author: GEE, Circuit Judge:

text:
    UNITED STATES of America, Petitioner-Appellee, v. DUNHAM CONCRETE PRODUCTS, INC., Louisiana Ready-Mix Company, Anderson-Dunham, Inc., Respondents-Appellants. UNITED STATES of America, Petitioner-Appellant, v. Ted F. DUNHAM, Jr., Respondent-Appellee.
    No. 74-1903.
    United States Court of Appeals, Fifth Circuit,
    Sept. 26, 1974.
    James A. McPherson, New Orleans, La., Marcus A. Hollabaugh, Washington, D. C., Victor A. Sachse, Baton Rouge, La., for respondents-appellants.
    James D. Ca'rriere, Asst. U. S. Atty., New Orleans, La., Carl D. Lawson, Atty., Dept, of Justice, Washington, D. C., for petitioner-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.
   GEE, Circuit Judge:

This is a sequel to United States of America v. Dunham Concrete Products, Inc., et al., 475 F.2d 1241 (5th Cir. 1973). In that opinion we affirmed Sherman and Hobbs Act convictions of Ted Dunham, Jr., and certain of his corporations stemming from Dunham’s use of labor racketeers against persons who purchased supplies from his competitors. Certiorari was denied. Dunham and the corporations then filed various motions for post-conviction relief. Dunham’s •§ 2255 motion was granted and a new trial ordered as to him; all corporate motions were denied. The United States appeals the Dunham order, the corporations theirs. We reverse as to Dunham and affirm as to the corporations.

May the United States Appeal?

Dunham questions our jurisdiction to entertain this appeal. It is said that the order granting him a new trial is not “final” in the sense required by § 2255, and that the appeal is thus piecemeal under such authorities as Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963); Collins v. Miller, 252 U.S. 364, 40 S.Ct. 347, 64 L.Ed. 616 (1920), and United States v. Bishopp, 286 F.2d 320 (2d Cir. 1960). And while he does not frankly avow a view that the appealability of a § 2255 order is to be determined by the finality of its effect on the underlying criminal proceeding, he does seek to find footing halfway across the abyss: finality, it is said, “ . . . has meaning only in the context of the original criminal proceeding . . . . ”

We are not persuaded. The pertinent language of § 2255 runs:

“An appeal may be taken . as from a final judgment on an application for a writ of habeas corpus.”

This Circuit has long taken the view that § 2255 proceedings are, like habeas matters, civil actions mainly standing on their own bottoms and that when an order is entered in the § 2255 proceeding which satisfies established notions of finality, either party prejudiced may appeal as in other civil actions. United States v. Williamson, 255 F.2d 512, 515-516 (5th Cir. 1958), cert. denied 358 U.S. 941, 79 S.Ct. 348, 3 L.Ed.2d 349 (1959). What results is no more a piecemeal appeal than a § 2255 proceeding is a piecemeal trial. Other circuits have taken similar views, e. g. Gray v. Swenson, 430 F.2d 9 (8th Cir. 1970); United States v. Kelly, 269 F.2d 448 (10th Cir. 1959).

Collins is not to the contrary. It involved a single judgment in a habeas proceeding which denied the writ on one hand but granted it on two others, remanding these for further proceedings. The judgment was thus not final for-purposes of the habeas corpus proceeding “. . . since [as the anonymous author of the headnotes correctly concludes] only one branch of the case having been disposed of below, none of it is reviewable.” Insofar as Bishopp may stand for a reading of Collins as resting on grounds other than the incompleteness of the habeas corpus proceeding itself, we decline to follow it. Nor do we view Andrews as contra: there the United States’ attempt to appeal from a resentencing order was dismissed since,- as Mr. Justice Stewart noted, “ . . . there could be no final disposition of the § 2255 proceedings until the petitioners were resentenced.” 373 U.S., at 340, 83 S.Ct., at 1240 (emphasis added). The Court notes also that, since until the petitioners are re-sentenced it cannot be known whether the Government is hurt, the Andrews situation demonstrates the basis of the rule against piecemeal appeals.

In our case the § 2255 proceedings have ended with a order requiring the Government, if it wishes to persist in an effort to punish Dunham, to return to Square One and recommence its effort ab initio. A more final termination of the § 2255 action can scarcely be imagined ; what possible further purpose could it serve? We have jurisdiction.

Dunham’s New Trial

The district court vacated Dun-ham’s conviction and sentences, being unable to say beyond a reasonable doubt that the jury did not convict him of non-existent crimes: “conspiracy to attempt to monopolize” and “conspiracy to attempt to extort.” Neither of these acts being denounced by law, the court envisioned a want of due process in the .possibility that Dunham had been sentenced for non-criminal acts. How the sentencing court found itself in such a posture may be thought to require some explanation.

The indictment of Dunham and his corporations comprised five counts. Count 1 charged conspiracy in restraint of trade (Sherman Act § 1), Counts 2 and 3 conspiracy to monopolize and attempt to monopolize, respectively (Sherman Act § 2), and Counts 4 and 5 conspiracy to extort and an attempt to extort, respectively (Hobbs Act). In response to a motion to strike Count 3, the court ruled that it charged an attempt to monopolize and not a conspiracy to attempt to do so. The United States has taken the position that Count 5 should be similarly construed, to charge an attempt to extort. Since Counts 3 and 5 are of especial significance, we set them out so far as pertinent.

At trial the jury was correctly instructed, inter alia, that attempts to monopolize may be by concerted as well as by unilateral action, so that a member of a conspiracy to monopolize may be guilty of an attempt. American Tobacco Co. v. United States, 328 U.S. 781, 784, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). A form for recording their verdict was also furnished them, however, which characterized Counts 3 and 5 in the precise manner of Dunham’s motion to strike which the court had overruled:

We the jury having been duly selected, empaneled, and sworn as trial jurors in the above captioned case hereby return the following verdict:

Ted F. Dunham, Jr.
Count 1 — Conspiracy to restrain trade in violation of Section 1 of the Shermán Act (15 U.S.C. Section 1) Guilty_ Not Guilty-
Count 2 — Conspiracy to monopolize in violation of Section 2 of the Sherman Act (15 U.S.C. Section 2) Guilty_ Not Guilty
Count 3 — Conspiracy to attempt to monopolize in violation of Section 2 of the Sherman Act (15 U.S.C. Section 2) Guilty_ Not Guilty-
Count 4 — Conspiracy to extort (18 U.S.C. 1951) Guilty_ Not Guilty
Count 5 — Conspiracy to attempt to extort (18 U.S.C. 1951) Guilty_ Not Guilty

This form was prepared by the same counsel for Dunham who signed the motion to strike and tendered to the court at an unreported conference before the jury was instructed. Government counsel, according to affidavits in this record, remonstrated with the court, pointing out that the form adopted the erroneous construction of Count 3 which Dunham’s counsel had pressed upon the court in his motion to strike and which the court had overruled, construing Count 3 to charge an attempt to monopolize. In apparent desperation, government counsel offered as a substitute “attempt to monopolize by co-conspirators.” Counsel for Dunham, however, maintained his suggested form was correct. Unaccountably, the court adopted it as presented and sent it out with the jury.

Later in the day the jury advised the court, by hand note, that they had found Dunham guilty on Count 3. Asked by Dunham’s counsel to instruct the jury that this “preliminary” verdict was not binding, the court did so. The jurors then submitted their verdict on the erroneous form, finding each defendant not guilty of Count 1, guilty of Counts 3 and 5, and reaching no verdict on Counts 2 and 4. No complaint was made on appeal of the form of verdict. As noted, however, after the appellate process had run its course, Dunham’s counsel successfully advanced as constitutional error used by the jury of the verdict form which they had drafted, pressed upon the court over Government objection, and — in effect — forced the jury to use by the instruction about their original, handwritten verdict on Count 3.

In such a context, interesting questions of invited error and deliberate by-pass of appellate remedies are obviously raised. Since we are, however, satisfied beyond a reasonable doubt that the error in wording of this form for recording the verdict did not contribute to Dunham’s conviction, we need not attempt them. Referring to the form, it is apparent that only four conceivable meanings can be ascribed to its Count 3 and Count 5 epitomes. Taking Count 3 as an example, they are:

A. Conspiracy to monopolize.

B. Conspiracy to fail to monopolize.

C. Attempt to monopolize.

D. Attempt to fail to monopolize.

Meanings B and D are nonsense; meaning A cannot have been intended since the jury was unable to agree on an answer to Count 2, which asked that precise question. Only meaning C is possible: Like reasoning applies to Count 5. We decline to construe the verdict as meaning the jury agreed on nothing or on nonsense “ . . . when a perfectly rational explanation for the jury’s verdict, completely consistent with the judge’s instructions, stares us in the face.” Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972). As to their claims grounded in the verdict form, the appealing corporate defendants stand on no better ground than Dunham. Their other contentions, which we have carefully considered, are likewise meritless.

Insofar as the judgment below vacates the convictions and sentences of Ted F. Dunham, Jr., and grants him a new trial, it is reversed. As to the other appealing defendants, it is affirmed.

Affirmed in part, reversed in part.

      . Dunham, through the corporations, dealt in concrete products in the Baton Rouge area. By his procurement, persons who patronized his competitors suffered labor difficulties unrelated to any legitimate labor grievance, destruction of thousands of dollars worth of concrete i>ipe, assaults by gangs of thugs employing clubs, chains and shotguns, etc.

      . 414 U.S. 832, 94 S.Ct. 65, 38 L.Ed.2d 66 (1973).

      . 28 U.S.C. § 2255.

      . [Count 3]
      22. Beginning early in 1966, tlie exact date being to the Grand Jurors unknown, and continuing thereafter up to and including the date of the return of this indictment, the defendants and co-conspirators have attempted to monopolize, the aforesaid interstate trade and commerce in violation of Section 2 of the Act of Congress of July 2, 1890 (15 TJ.S.C. § 2), commonly known as the Sherman Act.
      23. The aforesaid attempt to monopolize has consisted of doing the acts described in paragraph 11(a) through 11(f) inclusive which are hereby incorporated in this count with the same force and effect as if here set forth in full.
      [11. The aforesaid combination and conspiracy consisted of a continuing agreement, understanding, and concert of action among the defendants and co-conspirators to eliminate or limit competition in the sale and distribution of concrete products by concrete suppliers other than defendant concrete suppliers by:
      (a) Coercing purchases of concrete products ....
      Here follow, in subparagraphs (b) through (f), charges of various specific acts in furtherance of the conspiracy.]
      [Count 5]
      29. Beginning at the time of the initial stages of construction of a City Streets Sewerage Project, Plaquemine, Louisiana, on or about January, 1968, and continuing thereafter through the construction of said project, the exact dates being to the Grand Jurors unknown, in the Baton Rouge Division of the Eastern District of Louisiana and within the jurisdiction of this Court, defendants did willfully, unlawfully, and feloniously conspire and agree, each with the other, to obstruct, delay, and affect commerce, as that term is defined in Section 1951 of Title 18, United States Code, and the movement of cement and other building materials in such commerce, by attempting extortion (as defined in said section of United States Code), that is to say, said defendants attempted to obtain property in the value of the profits to be realized by defendant Anderson-Dunham, Inc., from the sale of concrete pipe to W. O. Bergeron as agent and representative of the W. O. Bergeron Construction Company, Inc., with his consent, induced by the wrongful use of fear, force and physical violence in that defendant Edward Grady Partin, acting in furtherance of the aforesaid conspiracy and agreement threatened to cause and did cause strikes, work stoppages and physical violence by members of the General Truckdrivers, Warehousemen and Helpers Local Union No. 5 at the site of the aforesaid project, unless and until such time as said W. O. Bergeron Construction Company agreed to purchase the total requirements of concrete pipe for said project from defendant Anderson-Dunham, Inc.

      . Even if the verdict form be viewed as part of the instructions to the jury, it might well be seen as falling within the rule of United States v. Manton, 107 F.2d 834 (2d Cir. 1939) and Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943).

      . It is the long-settled law of this circuit that such a deliberate by-pass can bar resort to habeas on § 2255, Larson v. United States, 275 F.2d 673 (5th Cir. 1960), and that the burden of showing absence of such a by-pass is on the petitioner. Nash v. United States, 342 F.2d 366 (5th Cir. 1965). See also Bonaparte v. Smith, 448 F.2d 385 (5th Cir. 1971) and Bowman v. Wainwright, 460 F.2d 1298 (5th Cir. 1972).

      . As required by Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

      . Which the jury may well have disregarded entirely, since its “preliminary” verdict of guilt on Count 3, at least, was returned on another paper entirely.


source: Caselaw Access Project

author: JOHN R. BROWN, Chief Judge: PER CURIAM:

license: Public Domain

text:
    A. P. WILSON, Plaintiff-Appellant, v. SEALTEST FOODS DIVISION OF KRAFTCO CORPORATION, Defendant-Appellee.
    No. 73-3246.
    United States Court of Appeals, Fifth Circuit.
    Sept. 19, 1974.
    Rehearing Denied Dec. 13, 1974.

      Jere D. McWinn, Jacksonville, Fla., for plaintiff-appellant.
    Guy O. Farmer, II, Gary P. Sams, James A. Bledsoe, Jr., Jacksonville, Fla., Robert G. Johnson, Janet Skaare Morris, Glenview, 111., for defendant-appellee.
    Before BROWN, Chief Judge, TUT-TLE, Circuit Judge, and YOUNG, District Judge.
   JOHN R. BROWN, Chief Judge:

Appellant, A. P. Wilson, brought this suit under the Age Discrimination in Employment Act, 29 U.S.C.A. § 621 et seq. alleging that his employer, the Sealtest Foods Division of Kraftco Corporation, unlawfully discharged him because of his age. At the conclusion of the presentation of Appellant’s case, the District Court granted the employer’s motion for a directed verdict. Appellant challenges this finding as well, as the District Court’s refusal to admit into evidence his testimony and that of certain Sealtest employees relating to statements made by company supervisors concerning hiring policies and job openings. We reverse.

Briefly, the facts are that Appellant Wilson had been employed by Sealtest at its Jacksonville, Florida location for thirty-three years, the last twenty-two of them consecutively. During this time he worked at various company jobs beginning as a special delivery salesman of dairy products and working his way up to the position of accounting clerk in 1970. In April of 1970, Appellant was told by his supervisor that Sealtest was gradually closing down its accounting offices in Jacksonville as well as other locations and that if Appellant desired continuous employment with the company he could become a production clerk in Sealtest’s Jacksonville warehouse. Appellant Wilson told his supervisor he had no experience as a production clerk but his supervisor assured him that was of no consequence and that he would be given time enough to learn the job. Several months after joining the production department, Appellant was told by his supervisor he was doing a good job.

On July 14, 1972, Appellant, who was then sixty-two years of age, was told by several company supervisors that the company had made a job survey and determined they would have to ask Appellant to take an early retirement effective August 5. Appellant testified he had never indicated to the company that early retirement was his desire but that he felt compelled to agree with the company’s suggestion. He was soon replaced by Joe Brown, a fifty year old accounting clerk who had been transferred to the Production Department several months prior to Appellant’s dismissal.

There has been much debate in both briefs and argument as to whether the recent Supreme Court case of McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, which outlines the elements of proof necessary to a prima facie case of racial discrimination under Title VII of the 1964 Civil Rights Act, has significant relevance to the present case. Appellant argues that any analogous showing that the employee was within the protected age group (40-60), was doing satisfactory work, was terminated without adequate explanation and replaced by a younger man, is sufficient to preclude a judge from directing a verdict against a plaintiff at the close of his case. Once such a showing is made, the burden then shifts to the employer to present some reasonable non-discriminatory explanation for its conduct. The Appellee, on the other hand, contends that McDonnell standards are not applicable in that McDonnell involved a situation where a demonstrably qualified Black man was not hired by a company even though there were no other qualified applicants competing for the job, whereas the present case involves the company’s selection between two employees for one position.

We agree with the Appellee that there are certain factual dissimilarities between McDonnell and the present case. We do not, however, find it necessary to rely solely upon McDonnell precedent in order to determine that the Appellant presented sufficient evidence to prohibit the District Court from directing a verdict against him. We simply state that in the particular procedural framework within which this case is presented, a showing that the Appellant was within a protected class, was asked to take early retirement against his will, was doing apparently satisfactory work, and was replaced by a younger person, will not permit dismissal at such an early stage of the trial proceeding. A minimal showing of these analogous McDonnell factors justifies some explanation on the part of the employer.

The Age Discrimination in Employment Act requires that the complainant prove the employer discharged him or her because of such individual’s age. It is possible that in the presentation of the employer’s case, further evidence relating more directly to the requisite specific intent to discriminate might be adduced during cross-examination by the Appellant. We cannot foreclose this possibility. It may be that the company in this case had an impermissible intent when discharging the Appellant which can only be judged from viewing the evidence as a whole. U.S.Const. Amend. VII; Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365; Texaco, Inc. v. Lir-ette, 5 Cir., 1969, 410 F.2d 1064; Liberty Mutual Ins. Co. v. Davis, 5 Cir., 1969, 412 F.2d 475.

We wish to additionally emphasize that all we are presently holding is that the District Court erred in directing a verdict at the close of Appellant’s case. Should the evidence at the end of the Appellee’s case be such that it is without contradiction that the company in fact was forced simply to choose one man over another and that the choice was not at all tainted with the impermissible criteria of age — then the District Court would be correct in directing a verdict for the Appellee at the end of all the evidence.

The Appellant also contends that the District Court erred in excluding certain testimony of Appellant and other company employees relating to company hiring policies on the basis of irrelevance and immateriality.

In a proffer Appellant sought to prove that Joe Brown, the eventual replacement for Appellant after his termination, would testify that when he was hired in 1957 he was told by the company personnel manager that the position which he sought was usually held by younger men. Brown was thirty-four at the time. Since the conversation took place almost fifteen years before the alleged discrimination against Appellant, the District Court was well within its discretion to exclude such testimony. Fitzgerald v. United States Lines Co., 2 Cir., 1962, 306 F.2d 461, rev’d on other grounds, 1962, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720, reh. denied, 1963, 375 U.S. 870, 84 S.Ct. 26, 11 L.Ed.2d 99; Miller v. Alexandria Truck Lines, Inc., 5 Cir., 1960, 273 F.2d 897, opinion corrected and reh. denied, 1960, 274 F.2d 942.

Appellant further attempted to submit testimony of Rupert Gladden, an operating engineer who worked on productions machines in a separate section of the plant from where Appellant worked. Appellant asserts that Gladden would testify that their mutual supervisor told Gladden he wanted “younger men” in the production department. The job of production clerk, however, involves the use of machinery whereas the job Appellant held, that of accounting clerk, involved merely clerical duties. This distinction in itself might be grounds upon which the District Court was justified in excluding the testimony on the basis of relevance. We do not, however, preclude the possibility that the District Court may wish to reconsider the admission of such testimony in the event new evidence is presented by the Appellant on remand of this case that would tend to heighten its relevancy.

Finally, the Appellant urges that his own testimony attempting to establish that the company had a job opening-for a laboratory technician at approximately the same time Appellant was dismissed should not have been excluded because it tended to show the bad faith of the company in not offering him the job. We agree with the District Court and the Appellee that the connection between the alleged opening of the job of lab technician and the failure of the company to offer the position to the Appellant as being evidence of discriminatory intent was tenuous enough to sustain a finding of nonrelevance. United States v. Ravich, 1970, 2 Cir., 421 F.2d 1196, cert. denied, 1970, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66; 32 C.J.S. Evidence §§ 435, 436 (1964); McCormick, Evidence § 185, at 440 n. 35 (2d ed. 1972).

Reversed.

ON PETITIONS FOR REHEARING

PER CURIAM:

Both petitions for rehearing indicate that the parties read our opinion to foreclose the availability of a full eviden-tiary hearing on the merits of the case. The opinion was meant to have no such import. We explicitly held that appellant’s case called for no more and no less than a hearing of all the evidence.

It is ordered that the petitions for rehearing filed in the above entitled and numbered cause be and the same are hereby denied.

      . 623. Prohibition of age discrimination.— (a) It shall be unlawful for an employer—
      (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

      . This is not to say that a mere showing by the plaintiff that he is within a protected group and has been dismissed without explanation without more will require reversal under the same circumstances.

      . See note 1 supra.

      . See Curtis v. Loether, 1974, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260; making the Seventh Amendment right to a jury trial applicable to actions enforcing statutory rights for damages in a court of law.


author: BROWN, Chief Judge:

text:
    Albert ROELOFS, Jr., et al., Plaintiffs-Appellees, v. UNITED STATES of America et al., Defendant-Appellant, The Travelers Insurance Company, Intervenor.
    No. 72-3475.
    United States Court of Appeals, Fifth Circuit.
    Sept. 16, 1974.

      Donald E. Walter, U. S. Atty., D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., Morton Hollander, Chief, Appellate Sec., James C. Hair, Michael Kimmel, Attys., Civ. Div., U. S. Dept, of Justice, Washington, D. C., for defendants-appellants.
    Wilton H. Williams, Jr., Shreveport, La., for intervenor, Travelers Ins. Co.
    Kenneth Rigby, Shreveport, La., for Roelofs.
    Jack C. Benjamin, New Orleans, La., for Durham.
    L. L. Lockard, Shreveport, La., for Montgomery et al.
    James J. Thornton, Jr., Nesib Nader, Hugh M. Stephens, Shreveport, La., for Tewell et al.
    Donald R. Miller, Paul R. Mayer, Shreveport, La., for Thomas et al.
    Lewis Weinstein, Shreveport, La., for McKinney, Peterson, Holland and Jackson.
    Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.
   BROWN, Chief Judge:

This interlocutory appeal raises an interesting and novel problem under the Federal Tort Claims Act. The question is whether the Government may invoke a defense available to private employers under the Louisiana Workmen’s Compensation Statute despite the fact that the United States, due to its preeminent sovereign immunity, could not be compelled to comply with the obligations of a private employer under the statute. The District Judge held that to permit the Government to raise the defense envisioned by the statute was the equivalent of the Government subjecting itself to suit under a local compensation system — an unauthorized waiver of sovereign immunity not contemplated by Congress. He rejected the defense. Disagreeing with these conclusions, we reverse.

To bring the problem closer to earth it is one of harmonizing the FTCA and the Louisiana Compensation Act. Under FTCA the tort liability of the Government is extended to tort claims for negligent damage to person or property “under circumstances where the United States, if a private person, would be liable ... in accordance with the law . . .’’of the place of the tort. Tied as it is to liability of a private actor under local law, the case brings in famed § 6 of the Louisiana Compensation Act.

§ 6 imposes on the party for whom work is being done by a contractor (or subcontractor) the obligation of paying workmen’s compensation to an injured employee of such contractor/subcontractor. The key is whether in the work at hand the contractor/subcontractor is doing work “. . . which is a part of [the] trade, business, or occupation” of the. party for whom the contracted work is being performed.

But while Louisiana, so its courts have many times said, adopted this device as a means of subverting the payment of compensation through the device of impecunious contractors, its significance here is not in an asserted right by the claimants to recover Louisiana Compensation payments from the Government. Indeed, that is the last thing wished, hoped or prayed for. Rather it is that under Louisiana jurisprudence § 6 in imposing a vicarious liability for compensation payments clothes that party with the status of a “principal” or more descriptively, a “statutory employer,” so that it will not constitute a sua-ble “third person” under the provisions of the Act permitting suit by an employer (or his carrier) or an employee where the injury/death has been caused by the negligence of another.

This immunity to third party suit, presumably the creature of judicial interpretation of § 6, has survived the direct assault of the organized Louisiana plaintiffs bar and stands as a lion in the street unless on minute facts the case is outside the “usual, trade, or business.”

The significance of all of this here is that since the Government neither had nor was subject to an enforceable obligation to procure Louisiana compensation insurance, for it to have the Louisiana judge-made § 6 third party immunity would be, the claimants successfully urged below, to afford it the benefits with none of the burdens, Stated another way, their contention is that the § 6 immunity extends only to principals who are legally required to pay compensation. If that legal obligation is missing, so is § 6 immunity.

The District Court agreed with this thesis. But as the claimants could not ever recover if this holding was reversed even if they jumped the § 6 “usual trade business or occupation” hurdle, the District Court certified this appeal, 28 U.S. C.A. § 1252 which we allowed,

jn reso¡ution of the basic § 6 problem, the facts can be quickly capsu-]ated> These are eleven jrTCA suits by contractor-employees for injuries sustained from the operation of the Louisiana Army Ammunition plant near Min-den, Louisiana. The plant is a government-owned facility privately operated by Sperry Rand Corporation pursuant to a contract with the Ammunition Procurement And Supply Agency of the United States Army (No. DA-11-173AMC-80). Under the contract Sperry Rand hires the employees, prepares and loads the products for shipping, and generally does all jobs necessary to operate the plant. The cost-plus-fixed-fee contract obligates Sperry Rand to maintain workmen’s compensation for the plant employees and the premiums for that insurance are reimbursed by the government as a regular contract expense. Such coverage was obtained and in effect at the time of the accident that resulted in these suits.

If we approach this with literalism the Government cannot prevail. This is so because Louisiana cannot impose on it a legal obligation either to procure compensation insurance or to pay compensation benefits. (See note 8 supra). But this is not the history of FTCA or its generous development by the Supreme Court. That Act is given a broad interpretation to effectuate the legislative aim of putting citizen and national sovereign in tort claims suits on a footing of equality as between private parties within that state. Nice pieces of casuistry and hypersensitive legalisms are avoided.

Thus, in Indian Towing the Court considered the Government argument that “the language of § 2674 (and the implications of § 2680) imposing liability ‘in the same manner and to the same extent as a private individual under like circumstances . . . ’ must be read as excluding liability in the performance of activities which private persons do not perform. Thus, there would be no liability for negligent performance of uniquely government functions.” Declaring that “we would be attributing bizarre motives to Congress were we to hold that it was predicating liability on such a completely fortuitous circumstance — the presence of identical private activity [and there] is nothing in the Tort Claims Act which shows that Congress intended to draw distinctions so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation.” The Court held that the “language of the statute does not support the Government’s argument.” The Court rejected literalism and read the private person liability of § 1346 (see note 2 supra) as being “designed to . compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable . . . .”

Next, the Court in Rayonier, limiting sharply some of its pronouncements in the Texas City Disaster Case, held that the Government would be liable under vicarious Washington laws for fire fighting derelictions even though there was not like private activity and all usual activity — that of municipalities— would be subject to no liability.

We have done similarly in Gavagan where, against a similar Governmental assertion that there was no like private activity, we held the Government accountable under FTCA for a land-air-sea rescue search.

Of course, we are not dealing here with interpretations on coverage of FTCA. Rather, it is oh defenses. But we see no reason why in this liability by local standards criteria a like and sensible approach is not given to local defenses.

This takes us to the Louisiana aim of § 6 to assure compensation benefits to employees of contractors doing work for others. At bottom, claimants argue that the essence of the statute was to insure the employee “two debtors not one.” But one thing that is not intended is double payment of compensation, once by the “actual” employer and once by the “statutory” employer. Indeed, while pursuit can in the Louisiana codal language be in solido, which is to say against (i) actual employer, (ii) statutory employer or (iii) both, only a single recovery is permitted.

Of course this objective is accomplished through the unquestioned requirement that Sperry Rand, the contractor, maintain at the Government’s expense workmen’s compensation. Not only was it done in fact, but presumably it was done in accordance with established policies which have the effect of not only relinquishing any claim to Federal territorial sovereignty over lands of the Federal enclave, but carrying out the substantive policies of § 290 (see note 8 supra) to assure privately-employed workers on Federal projects equal treatment with other industrial laborers in the state. Thus the goals of Louisiana and the United States are mutually met. The workers have the protection in fact, that they would have if, in addition to Sperry Rand’s insurer, they would have the direct obligation of the Government. On the other hand, with this assured in fact, the Government, having seen to it that compensation by the contractor is afforded at the Government’s expense, is, as would be a private Louisiana statutory employer, entitled to the § 6 immunity.

The key finally is the existence of adequate insurance required and paid for by the Government. Whether the result would be the same if the Government contract did not require maintenance of compensation insurance is a matter for another day.

Reversed.

      . 28 U.S.C.A. § 1346.

      . 28 U.S.C.A. § 1346 provides :

        United States as defendant

      * * * * *
      (b) * * * the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
      * * * * *
      In addition the liability of the United States is set out in 28 U.S.C.A. § 2674:
      The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

      . La.Rev.Stat. 23 :1061 that provides :

        Principal contractors; liability

      Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

      . See the oft-cited and many times court-approved comment by Professor Malone
      “All the provisions of Section Six make clear the fact that the sole purpose of this section is to prevent the evasion of compensation .... As between the principal and the contractor, it is fair that the latter, as the employer of the claimant, should bear the risk of accident. For this reason, the principal who is made liable under Section Six is entitled to indemnity and he can interplead the contractor and demand judgment over against him. The net effect is that the principal merely lends his solvency to the worker’s claim, and he can effectively protect himself in advance either by satisfying himself that the contractor is solvent or by insisting that the latter insure against work accidents.”
      Malone, Principals Liability for Workmen’s Compensation to Employers of Contractors, 10 La.L.Rev. 25 (1949).
      We struggle with this problem in countless diversity and amphibious — ambiguous maritime situations, generally about whether the operational activity is, or is not, “part of [the] trade, business, or- occupation.” See one of our leading cases: Arnold v. Shell Oil Co., 5 Cir., 1970, 419 F.2d 43 and others, e. g. Gorsalitz v. Olin Mathieson Chemical Corp., 5 Cir., 1970, 429 F.2d 1033, 1040-1042.

      . La.Rev.Stat. 23:1101
      § 1101. Employee and employer suits against third persons causing injury; effect on right to compensation

      When an injury for which compensation is payable under this Chapter has been sustained under circumstances creating in some person (in this Section referred to as third person) other than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependent may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for the injury; and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for the injury.
      Any employer having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent.

      . The Government brief informs us that 44 states now have statutory employer provisions in their workmen’s compensation statutes (2 Larson’s Workmen’s Compensation, § 72.31, p. 189 (1970 ed.). Except possibly for Kirk v. United States, D. Idaho, 1954, 124 F.Supp. 233, rev’d, 9 Cir. 1956, 232 F.2d 763, no case out of Louisiana has been cited showing that other jurisdictions read the third party immunity into their statutory employer provision.

      . Broussard v. Heebe’s Bakery, Inc., 1972, 263 La. 561, 268 So.2d 656, 658 and see Tate, J. concurring at 661.
      This Court has commented on this problem before, e. g., Huson v. Otis Engineering Corp., 5 Cir., 1970, 430 F.2d 27, (see fn. 9) affirmed in part, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296. See also, Nations v. Morris, 5 Cir., 1973, 483 F.2d 577.

      . Certainly nothing in 40 U.S.C.A. § 290 imposes such an obligation:

        State workmen’s compensation laws; extension to buildings and works of United States

      Whatsoever constituted authority of each of the several States is charged with the enforcement of and requiring compliances with the State workmen’s compensation laws of said States and with the enforcement of and requiring compliance with the orders, decisions, and awards of said constituted authority of said States shall have the power and authority to apply such laws to all lands and premises owned or held by the United States of America by deed or act of cession, by purchase or otherwise, which is within the exterior boundaries of any State and to all projects, buildings, constructions, improvements, and property belonging to the United States of America, which is within the exterior boundaries of any State, in tiie same way and to the same extent as if said premises were under the exclusive jurisdiction of the State within wiiose exterior boundaries such place may be.
      For the purposes set out in this section, the United States of America vests in the several States within whose exterior boundaries such place may be, insofar as the enforcement of State workmen’s compensation laws are affected, the right, power, and authority aforesaid: Provided, however, That by the passage of this section the United States of America in nowise relinquishes its jurisdiction for any purpose over the property named, with the exception of extending to the several States within whose exterior boundaries such place may be only the powers above enumerated relating to the enforcement of their State workmen’s compensation laws as herein designated: Provided further, That nothing in this section shall be construed to modify or amend the United States Employees’ Compensation Act, as amended.
      June 25, 1936, c. 822, §§ 1, 2, 49 Stat. 1938, 1939.
      For its genesis and development see:
      Murray v. Joe Gerrick & Company, 1934, 291 U.S. 315, 54 S.Ct. 432, 78 L.Ed. 821, 92 A.L.R. 1259, 1263; James Stewart & Company v. Sadrakula, 1939, 309 U.S. 94, 60 S.Ct. 431, 84 L.Ed. 596, 601; Travelers Insurance Co. v. Cardillo, 1944, 78 U.S.App.D.C. 392, 141 F.2d 362; Capetola v. Barclay White Company, 3 Cir., 1943, 139 F.2d 556, 153 A.L.R. 1046, cert. den. 321 U.S. 799, 64 S.Ct. 939, 88 L.Ed. 1087:
      “It is, of course, patent from a reading of the Act of 1936 that Congress did not thereby adopt State Compensation Acts as federal law applicable to federal territories within the exterior boundaries of the States. But it is our opinion that the purpose and effect of the congressional Act was to free State workmen’s compensation laws from the restraint upon their enforcement theretofore existing by reason of the exclusive federal jurisdiction of lands within the States and that, forthwith upon the federal enactment, Pennsylvania’s Workmen’s Compensation Act became operable as to injuries received by employees of private employers on federal property within the State’s exterior boundaries. The situation created by the Act of 1936 was no different, so far as the operation of Pennsylvania’s compensation law is concerned, than it would have been liad Pennsylvania never ceded jurisdiction of the Navy Yard site to the federal government.”

      . The plaintiffs have been very careful to reserve the question of whether the activity that Sperry Rand performs for the Government meets the criteria of “trade, business, or occupation” necessary to qualify the Government as a principal under § 6. Therefore, we assume for the purpose of this appeal that the manufacture of munitions is a traditional government function.
      Without intimating pre-judgment, the assumption is probably a safe one since nations make wars and wars mean munitions the supply of which has from year to year and war to war come from Government-operated and cost-plus contractors of Government-owned facilities. See, Powell v. United States Cartridge Co., 1949, 339 U.S. 497 at 499, 70 S.Ct. 755, at 757, 94 L.Ed. 1017 (See especially fn. 2 at 1028).

      . Ten grew out of two separate violent explosions on loading lines, the eleventh from a fall from a railroad car.

      . The United States was not, however, included as a named or omnibus insured on the Louisiana workmen’s compensation policy.

      . For some of the express Congressional limitations in the FTCA, see Richards v. United States, 1961, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492.
      The Act permits claimants to sue only in the federal courts, and not in the state courts which are available in actions against a private individual, § 1346(b) ; the Act prescribes its own period of limitations which may be shorter or longer than that of the State, § 2401(b) ; the claimant cannot obtain a trial by jury under the Act, although lie could against a private individual, § 2402; the claimant cannot obtain interest prior to judgment in suits under the Act regardless of the state rulé governing private individuals, § 2674; the claimant cannot obtain punitive damages under the Act, even though state law may provide for it as against a private defendant, § 2674; the claimant cannot recover any damages against the United States on any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights, whereas he could recover such damages against a private individual, § 2680(h) ; the claimant cannot obtain any recovery against the United States on a claim arising in a foreign country, although he could against a private individual, § 2680(k) ; and the Act exempts the Government from liability for claims based on various types of activities, although a private individual would be liable in the same circumstances, § 2680.

      . Indian Towing Co. v. United States, 1955, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48.

      . From 350 U.S. 61, 68-70, 76 S.Ct. 122, 100 L.Ed. 48.

      . Rayonier, Inc. v. United States, 1957, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354.

      . Dalehite v. United States, 1952, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427; see also, Smith v. United States, 5 Cir., 1967, 375 F.2d 243, cert. den., 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106.

      . United States v. Gavagan, 5 Cir., 1960, 280 F.2d 319.

      . Jones v. Southern Tupelo Lumber Company, 257 La. 869, 244 So.2d 815 (1971) :
      “The courts below correctly cast all of the defendants solidarily, for when an employee is entitled to compensation and under R.S. 23 :1061 or R.S. 23 :1063 has sued the principal or the principal contractor together with the contractor or subcontractor, the liability of such defendants is solidary. * * * Under these statutes the claimant is entitled to proceed against the principal (or principal contractor) or the contractor (or subcontractor) or both as he chooses. The indemnification clauses, however, have the effect of finally imposing the loss of the principal or principal contractor upon the claimant’s immediate employer.” Id. 244 So.2d 815.

        See also Seabury v. Arkansas Nat. Gas Corp., 14 La.App. 153, 127 So. 25 [1930] ; Calcote v. Century Indem. Co., 93 So.2d 271 [La.App., 3rd Cir., 1957] ; Meche v. Farmers Drier & Storage, 193 So.2d 807 [La.App., 3rd Cir., 1967].

      . See, 41 C.F.R. 1-10. 502-1, which prescribes that compliance with applicable workmen’s compensation and occupational disease statutes will be required.

      . Louisiana compensation benefits have been paid or are payable to each of the eleven claimants (or their successors).


author: CLARK, Circuit Judge: COLEMAN, Circuit Judge BY THE COURT:

text:
    ALABAMA GREAT SOUTHERN RAILROAD COMPANY, Plaintiff-Appellee, v. ALLIED CHEMICAL CORPORATION, Armco Steel Corporation, and General American Transportation Corporation, Defendants-Appellants.
    No. 73-3057.
    United States Court of Appeals, Fifth Circuit.
    Sept. 19, 1974.
    Rehearing En Banc Granted Nov. 6, 1974.

      Sherwood W. Wise, Thomas G. Lilly, Jackson, Miss., for Allied Chem.
    Junior O’Mara, Jackson, Miss., for General Am. Transportation.
    W. F. Goodman, Jr., Jackson, Miss., for Armco Steel.

      Lewis T. Booker, Robert F. Brooks, Richmond, Va., Tally D. Riddell, Quit-man, Miss., for plaintiff-appellee.
    Before COLEMAN, CLARK and GEE, Circuit Judges.
   CLARK, Circuit Judge:

Alabama Great Southern Railroad Company (AGS) train No. 154 left New Orleans, Louisiana just after midnight on January 25, 1969 with four engines pulling 113 freight cars and a caboose. At Dragon, Mississippi No. 154 picked up a “cut” of 26 jumbo tank cars, each filled with 32,000 gallons of liquefied propane gas, placed them in line behind the sixtieth car, and proceeded north. As the second jumbo tank car, No. ACSX 932003, traversed a crossing of AGS and Gulf, Mobile & Ohio Railroad (GM&O) tracks at 4:20 A.M. in Laurel, Mississippi, the second wheel on the left side (designated the L-3 wheel) fractured and broke, causing the 003 and 17 other tank cars to derail and detonate. Fire and explosions killed or injured a number of people and inflicted extensive property damage. The 003 tank car was owned by the Allied Chemical Corporation (Allied). Armco Steel Corporation (Armco) had manufactured the L-3 and other wheels and sold them to the General American Transportation Corporation (GATX), which had assembled them on the 003 car purchased by Allied in 1962.

On the day following the derailment AGS began processing the damage claims of third parties, ultimately paying out over 7,395,000 dollars to settle 3,492 claims and defray expenses. The railroad then brought this diversity action in the Eastern District of Virginia against Allied, GATX and Armco to recover 10,000,000 dollars in property damages and indemnity for payments to third parties injured or damaged by the accident. Pursuant to 28 U.S.C. § 1404(a), the litigation was transferred to the Southern District of Mississippi. Alabama Great Southern Railroad Co. v. Allied Chemical Corp., 312 F.Supp. 3 (E.D.Va.1970).

In its complaint AGS predicated recovery on (1) defendants’ negligence in the design, manufacture, testing and inspection of the L-3 wheel, (2) strict liability in tort and (3) warranty. Defendants denied liability, asserting that AGS could not recover indemnity because it had acted as a volunteer in settling with third parties, or because it had been negligent in maintaining the roadbed, track and crossing in an unsafe and dangerous condition, operating the train at an excessive and unreasonable speed, and failing properly to control, inspect and manage the train and equipment. In addition, Allied and GATX filed counterclaims sounding in negligence against the railroad for the value of the tank cars and liquefied propane gas destroyed in the derailment.

During closing argument AGS dropped its breach of warranty claims against all defendants and its claim of strict liability against Allied. At the close of a five week trial the district court reserved a ruling on defendants’ motions for directed verdicts and excluded the railroad’s claim for property damages, thus casting AGS’ action in indemnity only. The various claims of negligence and the remaining claims for strict liability were submitted to a jury, which returned general verdicts for AGS on its indemnity claim and the counterclaims of Allied and GATX. The district court denied defendants’ motions for directed verdicts, judgments N.O.V. and for new trials. Defendants appeal from the judgment for AGS in the amount of 3,600,000 dollars on its claim for indemnity. Allied and GATX appeal from the judgment for AGS on their counterclaim. We affirm the judgment for AGS on the counterclaim, but reverse the judgment for AGS on its indemnity claim.

In reviewing the record in order to determine whether this case should have been sent to the jury or a verdict directed as a matter of law, an appellate court under both Mississippi and federal law “[is] duty bound to accept all evidence in favor of the verdict as true and^ to give such evidence the benefit of all permissible inferences that would help sustain the jury’s decision.” Little v. Green, 428 F.2d 1061, 1066 (5th Cir. 1970); accord Ayers v. Wolfinbarger, 491 F.2d 8, 13 (5th Cir. 1974); Hubbard v. Morris, 275 So.2d 858 (Miss. 1973). Thus, all conflicts in the evidence must be resolved in favor of the prevailing party. Accordingly, we recapitulate the evidence substantially as it was stated in the brief of the plaintiff railroad.

The L-3 wheel was defectively manufactured. During the manufacturing process at Armco’s Wheel Works at Butler, Pennsylvania, grooves and tears were machined into the surface of its plate. The grooves and tears greatly weakened the wheel by concentrating stresses in the grooves and tears, thereby greatly reducing the wheel’s ability to resist the type of sudden impact any railroad wheel receives from passing over a crossing. The wheel was manufactured to meet the governing specifications of the Association of American Railroads (AAR), published in its Manual of Standard and Recommended Practices. While the wheel met the chemical and dimensional standards of that specification, it did not meet the requirements' of paragraph 16(c), which provides-:

Wheels shall be given a thorough surface examination and gaging at the place -of manufacture before being offered for inspection. They shall have a workmanlike finish and must be free from defects liable to develop in or cause removal from service.

After the L-3 wheel was received at General American’s plant, it remained in inventory there for approximately two months. GATX had ample opportunity to inspect it at that time. In addition, GATX also had the right, if it desired, to visit Armco to inspect the L-3 and other wheels before they left the factory. The wheel should have been, but was was not, rejected by either Armco’s or General American’s inspectors.

When Allied ordered a series of 135 jumbo tank cars from GATX in 1962, it directed General American to use as many Armco parts as possible on the cars. Allied had the right to inspect the cars during the course of their manufacture and to inspect them upon completion of manufacture.

Once car 003 entered railroad service the L-3 wheel quickly became covered with grease, dust and road grime as a result of normal operating conditions. Because the plate of the wheel was coated and a normal view of the plate is largely obscured by the truck, it would have been impossible within a short period of time after the car went into service for a railroad car inspector to have detected these machining defects. Thus, the grooves and tears in the wheel’s plate were not discerned by the car inspector who made the regular interchange inspection of the wheel at the time it was received by AGS on January 24, 1969.

At the time of the derailment Train No. 154 was proceeding at 30 miles per hour, a speed within the authorized limit for the train at that point. The track, while scheduled for heavy maintenance within a few weeks, was nevertheless in good condition and entirely satisfactory for trains going 40 miles per hour. Neither the condition of the roadbed nor the speed of the train contributed in any way to the derailment.

Immediately after the accident, members of the AGS legal staff and its division counsel in Mississippi came to Laurel, and, after investigating the circumstances, determined that AGS should attempt to settle the claims of those injured or damaged by the derailment. AGS immediately began to compromise and settle claims on the fairest and most equitable basis it could.

I.

Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), mandates that we apply the substantive law of Mississippi. “In arriving at our decision, our goal is, of course, to reach that result which would most probably be reached had this action been litigated in the State Court.” Mississippi Power Company v. Roubicek, 462 F.2d 412, 417 (5th Cir. 1972).

The common law obligation of implied indemnity is rooted in the notion that every person should be responsible for his own negligence. Hence, an individual without fault who is legally compelled to pay damages to a third party on account of the negligent or tortious conduct of another is vested with an action in indemnity against the active wrongdoer for recovery of the amount paid. This is the rule which has been applied by the courts of Mississippi. See Home Insurance Co. v. Atlas Tank Mfg. Co., 230 So.2d 549 (Miss.1970); Bush v. City of Laurel, 215 So.2d 256 (Miss.1968); St. Louis & San Francisco Rwy. v. United States, 187 F.2d 925, 927 (5th Cir. 1951). See also 41 Am.Jur.2d Indemnity § 20 (1968); 42 C.J.S. Indemnity § 20 (1944).

“Two critical prerequisites are generally necessary for the invocation of non-contractual implied indemnity in Mississippi: (1) The damages which the claimant seeks to shift are imposed upon him as a result of some legal obligation to the injured person; and (2) it must appear that the claimant did not actively or affirmatively participate in the wrong.” Home Insurance Co. v. Atlas Tank Mfg. Co., supra. 230 So.2d at 551.

Adhering to the universal rule, the Mississippi courts have qualified the principle of implied indemnity with the corollary that no right of indemnity exists between joint tortfeasors or parties in pari delicto, that is “where the injury resulted from the concurring negligence of both parties.” Bush v. City of Laurel, supra, 215 So.2d at 260. An action for indemnity will arise “when one party does the act or creates a dangerous situation and the other party is liable . . . because of passive negligence in failing to remedy the defect or because of a nondelegable statutory duty.” Bush v. City of Laurel, supra, 215 So.2d at 260. See, e. g., Alabama Great Southern Railroad Co. v. Chicago & Northwestern Railway Co., 493 F.2d 979 (8th Cir. 1974).

To satisfy the initial condition precedent for recovery — damages imposed as a result of a legal obligation to the injured party — the railroad asserts a blended theory to establish its liability to those it paid, based on (a) passive negligence, i. e., it failed to remedy a latent defect built into the 003 car by the defendants; (b) the legal effect of Miss.Code Ann. § 13-1-119 (1972), which provides that proof of injury from a derailment is prima facie evidence of the railroad’s want of reasonable skill and care in operation; and (c) “common sense,” i. e., everyone knows that any person injured by the operation of a train who sues the railroad will recover.

We begin our analysis with the final element in the blend. Certainly no court would deliberately render a decision that departed from that much-to-be-desired but, at times, hard-to-define virtue, common sense. However, the notion that “common sense” dictated that a purported indemnitee rightfully paid an injured party has never been held to be a substitute for prerequisite legal liability. Just as earnestly as the railroad contends that it surely would have been held liable if it had awaited suit and the court’s judgment instead of engaging in immediate adjustment and settlement of claims, the defendants assert that these payments were made without basis in duty or logic. No Mississippi precedent has been cited for this vague concept and we decline to predict that the law of that state will adopt such a shadowy concept.

The prima facie statute ingredient in the railroad’s mixed bag fares no better. From enactment, its legal effect has been only “to cast upon the railroad company the duty of producing some evidence” to counter the “inference of negligence” it creates. Mobile, Jackson & Kansas City R.R. Co. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed. 78 (1910). When the railroad comes forward with proof of the circumstances surrounding the accident, the inference vanishes and the jury must resolve the fact question of negligence solely on the basis of record evidence. See, e. g., New Orleans & Northeastern R.R. Co. v. Lee, 205 So.2d 923 (Miss.1968); Illinois Central R. Co. v. Gibson, 219 Miss. 815, 70 So.2d 52 (1954); Korter v. Gulf & S. I. R. Co., 87 Miss. 482, 40 So. 258 (1906). The Supreme Court of Mississippi “has, in a long line of eases, held that it was the duty of the trial court to grant a peremptory instruction for the railroad company where the prima facie ease was satisfied by the disclosure of the facts and the facts failed to show negligence.” Stapleton v. Louisville & Nashville R.R. Co., 265 F.2d 738, 740 (5th Cir. 1959).

Indeed, the “insurance” construction urged by AGS — that the prima facie statute imposed a non-delegable duty of error-free railroad operation and ipso facto established liability to injured third parties — would contravene the due process clause of the Fourteenth Amendment. “The mere fact of collision between a railway train and a vehicle at a highway grade crossing furnishes no basis for any inference as tó whether the accident was caused by negligence of the railway company, or of the traveler on the highway, or of both, or without fault of anyone. Reasoning does not lead from the occurrence back to its cause.” Western & Atlantic R.R. Co. v. Henderson, 279 U.S. 639, 642-643, 49 S.Ct. 445, 447, 73 L.Ed. 884 (1929).

The record before us manifests that the railroad introduced sufficient proof to remove the prima facie statute from the case. It also demonstrates unequivocally that as a matter of law the jury could only have concluded either that the railroad was actively negligent or that it was guilty of no negligence whatsoever. At trial AGS adduced proof that the L-3 wheel fractured as a result of a defective manufacturing procedure. Defendants countered with evidence indicating that the L-3 wheel conformed to AAR standards and was not defective, and that the wheel fractured due to the excessive speed of the train and the poor condition of the crossing and roadbed. AGS rejoined with proof that the track and crossing were in good condition and that the train was proceeding at the authorized speed limit. The jury’s verdicts on the principal claim and defendants’ counterclaim establishes that it accepted the railroad’s version. Finally, AGS proved without contradiction that it conducted a complete AAR interchange inspection of the 003 car before the accident and did not discover the defect. Moreover, even had the L-3 wheel been clean enough and so positioned as to expose the grooves and tears, the railroad proved its inspectors were not trained to recognize such signs as indicative of a defective wheel. No proof established or even intimated that a reasonable inspection by the railroad could have revealed the defect it claimed caused the derailment.

As a matter of Mississippi law/ no view of the entire record will sustain a finding that the railroad was only passively negligent. In Southwest Mississippi Electric Power Assn. v. Harragill, 254 Miss. 460, 182 So.2d 220 (1966), the plaintiff power association filed a complaint for indemnity, averring that it purchased a truck from the retailer defendant specifying electric holding brakes, which defendant Harragill installed. After a period of successful operation plaintiff’s employee rear-ended an automobile because the truck’s brakes failed. Despite its exercise of reasonable care and caution in inspecting and maintaining the truck and brakes, Southwest asserted it was unable to discover the defective and improperly assembled brake fittings that had caused the brake failure and the ensuing accident. “In short, Southwest alleged that it was guilty of no negligence whatsoever. . . .” Southwest Mississippi Electric Power Assn. v. Harragill, supra, 182 So.2d at 223. The power association had settled a lawsuit brought by the automobile owner and then instituted the action for indemnity. A demurrer to this complaint was sustained by the trial court and affirmed on appeal because these admitted facts did not establish that the power association was liable under state law to the injured automobile owner.

“This Court adheres to the rule that failure of brakes makes only a prima fa-cie case of liability against a motorist which the driver may defend by showing proper inspection and a sudden failure without warning. . . . Stated differently, the operator of a motor vehicle is liable for injuries caused by defective brakes only if he was negligent in failing to discover the defect.” Southwest Mississippi Electric Power Assn. v. Har-ragill, supra, 182 So.2d at 223 (citations omitted). Consequently, the Mississippi Supreme Court held that plaintiff’s settlement was voluntary and not paid under compulsion, a circumstance which precluded indemnity.

Although dictum in several decisions would indicate that failure to remedy a defect created by another constitutes passive negligence which does not bar indemnity, Harragill remains the only Mississippi ease in which such facts were decisional. Every other indemnity decision was resolved on the basis of a determination of active neglect by the asserted indemnitee or a legal relationship between the purported indemnitee and the injured party in which liability was imputed by operation of law or a non-delegable statutory duty.

The lynchpin of the railroad’s position is forged from the “equal in grade” dicta in Atlas Tank and the “failure to remedy” language used in Bush. In the former case the defendant dangerously lowered the clearance beneath the plaintiff power company’s high voltage transmission lines when it filled in and leveled a ravine area. Its employee was fatally electrocuted when the machinery he was operating came in contact with a 13,000 volt distribution line. The power company was aware of the dangerous condition and had promised the defendant it would raise the wire by installing new utility poles. After the power company had been held liable to the deceased, it sought liability from Atlas. The Mississippi Supreme Court refused indemnity, holding that the power company had been actively, rather than passively negligent in breaching its duty to inspect and maintain its lines in a safe condition, especially after the defendants had requested the same. In Bush, the plaintiff city had contracted with the defendant to relocate certain of its water and sewerage lines. A third party sued and recovered judgment against the city for injuries incurred from a fall into a ditch dug during construction. See City of Laurel v. Upton, 253 Miss. 380, 175 So.2d 621 (1965). The Mississippi Supreme Court affirmed an award of indemnity in the amount of settlement against the defendant, holding that the plaintiff city, though without active fault, was guilty of passive negligence in breaching a non-delegable duty to its inhabitants to maintain its streets and sidewalks in a reasonably safe condition. Neither of these decisions can be interpreted to mean that the failure of AGS to discover an undiscoverable defect rendered it passively negligent in the Laurel derailment, or that any person who utilizes a defectively manufactured product may compensate a party injured by such use and receive indemnity from the manufacturer.

Unlike a municipality, a railroad in Mississippi is not burdened with a non-delegable duty to keep its equipment free from hidden or latent defects. Neither is it an insurer for every calamity or injury traceable to the operation of its trains. See Gulf, Mobile & Northern R.R. Co. v. Sparkman, 180 Miss. 456, 177 So. 760 (1938). It had the duty under Mississippi law to operate its trains in a reasonably safe manner. AGS was not situated vis-a-vis any defendant in such a way (master-servant, principal-agent) as would cause it to be held liable to an injured third party without fault of its own. The railroad’s problem was that in seeking to avoid Charybdis (active negligence which would make it a joint tortfeasor), it fell into Scylla (nonliability which made it a volunteer).

To answer the claim that it paid without liability to do so, AGS introduced the complaint, answer, judgment and opinion of the court in Turner v. Alabama Great Southern Railroad Company, Civil Action No. 2378 (S.D.Miss., filed December 5, 1969), a suit brought to recover damages for personal injury caused by the derailment. The case was tried by the court, which found for the plaintiff, concluding that the sole proximate cause of the derailment was the fracturing of the unsafe L-3 wheel, worn to within 78Amo of an inch of its tolerance, which “should not have been utilized in the exercise of reasonable care.” The records of that cause which were placed in this record indicate no evidence was introduced showing the L-3 wheel was defectively machined. Assuming, arguendo, that the Turner judgment is binding on all parties to the present litigation, rather than on the railroad alone, it establishes no more than that the railroad’s active negligence in utilizing a defective wheel caused the accident.

Had AGS joined these defendants as third party defendants in Turner or brought a declaratory judgment action to adjudicate the liability of each party, perhaps it would not find itself in the unenviable position of attempting to prove enough negligence without establishing too little. Because we are convinced the Mississippi Supreme Court would rule that the trial court was required to direct a verdict for defendants on the evidence, we reverse the judgment entered below on the railroad’s claim for indemnity.

II.

In their counterclaims to recover the market value of the jumbo tank cars and liquefied petroleum gas destroyed in the derailment, Allied and GATX predicated the railroad’s liability on negligence (1) in maintaining its roadbed, track and crossing in an unsafe condition and (2) in operating and inspecting train No. 154, all of which allegedly proximately caused the accident and loss. The parties stipulated the value of the property destroyed. In addition, Allied and GATX introduced letters from AGS in which the railroad requested these defendants to bill it for the depreciated value of the tank cars and authorized scrapping the remnants. By return letter Allied and GATX submitted invoices and the requested authority. AGS did in fact salvage some of the parts, placing them in its second-hand inventory, and sold the rest of-the cars for scrap, retaining the proceeds. AGS however, thereafter refused to pay Allied and GATX for the value of the destroyed cars.

The jury returned a verdict for AGS on the counterclaims, which were submitted solely on the theory of negligence. On appeal Allied and GATX urged that they are entitled to judgment as a matter of law because (1) AGS breached a valid compromise and settlement agreement that became enforceable when the counterclaimants accepted the railroad’s offer to compromise for the depreciated value of the tank cars and (2) AGS was liable for the loss of tank cars in its possession due to derailment, explosion or fire under AAR interchange rules, which were introduced in the court below. These theories were never presented to or passed upon by the trial court, either in the pleadings, the formal motions for summary judgment or directed verdicts, or in a request for jury instructions. Since the jury’s finding of no negligence on the part of AGS finds support in the record, the verdict cannot be disturbed. See Delancey v. Motichek Towing Service, Inc., 427 F.2d 897 (5th Cir. 1970).

While these contentions may have had merit if timely raised in the district court, it is well established that, in the absence of a miscarriage of justice, issues not raised or presented in the lower court will not be considered for the first time on appeal.

Excavators and Erectors, Inc. v. Bullard Engineers, Inc., 489 F.2d 318, 320 (5th Cir. 1973); accord, Wolf v. Frank, 477 F.2d 467 (5th Cir. 1973); Hill York Corp. v. American International Franchises, Inc., 448 F.2d 680 (5th Cir. 1971); see also Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941); EEOC v. Standard Forge & Axel Co., Inc., 496 F.2d 1392 (5th Cir. 1974).

The cause is remanded for entry of a judgment in accord with this opinion.

Reversed on Direct Appeal affirmed on Cross Appeal and remanded.

COLEMAN, Circuit Judge

(concurring) .

I have always felt that appellate reversal of a jury award is an extremely serious matter. This, of course, is more than compounded when dealing, as we are here, with a verdict for $3,600,000. See Cooley v. Strickland Transportation Company, 5 Cir., 1972, 459 F.2d 779 (dissenting opinion). Nevertheless, as all lawyers and judges know, the jurisprudence, under well defined principles, is replete with instances wherein directed verdicts and judgments notwithstanding the verdict were clearly required.

The massive loss sustained by the Railroad in the catastrophe of January 25, 1969, is more than enough to excite the concern of court and layman alike. Nevertheless, I must agree that the law, cogently demonstrated in the opinion so ably written by Judge Clark, inescapably points to the result herein directed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, RONEY and GEE, Circuit Judges.

BY THE COURT:

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,

It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

      . In Alabama Creat Southern Railroad Co. v. Allied Chemical Corp., 467 F.2d 679 (5th Cir. 1972), this Court reversed a ruling by the district court granting the defendants summary judgment on the ground that the action was barred by the Mississippi Statute of Limitations.

      . Each defendant contends before this Court that (1) the district court should have granted a directed verdict for it as a matter of law; (2) the district court erred in these charges to the jury: (a) “joint tort fea-sors” are parties who are guilty of equal negligence, (b) “active negligence” means negligence which is greater than passive negligence, and (c) the railroad could be legally liable to third parties even if the L-3 wheel defect was undiscoverable by it; (3) the jury was confused and returned an invalid compromise verdict; and (4) . the jury was misled by written, post-instruction communications received and answered by the court without the participation of knowledge of counsel for any party.
      In addition, Allied contends it is not liable to indemnify AGS because (1) it was not guilty of any negligence proximately causing the derailment since it had no duty as a purchaser to inspect the L-3 wheel and 003 car; and (2) if Allied had such a duty, AGS was charged with a similar duty. Allied also asserts that the form of the verdict submitted to the jury was improper. In view of our holding that the district court should have directed verdicts for the defendants as a matter of Mississippi law, we pretermit consideration of any of these specifications of error.

      . AGS, like every other major railroad in the country, is a member of the Association of American Railroads and subscribes to the AAR Code of Interchange Rules, which requires that a thorough inspection be made of each interchange of cars between railroads to determine if the equipment is safe for operation and that no defects in safety apparatus exist.

      . The term “joint tortfeasors” means that two or more persons are the joint participants or joint actors, either by omission or commission, in the wrongful production of an injury to a third person. There the act or omission of each is his own act or omission, but the acts or omissions are concurrent in, or contribute to, the production of the wrongful injury, so that each actor is, on his own account, liable for the resulting damages. But when the liability of a principal for the tort of an agent, or that of the master for the wrong of a servant, has grown out of a tort in which the agent or servant is the sole actor, whence the liability of the principal or master is an imputed 'or constructive liability and has its sole basis in the doctrine of respondeat superior and in nothing else, the liability is joint and several, but they are not joint tort feasors. Gran-quist v. Crystal Springs Lumber Co., 190 Miss. 572, 581,1 So.2d 216, 218 (1941).

      . In all actions against railroad corporations and all other corporations, comxianies, part-nershixis and individuals using engines, locomotives, or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever x>ower, and running on tracks, for damages done to xrersons or x>roperty, proof of injury inflicted by the running of engines, locomotives or cars of any such railroad corporations or such other corporation, company, xiartnership or individual shall be prima facie evidence of the want of reasonable skill and care of such railroad corporation, or such other corporation, company, partnership or individual in reference to such injury. This section shall also apply to passengers and employees of railroad corporations and of such other corporations, companies, partnerships and individuals.

      . In Atlas Tank the court said:
      The general rule governing implied indemnity for tort liability is that a joint tort feasor, whose liability is secondary as opposed to primary, or is based upon imputed or passive negligence, as opposed to active negligence, or is negative negligence as opposed to positive negligence, may be entitled, upon an equitable consideration, to shift his responsibility to another joint tort feasor. However, where the fault of each is equal in grade and similar in character, the doctrine of implied indemnity is not available since no one should be permitted to base a cause of action on his own wrong. Thus, the determination of whether or not indemnity should be allowed must of necessity depend upon the facts of each case. (230 So.2d at 551).
      and this language was used in Bush:
      Except as provided by Mississippi Code 1942 Annotated section 335.5 (1956) there is no right of contribution in Mississippi where the parties are joint tort feasors or are in pari delicto — i. e., where the injury resulted from the concurring negligence of both parties. However, parties are not in pari delicto when one party does the act or creates a dangerous situation and the other party is liable or because of passive negligence in failing to remedy the defect or because of a non-delegable statutory duty. (215 So.2d at 260).
      If the passive negligence concept of implied indemnity is to be extended to encompass the greater-lesser negligence concept advanced by AGS, and accepted in the trial court’s instructions to the jury, the result could conflict with Mississippi statutory scheme of contribution between joint judgment debtors in proportion to their numbers rather than the quantum of negligence that may be ascribed to each. Miss.Code Ann. § 85-5-5 (1972). For example, if one defendant who was 49% negligent may have full indemnity against a co-defendant found to be 51% at fault, the statute’s command that they share the loss 50-50 is aborted. The same would be equally true where the negligence was .01% and 99.99%, even though the equities are much greater.

      . We note the following analysis from Builders Supply Co. v. McCabe, 366 Pa. 322, 325, 77 A.2d 368, 370, 24 A.L.R.2d 319 (1951), cited by the Mississippi Supreme Court in Bush.

      “There is, of course, a fundamental difference between indemnity and contribution. The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by ■ reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence, — a doctrine which, indeed, is not recognized by the common law. It depends on a difference in the character or kind,oí the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person. . . .
      Without multiplying instances, it is clear that the right of a person vicariously or secondarily liable for a tort to recover from one primarily liable has been universally recognized. But the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. In the case of concurrent or joint tortfeasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other. The universal rule is that when two or more contribute by their wrongdoing to the injury of another, the injured party may recover from all of them in a joint action or he may pursue any one of them and recover from him, in which case the latter is not entitled to indemnity from those who with him cause the injury.” (Citation omitted) (Emphasis in original)