author: NICHOLS, Associate Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. W. Borden STRICKLAND, Defendant-Appellant.
    No. 74-2080.
    United States Court of Appeals, Fifth Circuit.
    March 6, 1975.
    Rehearing Denied April 2, 1975.

      L. Drew Redden, Birmingham, Ala., Barry Hess and Thomas A. Deas, Mobile, Ala., for defendant-appellant.
    Charles S. White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before GEWIN and SIMPSON, Circuit Judges, and NICHOLS, Associate Judge.

       Of the United States Court of Claims, sitting by designation.

   NICHOLS, Associate Judge.

Appellant, W. Borden Strickland, was convicted by a jury verdict on Counts 2, 45 and 46, of a 46-count indictment, and sentenced to three three-year sentences to be served concurrently.

Count Two charged the willful and knowing embezzlement and misappropriation of funds held by Appellant as court-appointed Guardian for Cherlyn Jones, a minor, in violation of 38 U.S.C. § 3501. We affirm the conviction on this count. In view of our conclusion as to Count Two, and since appellant has not shown any reason why the convictions under Counts 45 and 46 add anything material to the pains and penalties he will suffer from the conviction under Count Two, we deem it unnecessary to review the latter convictions, and decline to do so. See, Benton v. Maryland, 395 U.S. 784, 787-91, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

Appellant, a lawyer, was the General Guardian for Mobile County, Alabama. As such he performed fiduciary duties with respect to funds paid by the Veterans Administration (VA) for the benefit, among others, of the minor children of deceased veterans. Cherlyn Jones was such a minor child. Appellant purchased a car for her use with trust funds, and later obtained court permission to sell the car since she was moving to New York. Then occurred the following events.

January 25, 1972 Appellant receives $1,200 cash from purchaser, Robert Hunter, at “public outcry” sale of Cherlyn Jones’ 1971 Volkswagen, and puts money in his cash box. He tells Hunter there will be a delay in delivery for court confirmation of the sale.

January 28, 1972 Sale and payment are reported to Probate [Court] by appellant as Guardian and confirmation of sale is requested.

February 7, 1972 Appellant puts $1,200 into his and his wife’s joint safe deposit box.

February 23, 1972 Purchaser Hunter receives car keys and bill of sale from appellant. The court has refused to confirm the sale, leaving the responsibility on appellant.

February 11, March 1, 30, June 8 and 15, 1972 Subsequent entries into safe deposit box: $1,200 remains in box. •

March 24, 1972 Appellant swears to and files with VA an account of Cherlyn Jones’ estate for the year ending March 24, 1972, but fails to report the $1,200 from the car sale.

August 13 or 14, 1972 Appellant receives August 8th, letter from the VA inquiring:

“We note that an order was entered authorizing the sale of Cherlyn’s automobile. Please advise whether the automobile has been sold.”

August 15, 1972 Without removing the $1,200 cash from his safe deposit box, appellant writes $1,200 check to Cherlyn’s account using his own funds, and deposits check to her account. He enters the $1,200 in his office ledger sheet for the Cherlyn Jones Guardianship account for the first time.

August 16, 1972 Appellant replied to the VA by a letter which contains falsehoods. See below.

August 21, 1972 After paying Cherlyn $1,200 from his checking account, appellant enters safe deposit box and removes part of $1,200, and thereafter treats $1,200 as his own money.

I

The statute, 38 U.S.C. § 3501(a) provides that: “Whoever, being a guardian * * * having charge and custody in a fiduciary capacity of money * * * hereafter paid under any of the laws administered by the Veterans’ Administration for the benefit of any minor * * shall * * * embezzle or in any manner misappropriate any such money * * * shall be fined not more than $2,000 or imprisoned not more than five years, or both.”

Appellant tells us that by authority of Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the prosecution must prove criminal intent, even though this is not spelled out in the statute. Mere negligence will not support an embezzlement conviction. United States v. Williams, 478 F.2d 369 (4th Cir. 1973). We accept these standards as valid, and accordingly we are required to examine the record to see if it contains direct or circumstantial evidence of criminal intent. Morissette was accused of stealing Government property, simulated bombs he thought were abandoned after being dropped in practice. The Court laid great stress on Morissette’s openness and candor in face of investigation. It is obvious that the converse is equally true: concealment and falsification may reveal a consciousness of guilt and so help to carry the prosecutor’s burden, or indeed, as to intent, may carry it alone.

In the records appellant filed with the Mobile County Probate Court all of the facts are set out correctly as regards sale events up to the date of the report (January 28). It is also obvious that in view of that disclosure it would have been impossible for appellant to have permanently converted the funds without ultimate discovery. Further, there is no showing that he needed the funds, nor did he actually make use of them.

However, going against appellant are the following facts: (1) he did keep the $1,200 cash unrecorded in his personal safe deposit box for a 6-month period despite several instances of putting things in or taking them out (making his argument of forgetfulness hard to believe); (2) appellant admitted it was unusual and not necessary to obtain court confirmation of such a sale, leaving open the inference that the purpose in asking for confirmation was delay; (3) delay in entering the receipt in his office ledger account and in reporting it to the VA; (4) his statement in the August 16, letter to the VA that “for the first time I have ever known the Probate Court made it [the sale] subject to confirmation and not to the highest bidder * * * ”, was patently false and contrary to recitals in his January 28, report to the Probate Court; and (5) his statement in the VA letter that “This [the Probate Court’s alleged unusual action] delayed receipt of the sale price of Twelve hundred dollars ($1,200.00).” was also patently false.

Appellant was unable on cross-examination to explain satisfactorily the delay in depositing the funds to Cherlyn’s account and the falsehoods in his letter to the VA.

We think the jury had sufficient evidence before it to find as it must have done, that the misappropriation was willful and knowing. As this court has said, it is the jury’s duty to draw whatever permissible inferences it may from circumstantial evidence that usually forms the basis for finding criminal intent, and to find a verdict founded on whatever permissible inferences the jury chooses to draw. Roberts v. United States, 151 F.2d 664 (5th Cir. 1945). In United States v. Lawrence, 427 F.2d 95 (1970), a recent per curiam opinion of this court, to the inference of criminal intent from the unexplained possession of a recently stolen item was added a corollary inference of criminal intent from the false explanation of possession. In Barshop v. United States, 191 F.2d 286 (5 Cir. 1951), reh. denied, 5 Cir., 192 F.2d 699, cert. denied, 342 U.S. 920, 72 S.Ct. 367, 96 L.Ed. 688 (1952), we held that falsification by a defendant furnished direct evidence of willfulness to support evidence on that issue which was otherwise circumstantial. In the recent United States v. Finance Committee to Re-Elect the President, D.C.Cir., 507 F.2d 1194 at p. 1197 (decided December 2, 1974), of the slip opinion it was said, “Secrecy or openness in the involved transaction are clear indicators of guilty intent or its absence.” The Finance Committee case offers some striking parallels: there and here sums of money were received and stowed away without proper and prescribed formalities and book entries. Appellant here specifically admitted that he deliberately avoided putting the $1,200 where it would show up in his trust accounts.

As the Supreme Court said in Ashcraft v. Tennessee, 327 U.S. 274, 278, 66 S.Ct. 544, 546, 90 L.Ed. 667 (1946):

* * * Wilful concealment of material facts has always been considered as evidence of guilt. * * *

In Cummings v. United States, 398 F.2d 377, 380 (8th Cir. 1968), the court said:

* * * We add that the defendant’s attempted concealment of material facts is evidence of guilt.
* * >is 4s * *

The jury here hád before it evidence that, at one time, appellant had been open and candid, i. e., in reporting his receipt of the money to the Probate Court. At another time, in the August 16, letter, he falsified in such a manner that his consciousness of his own guilt was a more than reasonable inference. It was for the jury to weigh all this. There was other circumstantial evidence of criminal intent, but we need not discuss it in view of the convincing force of the August 16, letter.

II

Appellant also assigns error to the refusal of the trial court to admit defendant’s Exhibits 13 through 18. These consisted of his petition filed in the Probate Court to be allowed to sell Cherlyn’s automobile, the order of court setting a date for the hearing of the petition, a copy of the acknowledgment made to the Probate Court by Veterans Administration that it had received the petition and waived further service, an order of the court filing the acceptance of service, an order of the court appointing a guardian ad litem to represent the interest of the minor on the hearing, and the order of the court authorizing the sale of the automobile at public outcry, after newspaper notice. Substantially the same facts are recited in Government Exhibit No. 5, the petition for confirmation of January 28, 1972. Appellant also concedes that he was allowed to testify that these things were done.

The Government asserts that, if there was error in refusing the exhibits, it was harmless error since no one disputed the facts that the exhibits established, and since these same facts had been established by oral testimony. Barshop v. United States, supra.

We agree that the error if any was harmless. The real question under Count Two was what was the appellant’s intent SUBSEQUENT to the sale, and what he intended to do when he prepared- the excluded documents was really irrelevant to the charge.

III

Appellant also complains in his brief about the jury instructions, but we think if there was error in any portions of the charge, it was in portions that related to counts in the indictment on which the jury acquitted the appellant. Appellant does not connect up any asserted error with Count Two.

IV

The statute, quoted above, evidently places under its ban a wide variety of offenses, large and small. Within correspondingly wide limits, the sentence is within the discretion of the trial court. While we hold that appellant betrayed himself with clear evidence of his consciousness of guilt, as our analysis of the facts has shown, we do not wish to be understood as classing him among the most heinous offenders the statute might reach. There were mitigating factors for the trial court to consider. There was no actual loss of funds to the beneficiaries under any of the guilty findings of the jury. The records on the transaction made up to January 28, 1972, made it impossible for the $1,200 shortage to go permanently unnoticed. We note that, upon return of our mandate, under Rule 35 the trial court has 120 days to reconsider the sentence after our remand. As we said in Lott v. United States, 309 F.2d 115, 126 (5th Cir. 1962):

* * * Needless to say, the reduction of a valid sentence after affirmance is within the discretion of the trial court. Substantial time has elapsed since the appellants were sentenced. No doubt, the distinguished trial judge has given consideration to the sentences imposed. Considerations based on compassion and mercy are to be determined by the trial court.
Affirmed.


source: Caselaw Access Project

author: WISDOM, Circuit Judge.

license: Public Domain

text:
    Raymond D. LOUVIERE et al., Plaintiffs-Appellants, v. SHELL OIL COMPANY et al., Defendants-Appellees.
    No. 73-3686.
    United States Court of Appeals, Fifth Circuit.
    March 6, 1975.
    Rehearing and Rehearing En Banc Denied July 3, 1975
    See 515 F.2d 571.

      W. D. Atkins, Jr., Lafayette, La., for plaintiffs-appellants.
    John O. Charrier, Jr., New Orleans, La., for Shell Oil Co.
    Donald A. Hoffman, Thomas W. Thorne, Jr., New Orleans, La., for Pneumatic Service & Equip. Co. and Ins. Co. of No. America.
    Charles D. Marshall, Jr., New Orleans, La., for American Marine Corp.
    Pelicien P. Lozes, New Orleans, La., for Avondale Shipyard.
    W. K. Christovich, New Orleans, La., for Pacific Movible et al.
    Francis G. Weller, New Orleans, La., for Weigand Co. et al.
    W. Eugene Davis, New Iberia, La., for Texsteam Corp.
    Alfred S. Landry, New Iberia, La., for Pneumatic Service & Equip.
    James E. Diaz, Lafayette, La., for Superior Oil Co.
    Joel L. Borrello, New Orleans, La., for Argonaut Ins. Co.
    Before WISDOM and BELL, Circuit Judges, and BREWSTER, District Judge.
   WISDOM, Circuit Judge.

Raymond Louviere was injured when a hot water heater exploded in the living quarters of a fixed platform in the Gulf of Mexico. Almost three years after the explosion, he filed suit for damages. The district court dismissed his suit, holding that his claim had prescribed. Louviere appeals, alleging that a suit filed by his employer’s workmen’s compensation carrier against the same defendants interrupted the running of prescription. We reverse and remand.

Louviere was employed by Movible Offshore, Inc. as a cook in the living quarters of a fixed platform located on the outer Continental Shelf off the Louisiana coast. On May 6, 1970, a hot water heater exploded injuring some workers and killing others. Louviere suffered broken ribs, a broken collar bone, an injured back, and burns. After surgery on his back, he returned to work from time to time but on each occasion found himself unable to continue working. A psychiatrist concluded that the explosion had caused multiple trauma, and that Louviere later suffered an anxiety neurosis and depression. He has, allegedly, had severe pain from his injuries and has had episodic crying spells. He now asserts that he is totally and permanently disabled.

After the accident, Movible Offshore’s compensation carrier, Argonaut Insurance Company, paid Louviere benefits under the terms of the Longshoremen’s and Harbor Workers’ Compensation Act. 33 U.S.C. §§ 901 et seq. Because Movible Offshore did not contest Louviere’s right to compensation, benefits were paid without entry of an award by the deputy commissioner. Argonaut, as Movible’s subrogee, then filed a suit in federal district court on May 5, 1971, seeking reimbursement for workmen’s compensation benefits paid as a result of the explosion. The complaint named as defendants, the owner of the platform, the manufacturers and sellers of the heater and some of its components, and the builder of the living quarters.

The complaint alleged that the negligence of the defendants was the proximate fBause of the explosion; that certain employees were injured or killed in the explosion; that, as a result of the explosion, Argonaut had become obligated to pay workmen’s compensation benefits to those employees under the Longshoremen’s and Harbor Workers’ Compensation Act; and that, under the provisions of the Act, it was entitled to recover against the defendants all the benefits it had paid or might become obligated to pay.

On February 27, 1973, while Argonaut’s suit was pending but before trial, Louviere filed suit, seeking to recover damages from the same defendants, alleging their negligence as the cause of his injuries. The defendants filed a plea of prescription, alleging that the one year prescriptive period allowed under Louisiana law for suit on a tort claim had passed and that Louviere’s claim was barred. They argue that Argonaut’s suit was not effective to interrupt prescription because it was barred by provisions of the Longshoremen’s and Harbor Workers’ Compensation Act. 33 U.S.C. § 933.

The Louisiana one year period of limitations governing personal injury actions, Art. 3536, La.Civ.Code Ann., is applicable to this action. Chevron Oil Co. v. Huson, 1971, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296. Also governing, in the absence of applicable federal law, is LSA-R.S. 9:5801, providing for interruption of prescription by the filing of a suit.

The appellees seek to avoid application of this rule in favor of Louviere, by invoking the rule that a suit that “does not state any right or cause of action whatsoever” will not interrupt prescription. Callendar v. Marks, Sup.Ct.1936, 185 La. 948, 952, 171 So. 86, 87. They contend that Argonaut’s suit falls within this rule, because Section 33 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 933 contemplates that an employer may sue a third party only where he has paid compensation benefits under an award entered by the deputy commissioner. They would thus have us impute to the assignment provision of Section 33 an exclusory effect, preempting any nonstatutory remedies otherwise available to an employer to recoup from a third party tortfeasor compensation benefits paid under the Act. Louviere argues that, although Section 33 makes the right to sue as a statutory assignee contingent on payment of compensation under an award, it was not designed to supplant parallel, nonstatutory remedies available to the employer and did not bar Argonaut’s suit, as the employer’s subrogee.

The threshold questions we must consider are whether Section 33 of the Act preempts whatever nonstatutory rights of action an employer might have for compensation payments to an employee, and if not, whether the employer does, in the absence of a statutory bar, have such a right of action in the circumstances this case presents, and whether suit to enforce such a right is effective to interrupt prescription of the employee’s claim for damages.

I.

The contention that Section 33 of the Act should be construed as providing the sole remedy of an employer against third persons, preempting other nonstatutory remedies, was addressed and rejected in Federal Marine Terminals, Inc. v. Burnside Shipping Co., 1969, 394 U.S. 404, 89 S.Ct. 1144, 22 L.Ed.2d 371. There a longshoreman had been killed by a fall into an unguarded hatch. His widow, after accepting compensation under an award, filed a wrongful death action against the shipowner, Burnside, within six months of the award. Burnside, in turn, filed a separate action in the same federal court seeking indemnification from Marine Terminals, the longshoreman’s employer. Marine Terminals, then counterclaimed against Burnside for “all sums which have been paid or will be paid” as compensation benefits, alleging that Burnside, as owner and operator of the vessel, had breached its duty to the stevedore to provide a safe place of work, causing the death which triggered the stevedore’s statutory obligation to pay compensation. The district court dismissed the counterclaim and the court of appeals affirmed, both reasoning that the statutory remedy was exclusive and that the employer could not sue except as a statutory assignee.

The Supreme Court reversed. First, it held that Section 33 of the Act is not the exclusive source of an employer’s remedies to recoup compensation payments from negligent third parties. The keystone of its analysis was that Section 33 “gave the employer, in return for his absolute liability to the [employee], part of the latter’s rights against others” and “the legislative grant of a new right does not ordinarily cut off or preclude other nonstatutory rights in the absence of clear language to that effect.” 394 U.S. at 412, 89 S.Ct. at 1149. The Court, looking to the language of the statute and its legislative history, found nothing to suggest a purpose to limit the employer’s remedy against third persons to assignment to the rights of the compensated employee. The Court particularly observed that whereas Congress had explicitly made the employer’s absolute liability for compensation exclusive of any tort liability, it attached no such exclusivity to the employer’s right to sue third parties as the assignee to the rights of the employee.

Liberty Mutual Insurance Co. v. United States, 2 Cir. 1961, 290 F.2d 257, and Joyner v. F. & B. Enterprises, 1971, 145 U.S.App.D.C. 262, 448 F.2d 1185, on which the appellees rely, are, we conclude, inconsistent with Burnside. Liberty Mutual involved the same longshoreman-stevedore-shipowner triangle that was present in Burnside. The stevedore’s compensation carrier paid benefits to the employee under an award. When the employee failed to sue, the employer filed suit against a third party, four months after the award, but only eleven days before his suit would have been barred by the governing statute of limitations. Had he waited the statutory period of six months, to file as a statutory assignee, his claim would have been barred. Chief Judge Lumbard, in dissent, argued that although the employer was not entitled to sue as a statutory assignee until six months after the award, he should be permitted to seek recoupment as an equitable subrogee. His line of reasoning, similar to that of the Court in Burnside, was that the statutory assignment of rights granted by Section 33 conferred an additional remedy on the employer but did not preempt pre-existing non-statutory remedies. Nevertheless, the majority upheld the dismissal of the employer’s suit, finding that, absent statutory assignment, neither the employer nor its subrogated compensation carrier was entitled to initiate an action against an alleged third party tortfeasor.

The Court of Appeals for the District of Columbia reached the same conclusion in Joyner v. F. & B. Enterprises, 1971, 145 U.S.App.D.C. 262, 448 F.2d 1185. There the defendant in a suit filed by the employee attempted to join the employer, who had paid compensation without an award, as a real party in interest under Rule 17 of the Federal Rules of Civil Procedure. The court upheld the denial of joinder, on the ground that an employer who pays compensation without an award lacks a substantive right to sue a third party for reimbursement of benefits paid. In such circumstances, the court concluded, as had the court in Liberty Mutual, that the employer’s only right was to reimbursement out of his employee’s recovery against third parties — a remedy the courts have found implicit in the statutory scheme, although it is not specifically granted by the statute. See Pope & Talbot, Inc. v.‘ Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; The Etna, 3 Cir. 1943, 138 F.2d 37.

Both decisions appear to impute to Section 33 an exclusory effect. To this extent they are, we conclude, inconsistent with the holding and reasoning of Burnside. Both appear to have decided that recognition of an independent, non-statutory right of action would be inimical to the legislative purpose evidenced by the statutory scheme. Burnside apart, we find a general poverty of support for that conclusion.

First, courts and commentators have recognized the objective under the Act of “placing the burden ultimately on the company whose default caused the injury.” Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 324, 84 S.Ct. 748, 754, 11 L.Ed.2d 732, cited in Burnside, 394 U.S. at 420, n. 22, 89 S.Ct. 1144, 22 L.Ed.2d 371. See generally, 2 Larson’s Workmen’s Compensation Law §§ 71 and 76 (Cum.Supp.1974). Similarly, a recognized purpose of the Act is “to protect employers who are subjected to absolute liability by the Act.” Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. at 412, 74 S.Ct. at 206.

Section 33, if exclusive, is manifestly incapable of advancing these related objectives. One commentator has identified nine distinct situations where a holding that the Section 33 remedy is exclusive would “deprive the employer of a valuable prior remedy, and present the third party with a gratuitous immunity.” 2 Larson’s Workmen’s Compensation Law § 77 at 250.102-.103 (Cum.Supp. 1974). As that commentator aptly admonishes, “before a statutory remedy is construed to be an implied abolition of all antecedent remedies, it should be shown that the new remedy covers the ground previously dealt with by the old, without substantial lacunae where nothing is put in the place of the remedy abolished.” Id. at 250.102. Section 33 does not meet this test.

The statutory scheme is also designed to assure prompt and certain payment of benefits to the injured employee. To this end, the Act provides:

(a) “Compensation under this chapter shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer.
(b) The first installment of compensation shall become due on the fourteenth day after the employer has knowledge of the injury or death . . .”33 U.S.C. § 914.

The Act thus directs that compensation shall ordinarily be paid to an injured employee without an award. The manifest purpose is to assure prompt aid to the employee when his need is greatest. See American Stevedores, Inc. v. Porello, 1946, 330 U.S. 446, 455-56, 67 S.Ct. 847, 91 L.Ed. 1011. To predicate the employer’s right to sue for indemnity on payment under an award would tend to discourage the prompt and voluntary payment of compensation that the Act contemplates, since the employer would be compelled to controvert his obligation to pay compensation, to force an award and protect his right to pursue a remedy against third parties. Certainly we find no merit in the appellee’s suggestion that by making statutory assignment contingent on payment of compensation under an award, Congress implied disfavor of voluntary payment and intended to deprive an employer who pays compensation voluntarily of his independent remedies against wrong-doing third parties.

This limitation on statutory assignment was imposed for a specific and limited purpose. Section 33, as originally enacted, provided that acceptance of compensation worked a complete assignment to the employer of all the employee’s rights against third persons. Act of March 4, 1927, ch. 509, 44 Stat. 1424. This right was granted “in aid of the employer”, not as a limitation on his right to nonstatutory recoupment. The Etna, 3 Cir. 1943, 138 F.2d 37, 40. But the effect of the assignment was to deprive the employee of any right to sue on his own behalf. His claim was thereby entrusted to his employer, who was entitled to file suit, or to compromise the claim, but whose interest in pursuing it was not always sufficient to make him a satisfactory representative of his employee’s interests. In 1938, the Act was amended to make payment of compensation under an award a prerequisite to statutory assignment, with “the apparent purpose ... to provide payments during the period while the employee is unable to earn, when they are sorely needed, without compelling him to give up his right to sue a third party when he is least fit to make a judgment of election.” American Stevedores, Inc. v. Porello, 1946, 330 U.S. 446, 456, 67 5. Ct. 847, 852, 91 L.Ed. 1011. Act of June 25, 1938, ch. 685, § 12, 52 Stat. 1168.

The thrust of the amendment was thus to protect the employee against premature and unwitting surrender to his employer of his right to sue on his own behalf. See H.R.Rep.No.1945, 75th Cong., 3d Sess. 9 (1938); S.Rep.No.1988, 75th Cong., 3d Sess. 9 (1938). It attempted to do so by preserving the employee’s right to sue on his claim. But there is nothing to suggest that the amendment was intended to divest the employer of his right to sue on his own behalf for recoupment from the party at fault. Nothing in that right is prejudicial to the right of the employee to pursue his own remedy. The employer’s suit or settlement would in no way bind the employee or prevent him from enforcing his own rights.

In short, we find nothing in the statutory scheme or its legislative history that requires leaving the employer who voluntarily pays compensation without a remedy against culpable third parties. On the contrary, we conclude that such a holding would frustrate the congressional objectives of providing prompt compensation to injured employees and of placing the ultimate burden of loss on the party at fault. We therefore hold that in the circumstances this case presents the employer who pays compensation without an award is not barred by Section 33 from pursuing whatever non-statutory rights he may have against third party wrongdoers.

II.

We must also disagree with the district court’s apparent conclusion that Argonaut had no right of action for recoupment sufficient to interrupt prescription of Louviere’s claim, even in the absence of a statutory bar to assertion of non-statutory remedies. We conclude that the employer, or as here, his subrogated insurer, is entitled to indemnity from a wrongdoing third party.

Louisiana law is determinative of this question of nonstatutory recoupment. That law, no less than the common law, is fundamentally hostile to unjust enrichment. See, e. g., La.Civ.Code Art. 1965 (1870). Louisiana courts have, accordingly, long recognized an action for indemnity, although its codal basis has been a source of some dispute. Indeed, the courts have recognized an independent nonstatutory right of an employer paying workmen’s compensation benefits to recoup those payments from a wrongdoing third party. See, e. g., London Guarantee Accident Insurance Co. v. Vicksburg, S. & P. R. Co., 1923, 153 La. 287, 95 So. 771; Foster and Glassell Co. v. Knight Brothers, Inc., 1922, 152 La. 596, 93 So. 913. Although these cases have been disavowed as inconsistent with the statutory scheme of the Louisiana Workmen’s Compensation Act, the validity of the principle they embody is not challenged. See Minyard v. Curtis Products, Inc., 1967, 251 La. 624, n. 2, 205 So.2d 422, 430, n. 2. More recently, in a suit for indemnity by a subcontractor against the manufacturer of defective materials, the Louisiana Supreme Court reconsidered the theoretical basis of the action in indemnity. Minyard v. Curtis Products, Inc., 1967, 251 La. 624, 205 So.2d 422. Surveying recent decisions, the Court concluded that the principles proscribing unjust enrichment “were the underlying reasons for the decision of those eases which have allowed recovery under the concept of indemnity” and that later cases have “more properly characterized the action for indemnity as an action or claim in quasi contract for unjust enrichment.” 205 So.2d at 431. “Under this general theory of quasi contractual obligations founded upon an unjust enrichment”, the Court cited the “corrective or supplementary” civil law remedy of the action de in rem verso as the proper theory of recovery. The elements of this action, as elaborated by the courts in France, and applied in Minyard are: (1) there must be an enrichment, (2) there must be. an impoverishment, (3) there must be a connection between the enrichment and resulting impoverishment, (4) there must be an absence of “justification” or “cause” for the enrichment and impoverishment and finally (5) there must be no other remedy at law. 205 So.2d at 432. See Nicholas, Unjustified Enrichment in Civil Law, Part I, 36 Tul.L.Rev. 605, 610 (1962).

Argonaut’s complaint, we conclude, alleged facts sufficient to support relief under this theory; alleging specifically that the fault of the defendants injured the employee whom the plaintiff then became obligated to, and did in fact, compensate. Thus the alleged tortfeasors were enriched at the expense of the employer’s subrogated insurer, without legal justification.

III.

The remaining question is whether the suit filed by Argonaut interrupts prescription of the employee’s right of action against the same defendants. We are compelled, by decisions of the Louisiana Supreme Court, to hold that it does. Most directly pertinent is the decision in National Surety Corp. v. Standard Accident Insurance Co., 1965, 247 La. 905, 175 So.2d 263.

There the employer’s subrogated insurer had paid benefits to an injured employee pursuant to the Louisiana Workmen’s Compensation Act and had subsequently filed a suit against an alleged third party tortfeasor seeking recovery of the amount paid. More than one year after the accident, the employee intervened in the action, seeking damages, and the defendant pleaded prescription. The court held that the prescription running in favor of the tortfeasor was interrupted as to the injured employee by the timely filing of suit by the employer’s compensation carrier. The employee’s claim, the court concluded, was on the same cause of action, for purposes of LSA — R.S. 9:5801, as the employer’s carrier’s suit. “Cause of Action”, for those purposes, was defined as “an act on the part of a defendant which gives rise to a plaintiff’s cause of complaint”. 175 So.2d at 266. This analysis, the court held, was unaffected by the fact that the employee’s claim had not been included in the original suit and substantially increased the aggregate demand against the defendant. Increased demand, the court noted, does not betoken a new cause of action. The court emphasized that, although the employee had been neither present nor represented in the original action, “all prescriptions affecting the cause of action sued upon are interrupted as to all defendants by the commencement of a civil action in a court of competent jurisdiction.” 175 So.2d at 268.

The Louisiana Supreme Court, in a recent decision, has reaffirmed the reasoning and result of National Surety and overruled a court of appeals decision that attempted to narrow its implications. Nini v. Sanford Brothers, Inc., La.1973, 276 So.2d 262, overruling American Surety Insurance Co. v. Insurance Company of North America, La.App. 1969, 220 So.2d 163. The state court of appeals had held that a’ suit by one insured against another for the deductible portion of its losses did not interrupt prescription to permit a subsequent suit by the plaintiff’s subrogated insurer against the defendant’s insurer for amounts expended under its policy. National Surety, the court concluded, could not be read as extending the effect of interruption in favor of “all potential plaintiffs.” 220 So.2d at 165. Furthermore, the court reasoned, National Surety was distinguishable as the plaintiff there had filed a timely intervention pursuant to specific provisions of the Louisiana Workmen’s Compensation statute.

The Supreme Court in Nini found this reasoning inconsistent with National Surety. 276 So.2d at 266, n. 6. It underscored National Surety’s emphasis of the rule that “all prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants”. 276 So.2d at 266. And it cited National Surety for the broad proposition that the effect of interruption of prescription was to be determined by the effect of the original petition in giving notice to the defendant of a claim arising out of the same cause of action, viz. the same set of operative facts. In broad language, the Court observed that “the essence of interruption of prescription by suit has been notice to the defendant of legal proceedings based on the claim involved” so that prescription is interrupted “[wjhen the defendant knows or should know, prior to the expiration of the prescriptive period, that legal demands are made upon him from the occurrence described in the petition filed”. 276 So.2d at 264-65.

In another context we might be loathe to take the broad language of these opinions of the Louisiana Supreme Court at face value. But the analogy of Louisiana Workmen’s Compensation Law to the Longshoremen’s and Harbor Workers’ Compensation Act persuades us that National Surety and Nini should control the disposition of this appeal. We conclude, accordingly, that suit by the employer’s subrogated insurer to recover benefits paid an injured employee under the Longshoremen’s and Harbor Workers’ Compensation Act will interrupt prescription to permit a subsequent suit by the employee for his damages arising out of the same occurrence. The employer-employee nexus under the Act assures that suit by the employer, or by his subrogated insurer, will necessarily include allegations of injury to its employee, and thereby give clear notice to the defendants of the potential claim of that employee.

We therefore hold that Argonaut’s suit was effective to interrupt prescription of Louviere’s claim. In so holding, we imply no opinion as to the merits of Louviere’s claim or, for that matter, the claim of Argonaut. We reverse the judgment of the district court and remand this case for further proceedings consistent with this opinion.

      . An insurer paying workmen’s compensation benefits under the Act, is subrogated to the employer’s interests to the extent of benefits paid. 33 U.S.C. § 933(h). Cf. Hartford Accident & Indemnity Co. v. Byles, La.App.1973, 280 So.2d 624.

      . The district court dismissed Argonaut’s independent suit on June 6, 1974. The reason given in the minute entry was that the compensation payments were not made under a formal award.

      . Argonaut’s suit also named Movible Offshore as a defendant. Because an employer’s liability under the Act is exclusive of all other liability to the employee, Movible should be dismissed from the suit. 33 U.S.C. § 905.

      . Jurisdiction of this action is grounded on 43 U.S.C. §' 1333, the Outer Continental Shelf Lands Act, which extends coverage of the Longshoremen’s and Harbor Workers’ Compensation Act to accidents taking place on fixed platforms such as the one involved here. 43 U.S.C. § 1333(c). The law applicable to these structures is the federal law of the United States and the law of the adjacent state applied as federal law in the absence of inconsistent federal law. 43 U.S.C. § 1333(a)(2); Rodrigue v. Aetna Casualty & Surety Co., 1969, 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360.

      . This provision reads:
      “The filing of a suit in a court of competent jurisdiction shall interrupt all prescriptions affecting the cause of action therein sued upon, against all defendants, including minors and interdicts.” LSA-R.S. 9:5801.

      . A number of different theories have, over the years, been advanced by the Louisiana Supreme Court to support an action for indemnity in circumstances similar to those present in this case — among them direct action in tort under Article 2315, quasi-contract, and legal subrogation. See, for example, Appalachian Corporation v. Brooklyn Cooperage Co., 1922, 151 La. 41, 91 So. 539; Foster & Glassell Co. v. Knight Bros., 1922, 152 La. 596, 93 So. 913; London Guarantee Accident Insurance Co. v. Vicksburg, S. & P. R. Co., 1923, 153 La. 287, 95 So. 771; Marquette Casualty Co. v. Brown, 1958, 235 La. 245, 103 So.2d 269. See generally, Minyard v. Curtis Products, Inc., 1967, 251 La. 624, 205 So.2d 422. But see, Forcum-James Co. v. Duke Transportation Co., 1957, 231 La. 953, 92 So.2d 228.

      . Some of these decisions have come upon hard times as of late. London Guarantee has been overruled to the extent that it permits an unsubrogated insurer to sue for what is in effect “damage sustained by reason of a contractual obligation.” Forcum-James Co. v. Duke Transportation Co., supra, 231 La. at 962, n. 3, 93 So.2d at 231, n. 3. The authority of London Guarantee, as well as of Foster & Glassell was further undermined in Marquette Casualty Company v. Brown, 1958, 235 La. 245, 103 So.2d 269, to the extent that they suggested that a nonstatutory right to recoupment survived the enactment of the parallel statutory right of action. 235 La. 245, n. 3, 103 So.2d at 272, n. 3. Nevertheless, the reasoning of these cases may survive to the extent that it does not run afoul of a specific statutory scheme. See Minyard v. Curtis Products, Inc., 1967, 251 La. 624, n. 2, 205 So.2d 422, 430, n. 2.

      . The employer is guaranteed the right to sue on his own behalf by the statute. LSA-R.S. 23:1101. He does not, however, sue as a subrogee whose rights are derivative of those of his employee. The statute is held to grant him an independent right of action against wrongdoing third parties. Marquette Casualty Co. v. Brown, 1958, 235 La. 245, 103 So.2d 269; Board of Commissioners of Port of New Orleans v. City of New Orleans, 1953, 223 La. 199, 65 So.2d 313.

      . A persuasive argument might be made that the holding of National Surety should not be extended beyond the special statutory context in which it arose. There was a line of authority to the effect that “[f]rom a single tortious injury to an employee there arises but one cause of action . . . and all damages flowing therefrom, which may include several different and distinct elements, are recoverable in one and the same suit.” Board of Commissioners v. City of New Orleans, 1953, 223 La. 199, 65 So.2d 313, 314-15; Marquette Casualty Co. v. Brown, 1958, 235 La. 245, 103 So.2d 269. Indeed, the Court in National Surety placed substantial reliance on these cases, while inserting language with broader implications. The narrower view would, it appears, be most consistent with traditional jurisprudence, holding that prescription is interrupted only as to those persons who are parties or privies to the original action. See, e. g., Geisenberger v. Cotton, 1906, 116 La. 651, 40 So. 929; Becnel v. Waguespack, 1888, 40 La.Ann. 109, 3 So. 536; Flower v. O’Connor, 1841, 17 La. 213; Blanc v. Dupre, 36 La.Ann. 847. Under this view, the general test of interruption of prescription by filing of suit has been not only notice to the defendant of the plaintiff’s claim but also of his intention to assert it. See Comment, 9 Tul.L.Rev. 285, 286.
      Nevertheless, the Court in Nini has, to all appearances, rejected this narrower view. There National Surety was not treated as a narrow exception carved out of the general rule but as illustrative of the general rule itself. It is notice not of the plaintiffs intention to assert his demand, but of any demand stemming from the same tortious occurrence or conduct, which interrupts prescription as to subsequent demands on that “cause of action,” at least to the extent that the first demand sufficiently implies the second. Thus, the narrower view of National Surety, whatever its intrinsic merit, is not the current view of the Louisiana Supreme Court.


author: DYER, Circuit Judge:

text:
    Kenneth WHITE, Plaintiff-Appellant, v. MAR-BEL, INC., and Mr. Dan Marshlack, Defendants-Appellees.
    No. 74-1101.
    United States Court of Appeals, Fifth Circuit.
    March 6, 1975.
    Rehearing and Rehearing En Banc Denied April 21, 1975.

      Irwin C. Alter, Howard B. Rockman, Chicago, Ill., Harold R. Ainsworth, New Orleans, La., Marvin E. Barkin, Tampa, Fla., for plaintiff-appellant.
    Stefan M. Stein, Tampa, Fla., for defendants-appellees.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   DYER, Circuit Judge:

White brought this suit for infringement of United States Patent No. 3,496,-812, issued February 24, 1970, for a “Plastic Cutting Device and Method.” The defendants, Mar-Bel, Inc., a Florida corporation, and Marshlack, its majority stockholder, denied infringement and validity.

The district court submitted five special interrogatories to the jury which found that the patent was valid, that defendants’ infringement was wanton and willful, and that the court should treble the damages in entering judgment. White moved for entry of judgment in accordance with the verdict, including treble damages, attorney’s fees and injunctive relief against future infringement. Defendants moved for a judgment notwithstanding the verdict or, alternatively, for a new trial. Although the district court found that there was substantial competent evidence to support the jury’s finding of infringement, novelty and utility, it granted a judgment NOV on the ground that the patent was invalid as a matter of law by reason of obviousness within the meaning of 35 U.S.C.A. § 103. Pursuant to Rule 50(c) Fed.R.Civ.P., the court conditionally denied defendants’ alternative motion for a new trial, declined, in the exercise of its discretion, to award treble damages, and found that this was not an exceptional case justifying an award of attorney’s fees under 35 U.S.C.A. § 285.

White appeals from the judgment of invalidity and from the conditional denial of treble damages. We reverse the judgment of invalidity, and affirm in all other respects.

Since we are confronted with the narrow issue of nonobviousness, and the subsidiary question of treble damages, a detailed explication of the background development of plastic laminate material, and of the development of the White-Meyer (White) invention and its infringement by the defendants is capsulated.

Plastic laminate is a very rigid, hard, durable sheet of plastic which cannot be scratched and which has a long wearability. Typical of this material is the commonly known brand name “Formica.” Plastic is very brittle, and if cut by shearing, its molecules do not stretch but break, and thus the material cracks or fractures, leaving rough edges. Until White’s invention, no device or method was known which would cut a piece of rigid plastic laminate material and leave a smooth edge. The carbide-tipped saw blades and steel-tipped routers used were expensive and had to be frequently sharpened or replaced. They invariably left a rough, cracked or chipped edge on the plastic which required masking by stainless steel turned molding or edge-banding techniques.

White and Meyer started manufacturing kitchen cabinets in 1951. In 1959, their corporation, White-Meyer Wood Products, Inc. produced plastic laminated kitchen cabinets with edge banding on the doors. To make the cabinets more cost competitive, they set about experimenting to produce a better cutter, and finally hit upon the machine and method now the subject of this suit.

There is no dispute concerning the claims of the patent alleged to have been infringed (claims 1, 2, 3, 6, 10 and 11). The plastic cutting device claims of the White patent (claims 1-9) áre directed to a support for a plastic sheet, and a pair of rotating cutters through which the plastic sheet is passed. One of the cutters is a single rotating disc with a smooth periphery, and the other cutter is a pair of spaced-apart rotating discs between which a portion of the single disc extends. The distance between the pair of discs is maintained slightly greater than the thickness of the single disc by a spacer, thereby forming a die (instead of a shear). The single disc is interleaved between the pair of discs, and is rotated in one direction while the pair of discs is rotated in an opposite direction. The process claims of the White patent (claims 10-12) describe a process for severing a sheet of rigid plastic material by passing the plastic through a die formed between a pair of rotating cutters, whereby the die deforms the plastic to the degree where severance occurs.

The critical feature of White’s patent is the formation of a die rather than a shear, whereby the plastic is deformed as it passes between the cutters leaving a smooth edge which requires no sanding or deburring. Because the discs do not touch, no heat or friction is created, and the discs far outlast a saw or router blades. There are no teeth to wear out, and the discs rarely need sharpening, thus maintenance and operating costs are materially reduced.

It was undisputed that the difference between a die and a shear is that in a die movement there must be clearances between the male and female components in order to perform. In a shear action the components must touch in order to perform. White’s patent describes a die to be formed between the cutter discs.

Novelty and utility having been found by the jury upon substantial competent evidence, the single question, with respect to validity, is whether the device was non-obvious in light of the prior art. Ag Pro, Inc. v. Sakraida, 5 Cir. 1973, 474 F.2d 167. That obviousness is a question of law cannot be doubted, but it must rest on factual underpinning. As Judge Ainsworth has succinctly put it:

While the ultimate question of obviousness is one of law, Graham v. John Deere Company of Kansas City, [383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545] supra; Garrett Corporation v. American Safety Flight Systems, Inc., 5 Cir., 1974, 502 F.2d 9, this issue nevertheless lends itself to the following basic factual inquiries: (1) the scope and content of the prior art, (2) the difference between the prior art and the claims at issue, and (3) the level of ordinary skill in the art.

Gaddis v. Calgon Corporation, 5 Cir. 1975, 506 F.2d 880 at 884. The scope and content of the prior art considered by the court and jury included a pair of scissors, a pair of tin snips, the Hood, Fore and Sabel patents, introduced by the defendants, and the White file wrapper patents, including the Booth patent, plus the testimony of the parties and witnesses, including expert opinions.

The Booth patent, cited by the Patent Office, discloses a sheet metal cutting device with a single rotary cutting disc interleaved between a pair of flat-edged, rotating discs, which are pressed against and held in contact with the single disc. This relationship of discs forms a shear as distinguished from the die formation in White to cut plastic material.

Hood discloses a plurality of interleaved flat-edged discs, each upper disc being in contact with a pair of lower discs to create a shearing action on any substance .passed between the discs, and used, for instance, to cut foil such as gold for dental material.

Fore discloses a rotating sharp-edged cutting disc interleaved between a pair of flat-edged portions of a grooved cutting disc, the upper disc being in contact with the grooved disc and used for cutting leather into strips.

Sable discloses a slitting and cutoff mechanism for sheet material and is admittedly of relatively less value than Hood and Fore.

The district court properly instructed the jury with respect to making a finding of the relative closeness of the Booth ■file history patent and the Hood and Fore patents. We think it was implicit in the verdict of validity that the jury found Hood and Fore were no closer to White than the file history Booth patent. Equally implicit in the verdict of validity is a finding that the difference between prior art and the claims at issue are the teachings in the former of the use of shear devices for cutting metal, foil, leather and paper, contrasted with White’s invention of a die deformation apparatus or process for cutting plastic and leaving a smooth edge. While the legal conclusion on patent validity may be reviewed, under the John Deere guidelines,

[i]f the ultimate issue of validity depends on subsidiary fact questions, it is the court’s duty to instruct the jury that it should return one verdict if the facts are found one way and a different verdict if the facts are found otherwise. In such event, as in other cases tried to a jury, the reviewing court will presume that the disputed matters of fact have been resolved favorably to the prevailing party in accordance with the trial judge’s instructions. (Footnotes omitted). Panther Pumps & Equipment Co., Inc. v. Hydrocraft, Inc., 7 Cir. 1972, 468 F.2d 225, 228.

As we have seen, the Patent Office issued the White patent over the reference to Booth. Hood and Fore were not considered by the Patent Office, but the jury found they were no closer to White than Booth. In this context the patent is presumed valid and the burden of establishing invalidity rests upon the party asserting it. 35 U.S.C.A. § 282. Of course, the presumption of validity is weakened upon a showing of pertinent prior art not considered by the Patent Office. Gaddis, supra; Beckman Instruments, Inc. v. Chemtronics, Inc., 5 Cir. 1970, 428 F.2d 555, 557, cert. denied, 400 U.S. 956, 91 S.Ct. 354, 27 L.Ed.2d 264. But one who assails the validity of a patent bears a heavy burden of persuasion. Hobbs v. United States Atomic Energy Commission, 5 Cir. 1971, 451 F.2d 849, 864. And where, as here, “it is shown that the patent office considered prior art as close to the patented invention as any suggested to the court, the court should be extremely reluctant to substitute its opinion for the expertise of the patent office.” Ingersoll-Rand Co. v. Brunner & Lay, Inc., 5 Cir. 1973, 474 F.2d 491, 496, cert. denied, 414 U.S. 865, 94 S.Ct. 125, 38 L.Ed.2d 117.

It would be inutile to repeat all that we have already said concerning the inability to cut a smooth edge in plastic laminate until White’s invention of a device and method of cutting by a die deformation. The non-obviousness of the invention is bolstered also by the fact that one skilled in the art would not have searched for .a solution to the problem in the direction White took. Defendants’ expert unequivocally stated that he would try to get the blades as close as possible — without any intervening space — to successfully cut plastic laminate. In other words he, as one skilled in the art, would have been discouraged to search for the die concept conceived by White. This is supportive of non-obviousness. United States v. Adams, 1966, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572; Brunner & Lay, Inc., supra, 474 F.2d at 497. Moreover, the defendants advertised that their infringing apparatus was “A New Breakthrough in Laminate Plastic Cutting.” We agree with the defendants’ description of their device and attach significance to the fact that they considered “the design patent possessed of elements that were not ‘obvious at the time the invention was made to a person having ordinary skill in the art.’ ” Sel-O-Rak Corp. v. Henry Hanger & Display Fix. Corp., 5 Cir. 1956, 232 F.2d 176, 178.

Finally, like the district court, we take cognizance “of the Plaintiff’s largely unrebutted and persuasive evidence that his machine was commercially successful in filling a previously unmet need among cabinetmakers and others who use laminated plastic in their manufacturing processes,” bearing in mind that this is only a secondary consideration. Waldon, Inc. v. Alexander Manufacturing Company, 5 Cir. 1970, 423 F.2d 91.

The crux of the district court’s conclusion of obviousness is two-fold, i. e. that the difference between a die and shear is insignificant, and that if a distinction is necessary to show patentable invention in relation to the prior art there would necessarily be lack of infringement since the defendants’ machine is constructed with touching discs which function as a shear. We disagree on both issues. The jury found that the difference between the prior art metal, leather, and paper shears, tin snips, and scissors, and White’s die deformation plastic cutting invention is significant, and the invention amounts to a non-obvious improvement. Our independent consideration of the record, as we have pointed out, supports that finding. There is substantial evidence with respect to the context of the prior art, the difference between the prior art and the White invention, and the level of the ordinary skill in the art, Graham v. John Deere Co., 1966, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545, to support the legal conclusion that White’s invention is a non-obvious improvement over the prior art. Furthermore, defendants contended throughout the trial that infringement was avoided because a die is different from a shear. They urged that, contrary to the die deformation in White’s machine, the discs touch each other in defendants’ machine which produces a shear. There is a conflict in the evidence whether the discs in defendants’ machine are constructed to act as a die or a shear. The jury resolved this factual issue by finding that defendants willfully and wantonly infringed White’s patent. The district court affirmed the finding of infringement and we think properly so.

We find that the patent is valid and was infringed. With regard to the conditional rulings of the district court as to treble damages and attorney’s fees, the jury’s finding that defendants willfully infringed and therefore that the compensatory damages should be trebled is advisory only. 35 U.S.C.A. § 284; 8 Walker on Patents, § 757 (Deller’s 2d Ed. 1973). We are unpersuaded that the district court abused its discretion in declining to award treble damages. We also agree that this is not an “exceptional case” justifying an award of attorney’s fees under 35 U.S.C.A. § 285. Williamson-Dickie Mfg. Co. v. Hortex, Inc., 5 Cir. 1974, 504 F.2d 983, 988; Garrett Corporation v. American Safety Flight Systems, Inc., 1974, 502 F.2d 9, 22.

Finally, we find no error in the denial of defendants’ alternative motion for a new trial. The district court’s comment, seized upon by the defendants, that the weight of evidence is to the effect that defendants’ machine functions as a shear, even if supported by the record (which it is not), is insufficient to, overturn the jury’s verdict by granting a new trial. The jury’s verdict must be against the great weight of the evidence before a new trial may be granted. Price v. Mosler, 5 Cir. 1973, 483 F.2d 275; Cities Service Oil Company v. Launey, 5 Cir. 1968, 403 F.2d 537.

We find without arguable merit the contentions made by the defendants that White’s commercial device should not have been admitted over objection; that the damages assessed by the jury were excessive; and that there is insufficient evidence to support the jury’s verdict that defendant Marshlack should be held individually liable for infringement. The White commercial machine was relevant to show how the patented device operated and to demonstrate the essential features of the claims of the patent. Evidence of infringement was offered by reading the claims of White’s patent on the accused device, not by comparing plaintiff’s machine to defendants’ machine.

Bearing in mind that “damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer” is the standard provided in 35 U.S.C.A. § 284 for ascertaining damages, the jury’s award of $94,500 compensatory damages is fully justified on the basis of the evidence adduced to show the detriment suffered by White. Bros Inc. v. W. E. Grace Mfg. Co., 5 Cir. 1963, 320 F.2d 594; Livesay Window Company v. Livesay Industries, 5 Cir. 1958, 251 F.2d 469.

Marshlack’s argument that he acted only as president of Mar-Bel and then only with advice of counsel has a hollow ring. He was the incorporator, president, majority stockholder, and moving force which resulted in the manufacture of the accused device. He participated in the development and promotion of the sale of his machine which was marketed soon after White’s machine was exhibited in 1968. Two years elapsed between notification of infringement and defense counsel’s reply challenging the validity of the patent. In our view, there was substantial evidence upon which the jury could find Marsh-lack liable for inducing Mar-Bel’s infringement. 35 U.S.C.A. § 271(b). Rex Chainbelt, Inc. v. General Kinematics Corporation, 7 Cir. 1966, 363 F.2d 336; Fromberg, Inc. v. Thornhill, 5 Cir., 1963, 315 F.2d 407; Cf. Gaddis, supra, 506 F.2d 880; General Electric Co. v. Sciaky Bros., Inc., 6 Cir. 1969, 415 F.2d 1068.

Affirmed in part, reversed in part and remanded for the entry of judgment for the plaintiff in the amount of the compensatory damages assessed by the jury in the amount of $94,500 plus taxable costs and injunctive relief prohibiting future infringement.

      . The patent was originally issued jointly to White and Meyer. It is now solely owned by White.

      . We substantially adopt the abbreviated description of the apparatus and process claims as set forth in White’s brief.