call it participation in the financial arrangements, that was his participation in the financial arrangement?
      Q. That was his commission paid for bringing to the bank a piece of paper which the bank bought?
      A. Yes, sir.
      Q. Now that really isn’t unusual, that is the way it is done, isn’t it?
      A. Ordinarily this money is placed in the reserve against—
      Q. Well, if there is an agreement to place it in reserve?
      A. Yes, sir.
      Q. Then he still is being paid, and what he does with it then or whatever agreement has been made is beyond the agreement of paying him ?
      A. First there is an agreement to pay him, yes, sir.
      Q. Then you have another agreement that when we pay you, you must take that amount and place it over here as security for bad debts, now that is another agreement, is it not?
      A. Right. . . .
      Q. You don’t mean — all these checks were made payable to Dixie Air or to J. B. Carl?
      A. Yes, sir.
      Q. And all of these checks were cashed by J. B. Carl?
      A. Cashed or handled in L & D.
      Q. He asked you a question about how could you get an official check in L & D 2, that is installment loan which we are talking about?
      A. Yes, sir.
      Q. You can cash a check down there, can you not?
      A. Yes, sir, you can cash a check.
      Q. And that is what you had here, is it not?
      A. I won’t say that. I didn’t say that. It was handled in the department. It could have been — could have been cashed, could have been deposited in the L & D 2. This stamp only shows this stamp went through L & D 2 on that particular day. [The teller’s stamp].
      Q. There is nothing on those checks to show it went to Mr. Meriwether, is there ?
      A. No, sir.
      Q. Nothing at all, is it?
      A. No, sir.
      Q. And you don’t mean by your testimony to infer that this money went to Mr. Meriwether are you, sir?
      A. Sir, I’m testifying from the records of the bank.
      Q. I just want to get this straight. As far as the records show, as far as your knowledge is concerned, these checks were either paid to Mr. Carl, cashed by him and paid to him, or either handled through the L & D?

      A. Yes, sir.

      Q. There i's nothing wrong with the bank —nothing wrong with cashing a bank official checks, in the Loan Department is there?
      A. No, sir . . . .
      Q. Would you just glance down at it [the Dixie Air reserve account] and see if it doesn’t appear to be a — an average balance in that reserve account of about $30,000?
      A. The sheets I have here would be an average of $30,000 plus.
      Q. At least $30,000?
      A. Yes, sir. . . .
      Q. . . . I will ask you do the checks show what Mr. Carl did with the money?
      A. No, sir.

      . The government’s brief includes the following statement: “The Government is unable to say with certainty that there is no merit in taxpayer’s contention . . . that the specific items proof for 1964 was insufficient to establish a deficiency in reported income and tax.”

      . Rule 17 (b) provides :
      Defendants Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government.

      . The advisory committee notes to rule 17 include the following observation: “Criticism has been directed at the requirement that an indigent defendant disclose in advance the theory of his defense in order to obtain the issuance of a subpoena at government expense while the government and defendants able to pay may have subpoenas issued in blank without any disclosure. See Report of the Attorney General’s Committee on Poverty and the Administration of Criminal Justice (1963) p. 27.”


author: DOYLE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Wesley BREWER, Defendant-Appellant.
    No. 73-1102.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted June 20, 1973.
    Decided July 27, 1973.
    Rehearing Denied Aug. 17, 1973.

      John Baum, Oklahoma City, Okl. (Joe Roselle, Oklahoma City, Okl., on the brief), for defendant-appellant.
    O. B. Johnston III, Asst. U. S. Atty. (G. Phil Harney, Atty., Chief Counsel Office, Internal Revenue Service, and William R. Burkett, U. S. Atty., on the brief), for plaintiff-appellee.
    Before SETH, JONES and DOYLE, United States Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   DOYLE, Circuit Judge.

Defendant-appellant has here appealed his convictions on charges of failure to file income tax returns for the years 1967, 1968, 1969 and 1970 contrary to 26 U.S.C. 7203.

His contentions are:

First, that the trial court erred in overruling his motion to suppress.

Second, that the verdict is not supported by sufficient evidence on the issue of his place of residence.

Third, that the district court lacked both jurisdiction and venue.

Fourth, that the instruction on venue and jurisdiction was erroneous.

Fifth, that the evidence was particularly insufficient as to Count four.

Virtually all of the defendant’s contentions revolve around the trial court’s ruling that the statements of defendant-appellant to the special Internal Revenue agent were admissible. Defendant maintains that his constitutional rights were violated because of the inadequacy of the warning given by the agent pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1968).

I.

The interview in question was conducted at the Federal Courthouse in Miami, Florida on August 12, 1970. Before the interview the agent advised defendant that under the Fifth Amendment the agent could not compel defendant to answer any questions or furnish any information if such answers or information tended to incriminate him. Defendant was also told that any statements or information provided could be used against him in a criminal proceeding. He was also told that he was entitled to the assistance of counsel, but he was not told that he could have an attorney appointed to represent him if an attorney could not be obtained. It was this latter' deficiency which is stressed as the factor which rendered the statements inadmissible. The trial court denied the motion to suppress the statements on the basis that the defendant was not in custody and, therefore, a Miranda warning was not required.

The facts are that prior to the interview with the defendant in Miami, the agent had tried to interview him in Oklahoma City. The defendant had actually insisted that the meeting be in Florida on the basis that he had two attorneys in Miami who could be present. The agent agreed to the Florida interview and also agreed to the defendant’s condition that he reserved the right to invoke his constitutional rights and decline to answer any question on the basis that he desired to confer with counsel before answering. Admittedly the defendant was free to leave at any time during the interview.

The circumstances here present no violation of the doctrine of Miranda v. Arizona, supra. We are not dealing with a case in which a person has been the victim of coercive surrounding conditions and atmosphere. Instead the defendant fixed the terms and conditions of the interview and stated that he had counsel available and would reserve his answers until he had consulted his lawyers. Since he had lawyers, and since his right to consult them was conceded, we see no necessity for the agent’s warning him as to his right to have counsel appointed. See Miranda v. Arizona, supra, at 473, 86 S.Ct. 1602 n. 43; United States v. Merrick, 464 F.2d 1087, 1091 (10th Cir. 1972); United States v. Mon-tos, 421 F.2d 215, 223 (5th Cir.), cert, denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970); United States v. Messina, 388 F.2d 393, 395 (2d Cir.), cert, denied, 390 U.S. 1026, 88 S.Ct. 1413, 20 L.Ed.2d 283 (1968).

II.

Next we consider the point that the evidence is insufficient to establish that defendant’s legal residence was 2204 Southwest 71st Street, Oklahoma City, Oklahoma, the place where his wife and children resided. Ordinarily criminal prosecutions must be brought in the district in which the offense was committed, and federal income tax returns must, by statute, be filed in the place of legal residence of the taxpayer or at a service center serving that district, 26 U.S.C. § 6091(b)(1) (A) (i) and (ii), or the principal place of business of the taxpayer. The prosecution must then establish beyond a reasonable doubt that the defendant’s residence in this, a tax case, was Oklahoma City. This is essential to establish jurisdiction and venue. United States v. Gorman, 393 F.2d 209, 213-214 (7th Cir.); cert, denied, 393 U.S. 832, 89 S.Ct. 102, 21 L.Ed.2d 103 (1968); Yarborough v. United States, 230 F.2d 56, 58-59 (4th Cir.), cert, denied, 351 U.S. 969, 76 S.Ct. 1034, 100 L. Ed. 1487 (1956); Bowles v. United States, 73 F.2d 772, 773-774 (4th Cir. 1934), cert, denied, 294 U.S. 710, 55 S. Ct. 506, 79 L.Ed. 1245 (1935); United States v. Commerford, 64 F.2d 28, 32-33 (2d Cir.), cert, denied, 289 U.S. 759, 53 S.Ct. 792, 77 L.Ed. 1502 (1933). See also United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1915); Weaver v. United States, 298 F.2d 496 (5th Cir. 1962).

The term “residence” has been equated with domicile. See Pietro Crespi, 44 B.T.A. 670, 674 (1941); Samuel W. Weis, 30 B.T.A. 478, 486 (1934); L. B. Peeples, 27 B.T.A. 879, 882 (1933); Gates v. Commissioner, 199 F.2d 291 (10th Cir. 1952). This requires residence and intention to remain, and intention is a highly important element. See Gates v. Commissioner, supra. Here the prosecution relied upon the defendant’s statements in which he gave his Oklahoma City address as his permanent one. He made this statement in a deposition to the Securities and Exchange Commission in 1968 and also to the Miami Police in the course of a homicide investigation, and he gave it to the magistrate on the occasion of his appearance in this ease. He, together with his wife, owns the property at the Oklahoma City address. Admittedly the defendant was not shown to have resided in Oklahoma City on a continuous basis. He did visit there on occasion. He was also shown to have owned a house in Florida where he conducted his business. From a review of the conflicts in the evidence, it was open to the jury to determine that his residence was indeed in Oklahoma City. See District of Columbia v. Murphy, 314 U.S. 441, 455-458, 62 S.Ct. 303, 86 L.Ed. 329 (1941). We must view the evidence now in a light most favorable to the government. See United States v. Yates, 470 F.2d 968, 970 (10th Cir. 1972).

We have examined the trial court’s jury instruction on this subject and find that it is adequate.

III.

The final point which deserves some comment is the defendant’s contention that the evidence was insufficient to establish that he was required to file a return in the year 1970. The only evidence which was offered to establish that defendant had sufficient income to require the filing of a return was the sale of 2,000 shares of Control Metals Corporation stock and receipt of $17,000 for it plus the distribution of these proceeds, but this does not establish anything more than the fact that the defendant was a person of some means. It fell short of establishing that any part of these proceeds constituted income. It was a capital transaction. Therefore, judging the evidence in a light most favorable to the government, we conclude that it was insufficient. See United States v. Schwartz, 390 F.2d 1 (3d Cir. 1968); United States v. Besase, 373 F. 2d 120 (6th Cir. 1967); United States v. Fenwick, 177 F.2d 488 (7th Cir. 1949). Cf. Holland v. United States, 348 U.S. 121, 137-139, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

The judgment is generally affirmed, but is reversed as to the conviction on count four. The cause is remanded to the trial court with instructions that this count be dismissed. The case is also remanded to the trial court for reconsideration of the sentence imposed in light of the court’s decision in respect to count 4.