author: ROSS, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Donald R. NANCE, II, and Thomas N. Tileston, Appellants.
    No. 74-1047.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1974.
    Decided Aug. 20, 1974.
    Rehearing and Rehearing EP. Banc Denied Sept. 12, 1974.

      Theodore F. Schwartz, Clayton, Mo., for appellants.
    J. Patrick Glynn, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before LAY, HEANEY and ROSS, Circuit (fudges.
   ROSS, Circuit Judge.

This is a joint appeal by Donald R. Nance, II, and Thomas N. Tileston from a jury verdict finding them guilty of seven of the fifteen charged counts of mail fraud in violation of 18 U.S.C. § 1341. In each of the fifteen counts of the indictment Nance and Tileston were charged with use of the mail for the purpose of executing- a fraudulent scheme involving the sale of distributorships for merchandise marketed on wire rack displays. Guilty verdicts were returned on seven of those counts, specifically, 2, 4, 5, 6, 7, 12, and 13. Respecting each of those verdicts, Nance and Tileston argue that the evidence was insufficient to sustain a guilty verdict; that the court prejudicially refused to give the jury their “position” instruction; that the voir dire of the jury was prejudicially curtailed by the court; and that the jurors discussed the case among themselves before the final submission of the case, depriving defendants of a fair trial. We affirm the judgment of conviction as to counts 2, 12, and 13. We reverse as to counts 4, 5, 6, and 7.

Sufficiency of Evidence.

Nance and Tileston organized Nance and Associates, Ltd., and other corporations, to serve as. a vehicle in the marketing of rack distributorships. Under the marketing concept adopted for the corporation, the two defendants negotiated to obtain distribution rights from the manufacturers of retail products: Tootsie Toys, manufactured by Strom-beeker Corporation; and Bardahl, manufactured by Bardahl Petroleum Products. Those manufacturers agreed to ship their products to the dealers procured by Nance and Associates, Ltd., upon receipt of advance payment from Nance and Tileston. The products were packaged by the manufacturers for display and sale on wire racks.

The solicitation of prospective dealers was accomplished by publishing offers to sell distributorship franchises in various newspapers. After a prospective dealer answered an advertisement, a letter by one of the defendants was generally sent to him acknowledging his inquiry. Thereafter a sales representative from Nance and Associates, Ltd., contacted the prospective dealer and delivered a sales pitch wherein it was represented that high quality sales locations would be obtained and continuous operations assistance and a brief training course would be- provided to dealers. Interested prospective dealers were then required to deposit $800, as earnest money, presumably to secure the dealership. Procurement of the dealership was eventually confirmed by mail. Under the contract between the dealers and the defendants, the latter were to promptly ship the inventory and racks and arrange for the locations in retail outlets. The route was to be established by the defendants’ “marketing engineers” or location men. The dealer was to service the racks regularly and supply regular sales reports to Nance and Associates. All profit from the rack sales was to be retained by the dealer, with a commission payment retained by the retail outlet. The annual profit projections represented to the dealers by the defendants ranged from $5,000 to $10,000 and were set out in the advertisements and the sales manuals. The dealers were to reorder their inventory in the same fashion as the initial sale, by paying the defendants in advance, and the defendants were to have the merchandise shipped directly to the dealers.

At first the business functioned without serious problems. With the inception of a truck strike, however, in April, 1970, causing delays in shipment of inventories and racks, problems began to develop. By midsummer shipment schedules were considerably behind, partially, at least, because of the problems created by the strike. However, the evidence does not establish any deliberate failure to ship merchandise at that time. Beginning early in November, nevertheless, there is proof that cash payments were being received and not immediately applied to merchandise orders. By January, 1971, the Strombecker representative testified, Nance and Associates stopped sending checks altogether and the dealers no longer were receiving their original orders or reorders for which they had paid Nance and Associates in full.

The United States alleged in count 1 of the indictment, as false and fraudulent statements of material facts, that:

(a) Merchandise would be shipped to the dealer promptly after receipt of payment for the dealership.
(b) The dealers would receive substantial earnings promptly after commencement of the dealership.
(c) The dealers were guaranteed that their merchandise would be repurchased.
(d) The dealers would be assisted by-trained personnel in establishing a merchandising business.
(e) The dealers would receive continuous operations assistance.
(f) That dealers were selected only after screening.
(g) Marketing specialists would obtain good locations for the sale of rack merchandise.
(h) Earnest money was required to - reserve existing dealership route location.

Those allegations were incorporated by reference in each of the subsequent counts which charged violations of 18 U.S.C. § 1341 for each of the fifteen separate mailings to fifteen separate dealers. Nance and Tileston do not challenge the sufficiency of the indictment, but they do maintain that the proof was insufficient to sustain a conviction.

The essential elements of a violation of 18 U.S.C. § 1341 have been enunciated as “(1) a scheme conceived by appellant for the purpose of defrauding ... by means of false pretenses, representations or promises, and (2) use of the United States mails in furtherance of the scheme.” Gold v. United States, 350 F.2d 953, 956 (8th Cir. 1965). See also Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954). “Scheme” to defraud within the purview of this section involves some connotation of planning and pattern. Fabian v. United States, 358 F.2d 187, 193 (8th Cir.), cert. denied, 385 U.S. 821, 87 S.Ct. 46, 17 L.Ed.2d 58 (1966). Thus, intent to defraud is an essential element. It may be inferred by all the facts and circumstances surrounding a transaction. United States v. Porter, 441 F.2d 1204, 1210 (8th Cir. cert. denied, 404 U.S. 911, 92 S.Ct. 238, 30 L.Ed.2d 184 (1971)! The “use of the mails” requirement has similarly been judicially construed. To bring the scheme within the ambit of the mail fraud statute, the mails must be used for the purpose of executing the scheme, Kann v. United States, 323 U.S. 88, 93, 65 S.Ct. 148, 89 L.Ed. 88 (1944); must be employed before the scheme reaches fruition, United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974); yet, need not be contemplated as an essential element of the scheme, Pereira v. United States, supra, 347 U.S. at 8, 74 S.Ct. 358.

We have examined the entire record recognizing that the verdict must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In our opinion there was not sufficient evidence, as a matter of law, to sustain the government’s position that a scheme to defraud was devised and implemented from the outset of the business operations of Nance and Associates. To be sure there were representations made which were likely to be misinterpreted by the individuals who purchased dealerships. But the government failed to produce evidence of specific misrepresentations indicating guilty knowledge and fraudulent intent at the outset of the business or immediately thereafter on the part of Nance and Tileston.

Viewing all of the evidence in the light most favorable to the government, including the permissible inferences flowing therefrom, we conclude that the government did prove a scheme to defraud on the part of Tileston and Nance but that such scheme was not proven to have originated at least until early November of 1970. This timing becomes important because the letters which are the subjects of counts 4, 5, 6, and 7 were all mailed prior to the time the scheme was shown to have originated and those letters therefore cannot be said to have been for the purpose of executing the scheme or in furtherance of it. The convictions on those counts must be reversed. As to the remaining counts the evidence was sufficient. Count 2 specifies a letter mailed by Tileston to a Mr. Douglass on March 21, 1971. It related to an original order from Douglass which was never forwarded to Strom-becker and never received by Douglass despite payment in full to Nance and Associates in advance. Count 12 specifies a letter mailed by Tileston to a Mr. Pace on February 11, 1971, in regard to reordering Bardahl products. Pace testified that he paid $301.48 in advance for additional Bardahl products but never received them. Count 13 specifies a letter dated November 10, 1970, from Nance to a Mr. Schultz encouraging Schultz to become a Bardahl dealer. Schultz bought a Bardahl dealership, paying the balance of $2,752.88 on January 4, 1971, and received nothing in return. His request for a refund was ignored.

The fact that Nance and Tiles-ton did not personally authorize each mailing by the other is not significant. In Isaacs v. United States, 301 F.2d 706 (8th Cir.), cert. denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962), a mail fraud case, this Court said:

Each participant in a scheme to defraud is responsible for the use of the mails and wire used to execute and carry out the scheme.
“ ‘Where two or more persons jointly devise and execute a scheme to defraud by the use of the mails, they may thereby become in effect partners in the criminal purpose of so using the mails to defraud. If they do, the acts of each thereafter, during the existence and execution of the scheme, done in furtherance of that execution, may become the acts of all the partners, and each may be convicted of the mailing of a letter which one of his partners caused to be mailed in the execution of the scheme.’ ”

Id. at 726 (citations omitted).

For these reasons we conclude that the evidence is sufficient to sustain the verdict as to counts 2, 12, and 13, but not as to counts 4, 5, 6, and 7.

Position Instruction.

Fed.R.Crim.P. 30 provides that any party may file written requests that the court instruct the jury on the law set forth in the request. We have previously held, in this respect, a party is entitled to a specific instruction on his theory of the case if there is evidence to support it and a proper request for such an instruction is made. Apel v. United States, 247 F.2d 277, 282 (8th Cir. 1957).

Justification for resting the right to a position instruction upon the tender of a proper request has been summarized as:

While lawyers are advocates, there is a duty to present the court with requests fashioned in a form suitable for use by the court, if it so desires.

8 J. Moore, Moore’s Federal Practice j[ 30.03[ 1] at 30-5 (2d ed. 1973). See also United States v. Bessesen, 445 F.2d 463, 468 (7th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 448, 30 L.Ed.2d 368 (1971). Here there was submitted a long, verbose instruction essentially setting forth a defense of good faith, yet containing also a detailed description of the purported evidence and inferences drawn therefrom by defense counsel. In our view the request did not meet the standard of adequacy that a court may require.

An additional reason for upholding the action of the trial court on this point is that even when a requested instruction is properly tendered, the court is entitled to use its own language in framing instructions. Wright v. United States, 175 F.2d 384, 388 (8th Cir.), cert. denied, 338 U.S. 873, 70 S.Ct. 143, 94 L.Ed. 535 (1949); 2 C. Wright, Federal Practice and Procedure § 482 at 278 (1969). It is enough that the charge adequately and correctly covers the substance of the requested instructions. Wright v. United States, supra, 175 F.2d at 388. Thus when reviewing the adequacy of the instructions, an appellate court must look at the instrue-tions as a whole, and the court’s instructions considered as a whole, cannot be said to have ignored Nance and Tiles-ton’s request to state their position. The court made clear that a predicate to a verdict of guilty was that they find each defendant individually participated in a knowing and willful fraudulent scheme. The court’s definition of those terms makes clear that good faith would be an absolute defense to the crime. While a more detailed position instruction would have been preferable, we cannot say that the instructions as a whole did not outline the theory of the government’s case, the defendants’ opposition thereto, and the applicable law.

Voir Dire.

Nance and Tileston submitted to the court ten questions to be asked on voir dire of the jurors. While there was no record made of the voir dire, the only objection thereto was the court’s failure to ask the submitted questions. A court has wide discretion in conducting the voir dire, Fed.R.Crim. P. 24(a), and need not probe for bias or prejudice by any particular number of questions in any particular form simply because requested to do so. Ham v. South Carolina, 409 U.S. 524, 527, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Questions five and ten, if at all relevant, go to the ability of the jurors to render a fair and impartial verdict. No argument is proffered that the court did not otherwise exhaust inquiries relating to the juror’s ability to render such a verdict. The remainder of the questions concern statements of law which are more appropriately dealt with in the instructions to the jury. See United States v. Delay, 500 F.2d 1360 (8th Cir. 1974). Indeed, those matters were adequately covered in the final jury charge.

Juror Misconduct.

Finally, Nance and Tileston allege jury misconduct in their collective failure to observe the court’s admonition not to discuss the case during pendency of the trial. Placing reliance on Winebrenner v. United States, 147 F.2d 322 (8th Cir.), cert. denied, 325 U.S. 863, 65 S.Ct. 1197, 89 L.Ed. 983 (1945), they argue that they were deprived of a fair trial by the improper discussions among the jurors during the course of the trial.

In Winebrenner the court held that a trial court’s instruction permitting jurors to discuss a case under submission to an extent that they did not form a definite fixed idea pertaining to the case required reversal due to the juror’s premature consideration of evidence:

The jury should not discuss the case among themselves because, first, they have not heard all of the evidence; second, they have not heard the instructions of the court as to how this evidence is to be considered by them, and neither have they heard the arguments of counsel. The crime here charged was not a common one with which the layman is more or less familiar, such as larceny or other well known common law crime, but it was a statutory crime more or less technical and intricate in its nature, with which the ordinary layman was wholly unfamiliar. For this additional reason the jury could not give intelligent consideration to the evidence without the assistance of the court’s instructions.

Id. at 328. This case, of course, can be readily distinguished from Winebrenner since the court did not give an instruction which encouraged the jurors to discuss the case, but rather admonished them against discussing the case.

Fed.R.Crim.P. 51 provides that to preserve for review any acts or omissions of a trial court the party must “make known to the court the action he desires the court to take or his objection to the action of the court and the grounds therefor.” In this case it was not until after the verdict was rendered that the matter was first drawn to the attention of the court. At the hearing on a motion for new trial an associate of defense counsel testified that immediately after the case was submitted to the jury, the alternate juror, who was then excused, told defense counsel that the jury had been discussing the case throughout the trial. “A party may not stand idly by, watching the proceedings and allowing the Court to commit error of which he subsequently complains.” McNeely v. United States, 353 F.2d 913, 917, (8th Cir. 1965). See also United States v. Hester, 489 F.2d 48, 50 (8th Cir. 1973).

An additional reason for our decision on this point is that this evidence, coming from counsel rather than from the juror is, of course, hearsay. The defense did not call any of the jurors themselves and question them about participation in any discussions during the course of the trial. Furthermore the testimony of the defense associate counsel was to the effect that despite the alleged discussions, he was advised by the alternate juror that no juror had firmly made up his mind. A trial judge’s decision against granting a new trial for juror misconduct will be overturned only for an abuse of discretion. McDonnell v. United States, 457 F.2d 1049, 1052 (8th Cir.), cert. denied, 409 U.S. 860, 93 S.Ct. 148, 34 L.Ed.2d 107 (1972). Finding no proof of prejudice in the juror discussions, nor, indeed, any competent proof that such discussions took place, we cannot say that there has been any abuse of discretion by the district judge in denying the motion for new trial.

For the reasons hereinbefore set forth, the judgment of conviction is affirmed as to counts 2, 12, and 13, and is reversed and remanded as to counts 4, 5, 6, and 7.

      . (1) Do you understand that the defendants are not responsible for unauthorized misrepresentations made by salesmen working for defendants’ corporations, unless said defendants authorized, approved and acquiesced in said misrepresentations?
      (2) Do you understand that evidence of business failure does not constitute fraud?
      (3) Do you understand that the government must prove that the enterprise was set up in its inception to defraud persons?
      (4) Do you understand that the failure to deliver merchandise as per agreement entered into between defendants’ corporations and third parties does not constitute fraud ?
      (5) Will each juror require the same performance of the defendants’ corporations as they would of any parties allegedly defrauded?
      (6) Do you understand that the written contract between the parties represents the entire agreement of the parties ?
      (7) Do you understand that the misrepresentations, if any, must be of a present, existing fact and not a future representation?
      (8) Do any members of the panel feel the defendants are guilty because they have been indicted?
      (9) Do you understand that the indictment is not to be considered as evidence of guilt and raises no presumption of guilt?
      (10) Does any member of the panel know Mr. John Mitchell, Mr. Richard Kleindienst, or Mr. Elliot Richardson?


source: Caselaw Access Project

author: LEWIS R. MORGAN, Circuit Judge:

license: Public Domain

text:
    James MOORE et al., Plaintiffs-Appellees-Cross Appellants, v. LEFLORE COUNTY BOARD OF ELECTION COMMISSIONERS et al., Defendants, William L. Kellum, James D. Green and James M. Hooper, Jr., Individually and as Members of the Board of Supervisors of Leflore County, Mississippi, Defendants-Appellants-Cross Appellees, and Robert Lee Kyle and Ray Tribble, Minority Members of the Board of Supervisors of Leflore County, Mississippi, Defendants-Appellees.
    No. 73-3090.
    United States Court of Appeals, Fifth Circuit.
    Oct. 10, 1974.

      R. C. McBee, Robert M. Carpenter, Greenwood, Miss., for defendants-appellants-cross appellees.
    David M. Lipman, Jackson, Miss., Frank R. Parker, Johnnie E. Walls, Jr., Greenwood, Miss., for plaintiff s-appel-lees-eross appellants.
    James W. Burgoon, Jr., Greenwood, Miss., for Leflore County and Kyle and Ray Tribble.
    Beforé DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
   LEWIS R. MORGAN, Circuit Judge:

Plaintiffs, seven black residents of Leflore County, Mississippi, brought this action in 1971, challenging the decision of the county’s Board of Supervisors to hold at-large, rather than district, elections for Board positions. A three-judge court allowed the election to be held on an at-large basis but ordered the Board to develop a redistricting plan which would cure the county’s unconstitutional malapportionment. The three-judge court then dissolved and remanded the case to a single district judge. Moore v. Leflore County Board of Election Commissioners, 351 F.Supp. 848 (D.C.1971).

On December 20, 1972, the district judge filed a memorandum opinion holding the plan developed and submitted by the Board (hereafter “Kellum Plan”) unconstitutional because both its purpose and effect “. . . [were] to divide the black population and dilute the black vote in Leflore County. . . .” Moore v. Leflore County Board of Election Commissioners, 361 F.Supp. 603, 607 (D.C.1972). The court also appointed a special master, Hoyt T. Holland, Jr., to formulate an acceptable redistricting plan (hereafter “Holland Plan”). Finally, on June 4, 1973, the court held that the Holland Plan satisfied constitutional requirements and ordered it implemented immediately in district elections. Moore v. Leflore County Board of Election Commissioners, 361 F.Supp. 609 (D.C.1973). A majority of the Board appealed, and plaintiffs cross appealed. A two member minority of the Board are appellees here. We affirm the order of the district court.

As is the case in many areas of the South, the population of Leflore County is concentrated in and around a single urban area, here the city of Greenwood; the rest of the county is largely undeveloped, sparsely populated, farming country. This uneven population distribution is a complicating factor in any reapportionment equation, as we shall see. Further complications arise from the racial composition of the population. Of the county’s 1970 population (41,923), 58% (24,373) is black and 42% (17,550) is white. Greenwood’s population, however, is divided almost equally between black (11,130) and white (11,118). For reapportionment purposes, the most significant statistic is that 10,763 of Greenwood’s blacks live in southeast Greenwood. Thus, close to half of the county’s blacks, one-fourth of its entire population, is concentrated in a five square mile quadrant of the county seat ; the heart of this controversy is located within those five square miles.

The Kellum Plan, which appellant supervisors contend should have been accepted by the court, divided the county into five districts or “beats” of practically equal population. No party has contended that this plan does not satisfy the arithmetical aspect of the one man-one vote standard established by Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); the .33% variance between largest and smallest districts is well within the judicially established guidelines for meeting that test. Rather, the court rejected the plan because it diluted black voting strength and because it failed to take into consideration legitimate planning objectives, such as equality of road mileage and land area. In this determination, we think the court was clearly correct.

A reapportionment plan is unconstitutional if it is a racially motivated gerrymander or if it is a plan drawn along racial lines which, “. . . designedly or otherwise . . . would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965). If he cannot prove a racial gerrymander, a plaintiff must show

. . . that the political processes leading to nomination and election [would not be] equally open to participation by the group in question — that its members [would have] less opportunity than [would] other residents in the district to participate in the political process and to elect legislators of their choice. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314, 324 (1973) (citation omitted).

As a three-judge court recently said in connection with a New Orleans, Louisiana, redistricting proposal:

The measure of the plan’s validity is equality of opportunity, and the crucial inquiry is whether the plan leaves black citizens at liberty to participate in the electoral process on the same plane with white citizens. Beer v. United States, 374 F.Supp. 363, 384 (D.C.1974) (footnote omitted).

Under the Kellum Plan, the majority of each district’s residents are black. The extent of each majority, however, is diluted in all but one of the districts when compared to pre-redistricting figures. Significantly, it also appears that in terms of registered voters, blacks would have exceedingly slim majorities in some of these districts and minorities in others.

The mere existence of a black population majority does not preclude a finding of dilution. Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc). As we said in Zimmer, p. 1305, with reference to a black majority, in East Carroll Parish, Louisiana, if a group of voters can show

. a lack of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interests, a tenuous, state policy underlying the preference for multi-member or at-large districting, or that the existence of past discrimination in general precludes the effective participation in the election system, a strong case [supporting a finding of dilution] is made.

We agree with the district judge that such a showing was made here. Prior to the passage of the 1965 Voting Rights Act, most of Leflore County’s blacks were prevented from registering to vote by a variety of discriminatory, unconstitutional, state law devices. See United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965). As the district court found, against this “. . . background of fear and civil rights repression, blacks have minimally engaged in political activity. . . .” Moore v. Leflore County Board of Election Commissioners, 361 F.Supp. 603, 605 (D.C.1972). No black has ever been elected to public office in the county; a black’s near victory over Supervisor Kellum in 1966 immediately preceded, the Board’s decision to switch to at-large elections. No black has since run for the office. The point is that against this background, the Kellum Plan diluted the black vote; by retaining the barest of black, population majorities, it enhanced the possibility of continued black political impotence.

The district court found several other infirmities in the plan. In drawing district lines, Kellum completely ignored land area and road mileage as planning criteria, and drew the boundaries in such a way as to avoid pitting incumbent supervisors against each other in future elections. Although none of these errors may be fatal in themselves, the district court was correct in considering them additional factors requiring rejection of the plan. Equalization of land area and road mileage is extremely important here; although each district is allotted the same amount of public funds for road and bridge maintenance, under the Kellum Plan there are gross discrepancies among the facilities to be maintained by those funds. District Three, for example, would encompass only 3.9% of the county and would contain only 4.1% of its roads, while District One would cover 33.2% of the area and would contain 29.6% of the roads. As we said in Howard v. Adams County Board of Supervisors, 453 F.2d 455, 456 (5th Cir. 1972), the equalization of road mileage and land area in such a situation are “legitimate planning objectives.”

We turn now to the Holland Plan, which both appellant supervisors and plaintiffs contend is unconstitutional, although for stunningly different reasons: the supervisors contend it discriminates against whites while plaintiffs make the identical argument as to blacks. We hold the plan constitutional because it neither discriminates against either race nor dilutes its voting strength.

The racial distribution of the entire population under the plan is:

DIST. NO. WHITE % BLACK % TOTAL
1 6,331 75 2,139 25 8,470
2 3,306 39 5,186 61 8,492
3 2,742 33 5,642 67 8,384
4 3,043 36 5,372 64 8,415
5 2,128 25 6,222 75 8,350
17,550 42 24,561 58 42,111

Thus, in the four districts with black majorities, the extent of the majorities is far greater than under the Kellum Plan. Black voters are therefore far more likely to be able to exercise their franchise in a full and meaningful way.

The racial distribution of registered voters under the plan is:

DIST. NO. WHITE % BLACK % TOTAL
1 4,170 88 569 12 4,739
2 1,779 49 1,833 51 3,612
3 1,551 42 2,156 58 3,707
4 1,713 50 1,736 50 3,449
5 1,172 34 2,276 66 3,448
10,385 55 8,570 45 18,955

Plaintiffs argue that such a distribution, leaving blacks with a majority in only three districts, constitutes a dilution of their voting strength. Such a discrepancy between the number of black citizens and black registered voters is only to be expected, however, given the history of discrimination and repression outlined above. The point is, no realignment of districts could eliminate this discrepancy; blacks have simply not registered in numbers commensurate with their population strength. Hopefully, blacks will now and in the future register in numbers approaching their full potential. If they do, the Holland Plan allows them full access to the reigns of government. The racial distribution of the voting age population under the plan is:

DIST. NO. WHITE %_ BLACK %_ TOTAL
1 4,278 81 994 19 5,272
2 2,191 45 2,667 55 4,858
3 1,930 38 3,099 62 5,029
4 2,019 41 2,927 59 4,946
5 1,399 30 3,298 70 4,681
11,817 48 12,969 52 24.786

Thus, blacks have substantial voting age majorities in four of the five districts. Although this fact alone does not negate the possibility of dilution, we are convinced that, under the totality of circumstances here dilution will not result.

Shifting the focus of their attack from statistics to geography, plaintiffs contend that dilution results from the drawing of the district lines in such a way as to preserve a “safe” white district in north Greenwood while segmenting the black population of south Greenwood into four separate districts. We reject this contention for two reasons. First, any district of approximately 8,500 persons encompassing north Greenwood would have a white majority since the area’s residents are almost exclusively white. It is eminently logical to structure north Greenwood as a separate district since it is separated from the rest of the town on the south and the east by the Yazoo River. Acknowledging this, plaintiffs nevertheless contend it was unconstitutional for the master to draw each of the districts with long corridors reaching into and segmenting Greenwood. As to this argument, we reaffirm what we said in Howard v. Adams County Board of Supervisors, 453 F.2d 455, 456 (5th Cir. 1972). That case involved a redistricting plan for a county strikingly similar, geographically and demographically, to Lef-lore County: Natchez, with 64% of the county’s population, is, like Greenwood, located near a county line. The racial distribution of the county is 48% black, 52% white. In drawing his plan the special master was told to equate the population, road mileage, and land area of the districts as nearly as possible. “With its land area largely rural, and its population concentrated in one urban area” we said,

[t]he realization of these legitimate planning objectives dictated a plan which would consolidate urban and rural areas into each district. . therefore, each district converged in spokelike fashion from a broad rural base into the city of Natchez.

A more accurate description of the Lef-lore County situation can hardly be imagined.

The Holland Plan withstands appellant supervisors’ attack as well. As noted above, the concentration of whites in District One is a natural product of the geography and the residential patterns of Greenwood. It is not the result of a racial gerrymander and must stand since no claim or showing of white dilution has been made.

Finally, the district court was clearly correct in ordering district elections rather than the at-large election for which appellant supervisors contend. Single-member districts are, of course, preferable to large, multi-member districts. Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971). A district court may override this preference only if it “. . . determines that significant interests would be advanced by the use of multi-member districts and the use of single-member districts would jeopardize constitutional requirements . . . [or] multi-mem-ber districts afford minorities a greater opportunity for participation in the political processes than do single-member districts.” Zimmer, supra, 485 F.2d p. 1308. The record amply supports the district court’s conclusion that an at-large scheme, far from meeting this test, would rather diffuse and dilute black voting strength and work to deny Leflore County blacks equal access to the political process. As noted above, far fewer blacks are of voting age or are registered to vote than whites. When this fact is added to the “background of fear and civil rights [suppression in the county]” the majority vote requirement for democratic primary nomination, the anti-single shot voting provision of Mississippi law, and the concentration of black residents in south Greenwood, there is ample support for the conclusion that at-large districting far from being required here, would, in fact, be constitutionally infirm. Cf. White v. Regester, supra, 412 U.S. at 766, 93 S.Ct. at 2339, 37 L.Ed.2d at 324.

For the above reasons the judgment of the district court is

Affirmed.

      . The malapportionment stemmed principally from the inclusion of the entire city of Greenwood in District Three. The districts were set up as follows :
      DIST. NO. POPULATION
      1 2,536
      2 2,999
      3 27,651
      4 5,515
      5 3,410

      . Using a norm of 8,422 the Kellum Plan achieves the following distribution :
      DIST. NO. POPULATION %

      1 8,470 20.11
      2 8,492 20.17
      3 8,384 19.91
      4 8,415 19.98
      5 8,350 19.83

      . See, e. g., Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971).

      . The black majority was decreased in:
      District 1 from 78% to 58% ;
      District 2 from 74% to 60;
      District 4 from 76% to 55% ;
      District 5 from 69% to 57;
      The black population increased in District 3 from 49% to 55%.

      . Under the Holland Plan, blacks constitute a slim majority of the registered voters in three districts, while one district is split almost equally between blacks and whites. Since the Kellum Plan yields uniformly smaller black population majorities than the Holland plan, it is logical to expect the corresponding registered voter figures to be smaller also.

      . Moore v. Leflore County Board of Election Commissioners, 361 F.Supp. 603, 605 (D.C. 1972).


author: CHOY, Circuit Judge:

text:
    Paul M. GARRETT, Trustee in Bankruptcy for Metropolitan Shippers’ Clearings Corp. of Washington, Appellant, v. TIME-D.C., INC., Appellee.
    No. 72-3042.
    United States Court of Appeals, Ninth Circuit.
    Aug. 14, 1974.

      Nicholas F. Corning, Bellevue, Wash., for appellant.
    Boyd Hartman (argued), of Hartman & McGuire, Seattle, Wash., for appellee.
    Before KILKENNY, TRASK and CHOY, Circuit Judges.
   OPINION

CHOY, Circuit Judge:

This appeal presents the issue whether a claim that a motor carrier must pay pre-judgment interest on shipping charges that exceed Interstate Commerce Act limits is one “arising under an Act of Congress regulating commerce” so as to be within the jurisdiction of a federal district court under 28 U.S.C. § 1337. The district court held it was not. We reverse and remand.

Paul M. Garrett, the trustee for the bankrupt Metropolitan Shippers’ Clearings Corporation (MSCC), seeks a declaratory judgment that interest must be paid on shipping overcharges. The overcharges occurred when TIME-DC, a motor carrier, charged its customers, whether inadvertently or not, more than was specified in tariffs filed with the Interstate Commerce Commission (I.C. C.).

MSCC’s business consisted of purchasing shipper’s rights to collect overcharges, performing audits to determine if the motor carriers had charged more than permitted in the applicable tariffs, and then collecting the overcharges.

Normally, collecting overpayments has occasioned no difficulty. When it has been the subject of repayment demands, TIME-DC, like other carriers obliged to remit overcharges under § 317(b) of the Interstate Commerce Act, 49 U.S.C. § 317(b), has refunded such charges routinely. However, it, as well as other carriers, has refused to pay any interest to compensate the shipper for retention of the monies during the period between the overpayments and the remittance of the excessive charges.

Garrett contends that the Interstate Commerce Act requires payment of interest because uncompensated retention of an overpayment is part and parcel of an overcharge. In support of his contention, he points to certain provisions in Part II of the Act, 49 U.S.C. §§ 301-327, governing interstate motor carriers. Under that Part a carrier is prohibited from collecting “a greater or less or different compensation for transportation” than set forth in its tariffs. 49 U.S.C. § 317(b) (emphasis added). A shipper may pursue a judicial action for “overcharges” (or a carrier an action for “undercharges” if less than the tariff has been collected). See 49 U.S.C. § 304a. “Overcharges” are defined as charges “in excess of those [provided] under the tariffs. ...” 49 U.S.C. § 304a(6). Garrett argues that the carrier’s “overcharge” or “compensation” is increased by the interest benefit inhering in retention' of the overpayment until it is refunded. Thus, he concludes, the statute affords him a right to the preremittance interest.

The issue before us relates only to the presence of jurisdiction under § 1337. Since $10,000 is admittedly not in controversy, § 1331’s parallel jurisdictional grant for cases “arising under the Constitution, treaties, or laws of the United States” is unavailable. Nonetheless, § 1331 does serve as a starting point since the “arising under” language in § 1337 is interpreted in essentially the same way as the “arising under” phrase in § 1331. The test of what arises under an Act of Congress regulating commerce is therefore a familiar two-part one. See generally T. B. Harms Co. v. Eliscu, 339 F.2d 823, 826-827 (2d Cir. 1964), cert. denied 381 U.S. 915, 85 S.Ct. 1534, 14 L.Ed.2d 435 (1965); ALI, Division of Jurisdiction Between State and Federal Courts 177-79 (1969). It must appear either that the complaint seeks a remedy granted or properly inferable from an act regulative of commerce, see, e. g., American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 36 S.Ct. 585, 60 L.Ed. 987 (1916), or that the suit hinges on the interpretation of such an act of Congress. See, e. g., Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 199, 41 S.Ct. 243, 65 L.Ed. 577 (1921).

The cause of action seems to be squarely within the terms of this test. Garrett is claiming that certain provisions of the Interstate Commerce Act establish a duty on the part of motor carriers to pay preremittance interest; the question is whether such a duty can be inferred from the Act. Hence, the claim is one that -vitally depends on the construction of a federal statute for its resolution.

Under the rule of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), we need not definitely decide MSCC’s claim. Our task under the rule is only to determine that the statutory issue is neither “frivolous or insubstantial,” nor put forth solely to gain federal jurisdiction. Id. at 682-683.

The claim here is, we think, substantial. While there has never been a suit solely for preremittance interest under the Interstate Commerce Act — probably because of the usually small amounts involved — courts have uniformly held that there is a right to such interest in cases where both the overcharge (or undercharge) and interest were sought. These courts typically have not discussed the origins of the interest awards, but it is at least arguable that the awards were grounded on the policy of the Act limiting a carrier’s benefits to precisely those specified in the tariffs. The one court to discuss the issue, the Third Circuit in Southern Pacific Co. v. Miller Abattoir Co., 454 F.2d 357 (1972), premised its holding awarding interest on such a reading of the Act. Thát was a suit involving a railroad’s overcharge in violation of § 6(7) of the Act, a section corresponding to those in Part II limiting the charges carriers may levy. The court found that the “policy expressed” by the Act “require[d] that prejudgment interest be awarded”. Id. at 362.

[T]he only lawful charge for shipping the lambs is the full tariff charge. To allow the Railroad to recover without awarding prejudgment interest would be to diminish the tariff charge by an amount representing the value of the use of the money owed for the period prior to the judgment. Such a diminution would be contrary to § 6(7).

Id. The words “compensation” and “overcharge” in Part II are certainly susceptible of the same interpretation. Garrett’s statutory claim here is not insubstantial.

TIME-DC, however, argues that the right to interest claimed by the plaintiff is not one arising under the Act, but one derived from the common law. Section 1337 uses the term “arising under an Act of Congress”; in contrast, § 1331 grants jurisdiction for causes arising under the “laws” of the United States. The term “laws,” it has been held, encompasses federal common law. Illinois v. Milwaukee, 406 U.S. 91, 98-101, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). But it is generally thought that “Act of Congress” in § 1337 limits the reach of the statute to cases arising under statutory law. See Ivy Broadcasting Co. v. American Telephone & Telegraph Co., 391 F.2d 486, 489 (2d Cir. 1968); Frenkel v. Western Union Telegraph Co., 327 F. Supp. 954, 958 (D.Md.1971). If it is a federal common law right that appellant is asserting, then, there can be no § 1337 jurisdiction.

It is true that the Interstate Commerce Act does not in so many words declare that “pre-remittance interest shall be awarded.” Such a principle is, however, at least inferable from the Act, and that is all that is necessary. In Fielding v. Allen, 181 F.2d 163 (2d Cir.), cert. denied 340 U.S. 817, 71 S.Ct. 46, 95 L.Ed. 600 (1950), the plaintiff’s claim was that the Interstate Commerce Act inferentially created a private right of action to challenge I.C.C.-approved railroad mergers. The court held this claim arose under the statute. Judge Swan, writing for the court, rejected an argument similar to that put forth by TIME-DC here: “Nor need the federal statute upon which the claim is based expressly provide that the plaintiffs shall have a remedy by way of suit.” 181 F.2d at 166. It is enough that the statute provide the source of the right or duty claimed in the suit. See Murphy v. Colonial Federal Savings & Loan Association, 388 F.2d 609, 611, 615 (2d Cir. 1967). To require more would establish an impossible and artificial line between statute and common law which nowhere in fact exists.

We hold that the claim here arises under the Interstate Commerce Act.

Reversed and remanded.

      . Section 1337 provides:
      The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.

      . In an affidavit an MSCC employee averred that there were $1,200 in overcharge claims pending against TIME-DC.

      . Russo v. Kirby, 453 F.2d 548, 551 n. 7 (2d Cir. 1971); McFaddin Express Co. v. Adley Corp., 346 F.2d 424, 426 (2d Cir. 1965), cert. denied, 382 U.S. 1026, 86 S.Ct. 643, 15 L.Ed.2d 539 (1966); Eickhof Construction Co. v. Great Northern Ry., 291 F.Supp. 44, 46 (D.Minn.1968); 1 J. Moore, Federal Practice § 60 [8.-3] at 626-27 (2d ed. 1959); see Carlson v. Coca-Cola Co., 483 F.2d 279, 280 (9th Cir. 1973).

      . See Garfinkle v. Wells Fargo Bank, 483 F.2d 1074, 1076-1077 (9th Cir. 1973); Carlson v. Coca-Cola Co., 483 F.2d 279, 280 (9th Cir. 1973).

      . Cases under Part II of the Act so holding are: Fawley Motor Lines, Inc. v. Cavalier Poultry Corp., 235 F.2d 416, 419 (4th Cir. 1956); T. & M. Transportation Co. v. Shat-tuck Chemical Co., 158 F.2d 909, 910-911 (10th Cir. 1947); Montgomery Ward & Co. v. Roy Stone Transfer Co., 220 F.Supp. 137, 140 (W.D.Va.1963), vacated on other grounds, 329 F.2d 172 (4th Cir. 1964). The I.C.C. has never decided this issue since it has no authority to award reparations in motor carrier cases. See Smith v. Moland Bros. Trucking Co., 46 M.C.C. 762 (1947).
      It does have such power when rail charges are at issue under Part I of the Act, and both the I.C.C. and courts have long upheld interest awards in such cases. See, e. g., Louisville & Nashville R.R. v. Sloss-Sheffield Steel & Iron Co., 269 U.S. 217, 239-240, 46 S.Ct. 73, 70 L.Ed. 242 (1925); Louisiana & Arkansas Ry. v. Export Drum Co., 359 F.2d 311, 317 (5th Cir. 1966); Rutter & Co. v. Chicago & N.W. Ry., 36 I.C.C. 272, 280 (1915).

      . In Murphy the court held that a suit in which plaintiffs sought a right to inspect federal savings and loan membership lists arose under the Federal Home Loan Act because the right depended on “fleshing out” vague regulations specifying the right of members to vote by proxy.

      . According jurisdiction in this class of cases will not, it should be noted, impose any practical burdens on federal' courts, a factor we are admonished to consider by Gully v. First National Bank, 299 U.S. 109, 117-118, 57 S.Ct. 96, 81 L.Ed. 70 (1936). Suits claiming solely pre-remittance interest on freight overcharges will undoubtedly be few. Moreover, the issue is purely a federal one, so that a federal forum is desirable.


author: GURFEIN, District Judge:

text:
    John F. LOMBARD, Plaintiff-Appellant, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, and John A. Murphy, Defendants-Appellees.
    No. 208, Docket 73-2057.
    United States Court of Appeals, Second Circuit.
    Argued Dec 5, 1973.
    Decided July 22, 1974.
    Morris Weissberg, New York City, for appellant.
    Leonard Koerner, New York City (Norman Redlich, Corp. Counsel, New York City, Stanley Buchsbaum, New York City, on the brief), for appellees.
    Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation. U.S.C. § 1343(3), (4). There was no opinion below.

   GURFEIN, District Judge:

Plaintiff-appellant John F. Lombard appeals from an order of the United States District Court for the Eastern District of New York, Anthony J. Tra-via, J., dismissing his complaint against the New York City Board of Education and one John A. Murphy for failure to state a claim upon which relief can be granted and denying as moot his application that pending final disposition of his claims he be granted a preliminary injunction reinstating him as a teacher in the public schools. For permanent relief Lombard seeks from the Board of Education reinstatement as a teacher and an award of all back pay due him. In addition, Lombard seeks money damages from Murphy, the principal of the school where appellant taught, alleging that the principal, by filing false reports with the Board of Education and also by requesting and coercing parents and students to write false reports, had initiated the administrative process which led to and resulted in the discontinuance of Lombard’s probationary appointment. This suit is brought under 42 U.S.C. § 1983 with jurisdiction predicated on 28

Appellant Lombard raises several constitutional claims on this appeal. He contends that he was denied his first amendment rights, and his fourteenth amendment rights to due process under the United States Constitution when his employment as a probationary teacher was terminated by the New York City Board of Education without his first having received written reasons supporting that termination and an evidentiary hearing thereon. He also argues that he was denied his fourteenth amendment rights when the Board of Education disqualified him from teaching with his substitute license without first providing him with written reasons for the disqualification and without granting him an evidentiary hearing.

Appellees Board of Education and Murphy here, as they did in the court below, maintain that res judicata bars all of Lombard’s constitutional claims on the ground that he had a full opportunity to raise all the issues presented to the federal court in state proceedings he had brought to challenge the termination of the probationary appointment. The Board also argues that the appellant was not denied due process as he did not make out a claim that he had been deprived of any fourteenth amendment rights.

The facts follow:

On November 1, 1966, the plaintiff-appellant was assigned as a regular substitute teacher in the New York City public school system to teach at Public School 151 in Queens, New York. He taught as a regular substitute teacher for one year and received a satisfactory rating from his principal, John A. Murphy. On August 11, 1967, the appellant was granted a regular license for a probationary period of three years, effective September 6, 1967. The appellant received credit for one-half year of substitute teaching and therefore his probationary period expired and his permanent appointment became due on March 8, 1970. For his first year of teaching as a regularly licensed teacher in Public School 151, Lombard received a satisfactory rating from his principal.

During his second year as a regular teacher, the 1968-1969 academic year, the principal at Public School 151, John A. Murphy, submitted a report to the Board of Education on March 28, 1969, recommending that the appellant’s probationary appointment be discontinued and that he be directed to submit to a medical examination to determine his fitness to teach. In this report and in a subsequent letter of May 5, 1969, the principal enumerated the alleged factual bases for his recommendation that Lombard’s probationary appointment be discontinued and that Lombard be required • to undergo a medical examination.

Murphy indicated that the teacher had committed acts and had made statements showing prejudice against black pupils, that Lombard had engaged in bizarre acts such as kicking students, that he had used obscene language, that he had violated several rules of the school, including failure to punch the time clock properly, and that he had frequently complained that the heat in his classroom was insufficient.

Lombard’s complaint, on the other hand, challenges the principal’s motivation for recommending the medical examination and the discontinuance of the appellant’s probationary appointment and further denies the substance of the charges made by Murphy. Lombard, describing the aforementioned charges made against him by Murphy as “false,” alleges that those charges were made “[i]n bad faith and in retaliation and revenge for” certain acts performed by Lombard.

These acts which Lombard claims provoked Murphy to pursue a vendetta against him include complaints by Lombard to Murphy about insufficient heat in the classroom, Lombard’s filing of grievances in response to the principal’s refusal to allow appellant to examine his own personnel file and the principal’s wrongful withholding of appellant’s check from him for nine days, Murphy’s refusal of the appellant’s request that the Chapter Chairman of the United Federation of Teachers in his school be allowed to accompany the appellant to a conference with an assistant principal, and the appellant’s submission of written reports which described incidents of disorderly conduct and obscene language used by black pupils.

In May of 1969, the appellant was examined by two staff physicians of the Board of Education and in June of 1969 by a psychologist. The appellant was found to be suffering from an “emotional upset that is of recent origin and is of a paranoid nature.” Pursuant to these findings and without a hearing, the appellant was given an involuntary leave of absence until January 31, 1970.

In September of 1969, the appellant commenced a proceeding under Article 78 of the New York Civil Practice Law and Rules in the New York State Supreme Court, Kings County, challenging the authority of the Superintendent of Schools to place him on an involuntary leave of absence, and seeking to be reinstated as a teacher. The petition was dismissed on January 16, 1970, by Justice Feiden.

In January and March of 1970, the appellant was called for further examination by physicians and psychologists to determine his fitness to return to duty. The panel recommended that the leave of absence be extended until June 30, 1970.

On the other hand, while on medical leave of absence the appellant applied to the United States Department of Health, Education and Welfare for a disability allowance. HEW gave the appellant a special examination and received a report from a member of the Board of Education’s medical panel. On April 7, 1970, HEW, stating that Lombard was not unable to work at his normal occupation, denied his claim for a disability allowance.

On April 20, 1970, pursuant to section 105a of the By-Laws of the Board of Education, a hearing was held before a Committee of the Superintendent of Schools concerning the appellant’s probationary status. At this hearing appellant presented written statements in his support, and several witnesses gave un-sworn oral testimony on his behalf. There was no testimony relative to appellant’s unfitness to teach, and the principal did not testify. The Committee had before it the reports by the principal and the recommendations of the physicians and psychologists who had examined the appellant. The Committee recommended that the probationary appointment be discontinued on the following five grounds:

(1) Illogical and disoriented conversation, causing request for examination by the Medical Department, which found him unfit for duty.
(2) Weakness in discipline and class control.
(3) Incompetent and ineffective instructional performance.
(4) Inattention to routine matters such as keeping records of pupil attendance, admission or discharges. Poor relations with Supervisors and Teachers.
(5) Violation of the By-Laws on Corporal Punishment.

After Superintendent of Schools Irving Anker had approved the report, the applicable school board, Local School Board No. 23, adopted it on June 11, 1970, to become effective September 10, 1970.

Following his dismissal as a probationary teacher, Lombard sought work with his substitute teacher’s license in a number of New York public schools. However, inasmuch as the Board of Education in its Special Circulars # 66 for 1971-1972 and # 89 for 1972-1973 directed school principals not to hire the appellant as a substitute teacher, he was unable to obtain continuous employment, and, indeed, several schools were forced to dismiss Lombard because of the Board’s circular.

In June of 1971, Lombard commenced a second Article 78 proceeding in Supreme Court, Kings County, to review the termination of his probationary appointment and to seek reinstatement as a teacher. Justice Cowin denied the petition on June 27, 1972. The Appellate Division affirmed without opinion, 40 A.D.2d 1081, 337 N.Y.S.2d 1003 (2d Dep’t 1972), and on February 15, 1973, the Court of Appeals denied leave to appeal, 31 N.Y.2d 648, 341 N.Y.S.2d 1027, 294 N.E.2d 660.

In March of 1973, Lombard commenced this action in the Eastern District of New York.

The appellees contend that this suit is barred by the doctrine of res judicata because the appellant had a full opportunity in his Article 78 proceedings in the state courts to raise all of the issues relating to termination of his services as a probationary teacher. In the first proceeding, in Supreme Court, Kings County, Lombard contended that the Board of Education had failed to comply with a provision of its own by-laws and that its direction to him that he apply for leave of absence without pay was invalid for he still had unexhausted sick leave with pay he was entitled to exhaust. This petition was denied, and the act of the Board was upheld.

In the second, and more important, proceeding, commenced in June of 1971 in Supreme Court, Kings County, the appellant challenged the validity of the order terminating his services as a probationary teacher. He alleged that the Board of Education had acted illegally in terminating his probationary appointment three months after his probationary term of service had expired. Lombard further alleged that the Board of Education’s action in terminating his probationary appointment on the ground that he was an unsatisfactory teacher “was illegal, arbitrary and capricious and without foundation and must have been primarily based on the fact- that Petitioner’s former principal, Mr. John A. Murphy, personally disliked petitioner and was determined to bar him from teaching in the Elementary Schools of the City of New York.” It was thus Lombard’s position in this state court proceeding, as it is here, that the charges made by Murphy and the unsatisfactory rating issued by him caused the termination of Lombard’s probationary appointment and that those charges and that rating were unjustified and without foundation.

In denying the petition, Justice Cowin stated:

The primary thrust of petitioner’s argument is that he acquired tenure by acquiescence. He (petitioner) argues that since his probationary appointment ended in March of 1970 and respondents did not vote to terminate his services until June 1970, he acquired tenure by operation of law.

Disagreeing with this argument, Justice Cowin found that the appellant had not completed his required probationary service at the time his appointment was terminated, and then discussed Lombard’s contention that he was entitled to back pay. Finally, at the very end of his opinion, Justice Cowin declared:

The court is also of the opinion that the hearing accorded petitioner was proper and that the determination made to terminate his services was not arbitrary or capricious.

Lombard did not specifically raise the fourteenth amendment constitutional issue in either of these two Article 78 proceedings, but the appellees argue that, nevertheless, the appellant should have raised them in those state proceedings, and that his failure to do so precludes him from raising them in this section 1983 action.

I

Whether it is called res judicata or claim preclusion, we think for several reasons that policy considerations should not permit the extension of the res judicata doctrine in this case to issues of procedural due process which are said to raise claims under 42 U.S.C. § 1983. s

First, when the Civil Rights Act was authoritatively interpreted in Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), the Supreme Court said:

The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.

To apply res judicata to a remedy which “need not be first sought and refused” in the state court, and which actually was not sought would be to overrule the essence of Monroe v. Pape and Lane v. Wilson, 307 U.S. 268, 274, 59 S.Ct. 872, 83 L.Ed. 1281 (1939).

Second, if a federal action under section 1983 is considered to be the same cause of action as the state action for purposes of claim preclusion, then a plaintiff desiring to raise a state statutory construction issue or even a state constitutional issue would, and probably should, not be able to raise these points in the federal district court in the first instance. See Reid v. Board of Educ., 453 F.2d 238 (2d Cir. 1971); Coleman v. Ginsberg, 428 F.2d 767 (2d Cir. 1970). Here, even if we would like to put all the issues in the same court, we are better off not to compel the plaintiff to seek constitutional redress in the state court or statutory construction in the federal court. See McNeese v. Board of Educ., 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). That.is what we think choice of forum means in Civil Rights Act cases.

Third, while the per curiam opinion in Frazier v. East Baton Rouge School Board, 363 F.2d 861 (5th Cir. 1966), contains language that appears to support the application of res judicata in a section 1983 action to a failure to raise the constitutional claim in the state courts, it raises various policy problems if applied to the ease at bar. The court in Frazier said that “the judgment is conclusive as to all matters which were litigated or might have been litigated in the first action.” 363 F.2d at 862. The court added that “the only appropriate federal forum for review of his alleged federal claim of discrimination was the United States Supreme Court.” Id. But if the appellant inadvertently or through his lawyer’s mistake failed to raise the constitutional claim, it is small comfort to tell him that he should look to the Supreme Court for redress. It seems clear enough that if the appellant actually failed to assert his constitutional claim in the state court, he could not get a writ of certiorari from the nonconstitutional judgment of the state court. 28 U.S.C. § 1257(3); Sup.Ct.Rule 19; Cardinale v. Louisiana, 394 U.S. 437, 89 S.Ct. 1161, 22 L.Ed.2d 398 (1969); Ellis v. Dixon, 349 U.S. 458, 75 S.Ct. 850, 99 L.Ed. 1231 (1955); American Surety Co. v. Baldwin, 287 U.S. 156, 162, 53 S.Ct. 98, 100, 77 L.Ed. 231 (1932) (“failure to make seasonably the federal claim”). We prefer to treat the statement in Frazier as obiter so far as a procedural due process claim is concerned, since in Frazier there had been a “full hearing” in the state court and procedural due process was not involved.

So, too, other opinions which in language support an extension of the res judicata rule did not involve a claim of deprivation of procedural due process, see Johnson v. Department of Water and Power, 450 F.2d 294 (9th Cir. 1971), or the appellant had failed to object to evidence. Coogan v. Cincinnati Bar Ass’n, 431 F.2d 1209 (6th Cir. 1970). Howe v. Brouse, 422 F.2d 347 (8th Cir. 1970), was a case where the defendant judge had already been held by the state court to have judicial immunity.

We think that the problem, strictly speaking, is not a res judicata problem. We think it is rather a question of whether the appellant has “waived” his constitutional rights. It is not quite fair to say that he “waived” his right to assert in the administrative agency itself that the process afforded was not “due process.” For such an attack in the administrative agency itself on the ground of unconstitutionality would be futile. Cf. McNeese v. Board of Educ., supra, 373 U.S. at 675, 83 S.Ct. 1433. See also Judge Friendly’s explanation of Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967), in Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970); Friendly, Federal Jurisdiction: A General View 100 & n. 111. Nor is the plaintiff required to make the attack in an Article 78 proceeding in the state court, for section 1983 gives him an independent supplementary cause of action, and he may choose the federal court as the preferred forum for the assertion of constitutional claims of violation of due process. McNeese v. Board of Educ., supra. Indeed, if waiver is treated as a modality of exhaustion of remedy, the exhaustion, similarly, need not be of the state judicial remedy, but only of the administrative remedy. See James v. Board of Educ., 461 F.2d 566 (2d Cir. 1972).

Of course, where a constitutional issue is actually raised in the state court, as it can be in an Article 78 proceeding by treating it as an action for a declaratory judgment, Matter of Kovar-sky v. Housing & Development Administration, 31 N.Y.2d 184, 335 N.Y.S.2d 383, 286 N.E.2d 882 (1972), the litigant has made his choice and may not have two bites at the cherry. See Thistle-thwaite v. City of New York, 497 F.2d 339 (2d Cir. 1974). Nor need we consider here the situation of a constitutional claim where no independent supplementary cause of action like an action under the Civil Rights Act is involved, and where the constitutional claim could have been adjudicated just as well by the state court. See American Surety Co. v. Baldwin, supra, 278 U.S. at 164-167, 53 S.Ct. 98. For the foregoing reasons policy prevents the application of res judicata (claim preclusion) in this case.

If we treat the problem as a more limited one of collateral estoppel (issue preclusion), policy still prevents its application for the reasons given. In addition, for the doctrine of issue preclusion to be applicable, the determination of the issue must have been necessary to the decision. Restatement (Second) of Judgments § 68h (Tent. Draft No. 1, 1973); Halpern v. Schwartz, 426 F.2d 102 (2d Cir. 1970). There may have been a number of reasons why Lombard was dismissed without a determination on the merits of the issue whether Murphy’s charges were based upon bias or even reprisal. The failure to put Murphy on his oath and to permit Lombard to cross-examine him tends to support the conclusion that a finding on Murphy’s bias was not necessary to the decision that Lombard was mentally unfit.

Finally, the policy conclusions may be stated in summary form. First, it is not consistent with Monroe v. Pape, supra, to put appellant in a position where he cannot raise the constitutional question on an application for a writ of cer-tiorari either to the state court or to the federal court, i. e., to any court. Second, it is not consistent with constitutional due process to permit to stand a “finding” that appellant is, in effect, mentally incompetent or inadequate without giving him an opportunity in any tribunal to confront his accusers in an evidentiary type of hearing.

II

Turning to the merits, we hold that appellant’s case comes within the exception stated in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Though Lombard did not have tenure and, therefore, presumptively had no property right either as a probationary or substitute teacher, Canty v. Board of Educ., 470 F.2d 1111 (2d Cir. 1972), cert. denied, 412 U.S. 907, 93 S.Ct. 2301, 36 L.Ed.2d 973 (1973), he was deprived of his reputation as a person who was presumably free from mental disorder. Without his being given the right to confront witnesses, the termination of his probationary employment was recommended by the Committee of the Superintendent on the primary ground: “I. Illogical and disoriented conversation, causing request for examination by the Medical Department, which found him unfit for duty.”

This is not only a finding but a stigma. If it is unsupportable in fact, it does grievous harm to appellant’s chances for further employment, as indeed the record demonstrates, and not only in the teaching field. For that reason he was entitled to a full hearing.

The distinction taken by the Court in Roth is that where the appellant’s “good name, reputation, honor, or integrity is at stake” or “the State, in declining to re-employ [the respondent], imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities,” 408 U.S. at 573, 92 S.Ct. at 2707, he may claim a deprivation of “liberty” under the due process clause of the fourteenth amendment. A charge of mental illness, purportedly supported by a finding of an administrative body, is a heavy burden for a young person to carry through life. A serious constitutional question arises if he has had no opportunity to meet the charge by confrontation in an adversary proceeding. Cf. Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966) (accusation of racial bias). Unfortunately, the district court did not write an opinion revealing the precise basis of its decision. But we construe the judge’s ruling as resting on a determination- — -which we have held to be incorrect —that Lombard had no protected interest entitling him to due process. We conclude, therefore, that he should be given a trial in the district court to determine whether appellees have violated his federal constitutional rights. Cf. Arnett v. Kennedy, 416 U.S. 134, 156-159, 167, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (noting right to plenary post-termination hearing). Summary judgment was inappropriate. Cf. Leonard v. Sugarman, 466 F.2d 1366, 1367 (2d Cir. 1972) (plaintiff did not “seriously contest” charges of misconduct). In reversing the judgment, we remand for further consideration of Lombard’s motion for a preliminary injunction in conformity with this opinion.

Judgment reversed and remanded.

      . 42 U.S.C. § 1983 reads as follows : .
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . Although appellant alleges that his first amendment rights have been violated, he offered no factual support in his affidavit in the district court. In view of our disposition we leave the issue without comment.

      . As noted, Judge Travia, without writing an opinion, dismissed the action on the ground that the complaint failed to state a claim upon which relief can be granted. Theoretically, under Rule 12(b) (6) of the Federal Rules of Civil Procedure, the inquiry antecedent to this type of dismissal would be restricted to searching the face of the complaint. In his order of dismissal, however, Judge Travia noted that he had relied upon affidavits filed by the plaintiff and the defendants, affidavits which we find contain matters outside the pleadings. In effect, therefore, the judge was required to, and presumably did, dispose of the motion before him as if it were one seeking summary judgment.

      . A District Superintendent, on June 23, 1969, disapproved Mr. Murphy’s charge that the plaintiff had hit certain students because investigation “indicates that there is insufficient reliable evidence to prove that in fact these acts took place.” And we note that Mr. Murphy’s charge that appellant had committed acts showing prejudice against black pupils was not found to be a ground for the recommendation,


author: CELEBREZZE, Circuit Judge.

text:
    Dennis W. BAKER, Plaintiff-Appellee, v. BALTIMORE & OHIO RAILROAD COMPANY, Defendant-Appellant.
    No. 73-2213.
    United States Court of Appeals, Sixth Circuit.
    Argued April 3, 1974.
    Decided Aug. 29, 1974.

      James L. O’Connell, Cincinnati, Ohio, for defendant-appellant; Lindhorst & Dreidame, Cincinnati, Ohio, on briefs.
    C. Donald Heile, Cincinnati, Ohio, for plaintiff-appellee; Charles J. Kelly,
    Cunningham, Cunningham, Heile & Kelly, Cincinnati, Ohio, on briefs.
    Before CELEBREZZE, McCREE, Circuit Judges, and WALINSKI, District Judge.

       The Honorable Nicholas J. Walinski, Judge, United States District Court for the Northern District of Ohio, sitting by designation.

   CELEBREZZE, Circuit Judge.

The Baltimore & Ohio Railroad Company appeals from a jury verdict and judgment awarding Appellee $86,500 in damages under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60 (1972). Robert Kuntz and Dennis Baker inspected railroad cars for Appellant Baltimore & Ohio Railroad Company. On December 20, 1970, at approximately 3:00 a. m., they were on a lunch break inside the inspectors’ shanty. Kuntz brought a target pistol into the shanty and showed it to another employee. He then placed the pistol in the pocket or folds of his coat, which was resting on top a candy machine. A supervisor summoned Kuntz and Appellee to inspect a car which had just arrived. While Kuntz was in the process of removing his coat from the candy machine, the pistol fell to the floor and discharged, causing permanent damage to Appellee’s thigh.

The railroad had no regulations concerning the carrying of pistols by its ear inspectors. No railroad foreman or supervisor knew of the presence of Kuntz’ pistol on Appellant’s premises until after the mishap occurred.

Appellant raises two basic objections to the proceedings below. First, it argues that it was entitled to a directed verdict or at least to more favorable jury instructions as to liability. Second, it asserts that the District Court erred in instructing the jury on damages, on the grounds that lost future wages should not have been allowed and that future damages should not have been permitted because of the absence of evidence of a proper interest rate.

Appellant’s basic contention is that it is not liable, as a matter of law, for Ap-pellee’s injury. This argument is based on two related assertions — that employee Kuntz was not acting in the course and scope of his employment at the time the accident occurred and that Kuntz’ negligence resulted solely from the presence of the pistol on the premises rather than from any act in the course of Kuntz’ employment.

Appellant’s liability in this matter is a question of federal law, to be determined by reference to the policies that under gird the FELA. Central Vermont Ry. v. White, 238 U.S. 507, 511-512, 35 S.Ct. 865, 59 L.Ed. 1433 (1915). The enactment of the FELA represented “an avowed departure from the rules of the common law.” Sinkler v. Missouri Pacific R.R., 356 U.S. 326, 329, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958). Rather than adopting the common law view that the torts of fellow servants are distinct from those of the employer, Congress enacted a national standard designed to promote

the welfare of both employer and employee, by adjusting the losses and injuries inseparable from industry and commerce to the strength of those who in the nature of the case ought to share the burden.

As the Supreme Court stated in Sinkler, 356 U.S. at 330, 78 S.Ct. at 762:

[A] railroad worker may recover from his employer for an injury caused in whole or in part by a fellow worker, not because the employer is himself to blame, but because justice demands that one who gives his labor to the furtherance of the enterprise should be assured that all combining their exertions with him in the common pursuit will conduct themselves in all respects with sufficient care that his safety while doing his part will not be endangered. If this standard is not met and injury results, the worker is compensated in damages.

FELA’s liberal purpose must be kept in mind when confronting arguments that would restrict an employer’s liability under the Act.

Appellant argues that it is not liable for the negligence of its employee Kuntz unless Kuntz’ negligence occurred while he was “in the course and scope of his employment,” and Appellant construes that term to require that Kuntz’ negligence must have occurred while he was acting “in furtherance of defendant’s business.” It argues that Kuntz was not so acting when he was removing his coat from the candy machine. On this ground Appellant claims that the District Court should have directed a verdict in its favor or should have granted a jury instruction to the desired effect.

We disagree. Under the FELA a defendant’s liability for the negligence of its servants is not-restricted by the common law doctrine of respondeat superior. Rather, the FELA has made the railroad liable to injured employees “for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees” of the railroad. 45 U.S.C. § 51 (1972). It is unnecessary to show that such persons were negligent while performing a particular act “in furtherance of their master’s business,” as this common law term has been interpreted. See, e. g., Jackson v. Chicago, R. I. & P. Ry., 178 F. 432 (8th Cir. 1910). Under the Supreme Court’s reasoning in Sinkler, the restrictive view of railroad liability that Appellant demands is untenable.

Thus, it was proper for the District Court to refuse an instruction stating the restrictive “in the furtherance of the master’s business” test. Instead, the District Court instructed the jury that the railroad was liable for all negligent acts of its employees “committed by such employees while in the performance of their duties and within the scope of their employment.” Later in his charge the District Judge stated:

“Now, your specific question is this: At or before the time this incident occurred had [Kuntz] returned to the control of his master, his foreman, or had he returned to the business of the Baltimore & Ohio Railroad at or before [sic] this occurred?
“If you find by a preponderance that he had, then he was engaged in the course of his employment at the time of the incident.”

We believe that this instruction was too favorable to Appellant, because it adopts a restrictive “in the course of employment” test by suggesting that Kuntz was not in the course of his employment while on his lunch break. Appellee, however, has not challenged the validity of the Court’s instructions. Assuming that a “course of employment” test would apply, the better view is that “[t]he scope of employment includes not only actual service, but also those things necessarily incident thereto,” Virginian Ry. v. Early, 130 F.2d 548, 550 (4th Cir. 1942), such as coming to and leaving work while on the employer’s premises. Erie R.R. v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057 (1917); North Carolina R.R. v. Zachary, 232 U.S. 248, 260, 34 S.Ct. 305, 309, 58 L.Ed. 591 (1914) (visit to house was not “at all out of the ordinary” and was not “inconsistent with his duty to his employer”), and resting while on duty, Mostyn v. Delaware, L. & W.R.R., 160 F.2d 15 (2d Cir. 1947). Thus, it may be said that Kuntz was in the course of his employment during the lunch break as well as while removing his coat from the candy machine. Indeed, on very similar facts in a Federal Tort Claims Act case, where the “course of employment” test does apply, we concluded that a negligent servant was in the scope of her employment when a pistol discharged, injuring a hospital patient. Russell v. United States, 465 F.2d 1261 (6th Cir. 1972).

It is clear from the jury’s conclusion that the correct result was not affected by the instructions, since the jury found Appellant liable for Kuntz’ negligence in removing his coat from the machine. Thus, since despite our reservations about the District Court’s instructions the jurors reached the proper conclusion, we find no reversible error. Tyree v. New York Central R.R., 382 F.2d 524, 527 (6th Cir. 1967); Spaeth v. United States, 232 F.2d 776, 777 (6th Cir. 1956). The possible fault in the jury charge was in Appellant’s favor, and it cannot claim a new trial by virtue of such benefit.

A second branch of Appellant’s argument that it should have received a directed verdict or more favorable jury instructions as to liability is that Appel-lee’s injury was caused primarily by Kuntz’ bringing a pistol into the inspector’s shanty, which in itself may not have been an act of negligence.

In this case, however, the act complained of was Kuntz’ removing his coat from the candy machine while forgetting about the pistol, in preparation for inspecting a railroad car. The test for whether this act amounts to negligence under the FELA is whether the act “played any part, even the slightest, in producing [Appellee’s] injury.” Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493, reh. denied, 353 U.S. 943, 77 S.Ct. 808, 1 L.Ed.2d 764 (1957); Tyree v. New York Central R.R., 382 F.2d 524 (6th Cir. 1967). We have held that it is reversible error for a District Court to fail to instruct the jury that employer negligence “in whole or in part” suffices to establish employer liability, thus emphasizing that in FELA cases “Congress has deliberately established a more protective principle for railroad employees than that of the common law.” Hausrath v. New York Central R.R., 401 F.2d 634, 638 (6th Cir. 1968). See also Rodriguez v. Delray Connecting R.R., 473 F.2d 819, 820 (6th Cir. 1973). This principle holds true where the employer is sued because of the negligence of its employees, as well as where the employer is sued because of the employer’s failure to provide a safe place of work. See 45 U.S.C. § 51 (1972). Appellant is liable if Kuntz’ negligence in removing his coat from the candy machine while forgetting about the pistol played “a part” in causing Appellee’s injury. Tyree, 382 F.2d at 529; Hausrath, 401 F.2d at 637.

In determining whether Appellant's motion for a directed verdict should have been granted, we must construe the evidence in the light most favorable to Appellee, drawing inferences on his behalf that the evidence supports. Rodriguez v. Delray Connecting R.R., 473 F.2d 819, 820 (6th Cir. 1973); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). Under this standard, we conclude that the evidence supports a finding that Kuntz’ negligence in removing his coat from the machine while forgetting that the pistol was placed on top of it, played “a part” in causing Appellee’s injury. Without such negligence, the pistol would not have discharged. Thus, the motion for a directed verdict was properly overruled.

■ Two final objections pressed on this appeal concern the proper measure of damages. The first objection is that the District Court should have instructed the jury not to award any damages representing lost future wages, in view of higher educational opportunities open to Appellee, which would presumably allow him to secure a higher paying position than that of a railroad car inspector.

The evidence stipulated on appeal, pursuant to Fed.R.App.P. 10(b), establishes that since his injury Appellee could not do the work of a railroad car inspector or carman, that Appellee has taken sedentary employment at a lower salary than his previous position, and that Appellee was qualified and financially able “to pursue further education which would enable him to perform in any line of work, with the exception of the professional level.” The District 'Ooui-t.submitted the following charge to the jury:

“[T]he law does require that any person who sustains a personal injury must mitigate his damage to the extent reasonably possible. Therefore, with respect to any claim of the plaintiff concerning a reduction in earning power, future lost wages or any inability to earn as much in the future as he would have been able to earn but for the injury sustained in December of ’70, the plaintiff was required to mitigate his damage, and such mitigation may include further scholastic training, vocational or rehabilitation training or any other preparation reasonably necessary to improve the plaintiff’s earning ability in the light, of his injury.”

In considering whether the District Court should have refused to let the jury assess future wages lost because of Appellee’s injury, we start from the proposition that Appellee was entitled to recover for any loss of earning power suffered because of Appellant’s negligence. In assessing damages proximately caused by Appellant’s negligence, the jury was to consider whether Appellee exercised reasonable efforts to secure gainful employment. If Appellee failed to do so, the loss of wages is said to be Appellee’s choice rather than a proximate result of Appellant’s negligence. Hill v. Franklin County Board of Education, 390 F.2d 583, 585 (6th Cir. 1968).

Appellant seems to assert that Appel-lee’s failure to enroll in college constitutes a failure to exert reasonable efforts to secure gainful employment. The decision to pursue higher education, however, cannot be so construed as a matter of law. Such a decision involves a commitment to new career paths, years of diligent intellectual effort, and potential hardships of various kinds. Furthermore, there is no assurance that Appellee would actually have increased his earning power after spending the necessary funds to attend college.

We decline to adopt a rule that manual laborers who are injured and prevented from returning to their chosen line of work are foreclosed from recovering for their lost earning capacity because they choose not to pursue a new career path of speculative financial reward. The jury was entitled to consider “the extent of Plaintiff’s injuries, his education, station in life, and character” in assessing Appellee’s lost earning power in such amount as it deemed reasonable. Affolder v. New York, C. & St. L. R.R., 79 F.Supp. 365 (E.D.Mo.1948), aff’d, 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683 (1950). Whether Appellee’s failure to pursue higher educational opportunities amounted to a lack of reasonable effort to pursue gainful employment was one of many factors the jury was instructed to consider. Reasonable minds can differ on this question, so that the jury was properly allowed to decide it. Ginsburg v. Ins. Co. of North America, 427 F.2d 1318, 1320 (6th Cir. 1970); Doane Agricultural Service v. Coleman, 254 F.2d 40, 42 (6th Cir. 1958); Lovas v. General Motors Corp., 212 F.2d 805, 807 (6th Cir. 1954).

The second objection to the District Court’s instructions on damages is its failure to remove the question of future damages from the jury because of the absence of proof of the highest rate of interest at which an award for future damages could be discounted. We squarely rejected Appellant’s argument in Baynum v. Chesapeake & Ohio Ry., 456 F.2d 658, 661 (6th Cir. 1972), and we adhere to that decision.

The decision of the District Court is affirmed.

      . S.Rep.No.460, 60th Cong., 1st Sess. 3 (1908).

      . We note that this case does not involve an employee’s “sportive” act. In Copeland v. St. Louis — S. F. Ry., 291 F.2d 119 (10th Cir. 1961), for instance, the Tenth Circuit held that a railroad was not liable for injuries to an employee resulting from a i>ractical joke of his fellow worker. Over the sharp dissent of Chief Judge Murrah, the majority held that “the acts of the fellow employee which caused plaintiff’s injury were wholly outside the scope of his employment, intended only to further his own interests, and not those of his employer, and were not chargeable to his employer.” 291 F.2d at 122.
      It might be suggested that the basis for the Copeland decision and others like it (see Hoyt v. Thompson, 174 F.2d 284 (7th Cir. 1949); Lavender v. Illinois Central R. R., 358 Mo. 1160, 219 S.W.2d 353, cert. denied, 338 U.S. 822, 70 S.Ct. 67, 94 L.Ed. 499 (1949); Annotation, 33 A.L.R.2d 1295, 1309 (1954)) is that the acts complained of were not negligence at all, but were intentional actions of employees, for which FELA does not hold employers liable. See Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299 (1922). We have no occasion to consider the scope or validity of these decisions, in view of the facts of this case.

      . While the issue has not been presented by this case, we are not persuaded that the term “employee” in the statute is to be defined as “one acting in the course and scope of his employment.” The use of this restrictive definition seems to apply a common law rule to a statute designed specifically to abrogate the common law. Sinkler, 356 U.S. at 329-330, 78 S.Ct. 758. Recognizing that some definition of the term “employee” must be adopted, we think it more in keeping with the purposes of the Act to apply a liberal rule. This rule might extend liability to the railroad for all negligent acts by employees which occur during the hours of the employee’s working day on the employer’s premises. That question, however, is not before us, as Appellee did not object to the “course and scope of employment” test.

      . Tlie cases cited above deal with the question whether an injured employee was acting within the course of his employment at the time he was injured. It occurs to us that, under the statute, a more liberal rule would apply in determining whether the acts of a negligent employee were within the scope of the statutes.