author: STEVENS, Circuit Judge.

text:
    Jane DOE and Herbert F. Sandmire, M.D., Plaintiffs-Appellees, v. BELLIN MEMORIAL HOSPITAL et al., Defendants-Appellants.
    No. 73-1396.
    United States Court of Appeals, Seventh Circuit.
    Argued May 30, 1973.
    Decided June 1, 1973.

      Alexander R. Grant, Gregory B. Conway, Green Bay, Wis., for defendants-appellants.
    Paul L. Jonjak, Sturgeon Bay, Wis., for plaintiffs-appellees.
    Before KILEY, PELL and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

The district court ordered the defendant hospital to make its facilities and staff available to the plaintiff doctor for the immediate performance of an abortion on the plaintiff, Jane Doe. We stayed that order and expedited defendants’ appeal. The ultimate issue is whether the defendants, who are regulated by the State of Wisconsin and have accepted financial support pursuant to the Hill-Burton Act, 42 U.S.C. § 291, may refuse to perform abortions without offending the Civil Rights Act, 42 U.S.C. § 1983. We hold that they may, since the record does not indicate that their refusal was directly or indirectly influenced by the State or by persons acting under color of State law.

On April 26, 1973, plaintiff filed a verified complaint, together with the affidavit of Dr. Sandmire, plaintiff Doe’s attending physician and a member of the staff of the defendant hospital. For purposes of decision we accept the facts as stated in those documents notwithstanding defendants’ objection to the district court’s refusal to hear their witnesses. These facts are fairly summarized in plaintiffs’ brief from which we quote:

“This case arises from Beilin Memorial Hospital’s refusal to permit use of its facilities for an abortion for Jane Doe and its enforcement of abortion-restricting rules.
“Jane Doe, a resident of Shawano County, Wisconsin, became pregnant on February 4, 1973, and was scheduled for an abortion in a Madison, Wisconsin, clinic on April 4, 1973, but could not keep the appointment because of a severe snow storm. Her pregnancy had advanced too far to permit a clinic abortion, so Jane Doe’s personal physician referred her to Dr. Herbert F. Sandmire, who performed an examination on April 19, 1973. Dr. Sandmire determined, after consultation with his patient, that in his medical judgment, the patient’s pregnancy should be terminated in a hospital.
“Practical considerations, such as time, distance, and expense, normally limit Dr. Sandmire’s practice to Green Bay hospitals and he has practiced his profession at Beilin Memorial Hospital for a number of years. He contacted St. Vincent Hospital, St. Mary’s Hospital, and Beilin Memorial Hospital, the only Green Bay hospitals with suitable facilities, to request their use for the operation, but in each instance his request was refused.
“Bellin Memorial Hospital informed Dr. Sandmire it was enforcing rules restricting abortions to cases where pregnancy would: seriously threaten the health or life of the mother, or re-suit in delivery of an infant with grave and irreparable physical deformity or mental retardation, or if the pregnancy has resulted from legally established rape or incest. These rules make no provision for seeking consent from a putative father. All abortions are to be reviewed by a medical committee which then reports to the staff and Board of Directors.
“Beilin Memorial Hospital is regulated by the state, has received funding under the Hill-Burton Act from the federal government and has been an agency through which the State of Wisconsin and the United States Government have provided medical services for residents of Northeastern Wisconsin, but the hospital is now denying Jane Doe and Dr. Sandmire use of its facilities by enforcing abortion-restricting rules virtually identical to those [required by portions of the Georgia statute] declared unconstitutional [in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, on January 22, 1973]. In the past it has denied Dr. Sandmire use of its facilities for an abortion restricted by these rules, it has denied the facilities for Jane' Doe because of these rules, and apparently it intends to continue to enforce these rules against Dr. Sand-mire’s patients in the future.
“Every passing day increases the medical risk to Jane Doe and at the time of Dr. Sandmire’s examination, she was nearing the end of her first trimester of pregnancy on May 4, 1973, at which point medical risks increase dramatically.
“Dr. Sandmire and Jane Doe, therefore, brought this action against Bel-lin Memorial Hospital and certain of its officials and agents seeking: [an injunction restraining defendants from denying the use of their facilities for an abortion to be performed on Jane Doe or any other patients of Dr. Sandmire in the future, and for certain other relief].”

On May 2, 1973, the district court granted a preliminary injunction. Because we seriously doubted that plaintiffs would ultimately succeed on the merits, and saw a practical risk that immediate performance of the abortion might result in a termination of the litigation in advance of appellate review, we granted defendants’ application for a stay on May 3. We now reverse.

I.

Defendants argue that we should pot reach the merits because plaintiffs have failed (a) to join the putative father as a party, or (b) to establish irreparable harm. We are not persuaded by either of these arguments^

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court held that the right to make the “abortion decision” is an aspect of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. In both Mr. Justice Blackmun’s opinion for the Court and Mr. Justice Stewart’s concurring opinion, the possessor of that right is plainly identified as the woman; no reference is made to the putative father. The analysis in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 31 L.Ed.2d 349 from which Mr. Justice Stewart quoted, plainly indicates that the constitutionally protected right of privacy is an individual rather than a joint right. He stated:

“As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, [92 S.Ct. 1029, 1038, 31 L.Ed.2d 349], we recognized ‘the right of the individual married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.
-!v vr X *X* vr X
“Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.” 410 U.S. at 169, 93 S.Ct. at 735 (Mr. Justice Stewart concurring).

We find nothing in these opinions to support the suggestion that the woman’s right to make the abortion decision is conditioned on the consent of the putative father. In fact, the conclusion that the word “person,” as used in the Fourteenth Amendment, does not include the unborn (at p. 729), points in the other direction and serves to distinguish Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, on which defendants rely. The putative father, whoever he may be, is not an indispensable party.

Defendants argue that plaintiff has not proved irreparable injury because the record does not foreclose the possibility that she could travel to another community and obtain the care she needs. But if she has a federal right to have the operation performed in Bel-lin Memorial Hospital, where her doctor is a member of the staff, and if, as her doctor has attested, there are increasingly serious hazards associated with the performance of the abortion, it is doubtful that the recovery of purely monetary damages would provide her with an adequate remedy. The quality, rather than the magnitude, of the potential risks supports the district court’s evaluation of the character of her possible injury as “irreparable”. In view of the sensitive interests at stake, we are persuaded that the record contains an adequate showing of the element of irreparable damage needed for preliminary injunc-tive purposes. We therefore turn to the merits.

II.

A woman’s right to make the abortion decision is protected by the Fourteenth Amendment from deprivation by a state. For that reason a statute which makes the performance of an abortion a crime, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 1471 (1973), or which requires the medical profession to observe unnecessary abortion-restricting rules, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), is invalid. The rationale of those cases has also been applied to rules adopted by the Worcester City Hospital, Hathaway v. Worcester City Hospital, 475 F.2d 701 (1st Cir. 1973), and by the New York Commissioner of Social Services, Klein, et al. v. Nassau County Medical Center, et al., 347 F.Supp. 496 (E. D.N.Y.1972).

The rationale of those cases is, however, inapplicable to private institutions. There is no constitutional objection to the decision by a purely private hospital that it will not permit its facilities to be used for the performance of abortions. We think it is also clear that if a state is completely neutral on the question whether private hospitals shall perform abortions, the state may expressly authorize such hospitals to answer that question for themselves.

The Georgia abortion statute which was reviewed in detail in Doe v. Bolton, supra, contained such a provision. The Supreme Court did not expressly pass on the validity of that provision, but since it was attacked in one of the amicus briefs, and since the Court reviewed the entire statute in such detail, it is reasonable to infer that it considered such' authorization unobjectionable. After summarizing the other provisions of the Georgia statute, the Court noted:

“There is also a provision (subsection (e) ) giving a hospital the right not to admit an abortion patient and giving any physician and any hospital employee or staff member the right, on moral or religious grounds not to participate in the procedure.” 410 U. S. at 184, 93 S.Ct. at 743.

And in connection with its discussion of the statutory requirement of approval for abortions by a hospital committee, the Court stated:

“We are not cited to any other surgical procedure made subject to committee approval as a matter of state criminal law. The woman’s right to receive medical care in accordance with her licensed physician’s best judgment and the physician’s right to administer it are substantially limited by this statutorily imposed overview. And the hospital itself is otherwise fully protected. Under § 26-1202(e) the hospital is free not to admit a patient for an abortion. It is even free not to have an abortion committee. Further, a physician or any other employee has the right to refrain, for moral or religious reasons, from participating in the abortion procedure. These provisions obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital. Section 26-1202(e) affords adequate protection to the hospital and little more is provided by the committee prescribed by § 26-1202(b)(5).” 410 U.S. 197, 93 S.Ct. 750.

Thus, we assume that there is no constitutional objection to a state statute or policy which leaves a private hospital free to decide for itself whether or not it will admit abortion patients or to determine the conditions on which such patients will be accepted. Plaintiffs contend, however, that the hospital’s right to make that decision has been limited by two federal statutes, the Hill-Burton Act and § 1 of the Civil Rights Act of 1871, now 42 U.S.C. § 1983. We are not persuaded that either of those statutes, or the two in combination, have that effect.

No doubt the defendant hospital agreed to abide by a variety of regulatory terms related both to its operations and to the use of the Hill-Burton funds in connection with its acceptance of benefits under that Act. There is no evidence, however, that any condition related to the performance or non-performance of abortions was imposed upon the hospital. Unlike the fact situation in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), on which plaintiffs place heavy reliance, this record does not reflect any governmental involvement in the very activity which is being challenged. We find no basis for concluding that by accepting Hill-Burton funds the hospital unwittingly surrendered the right it otherwise possessed to determine whether it would accept abortion patients.

Nor do we believe that the implementation of defendant’s own rules relating to abortions is action “under color of” state law within the meaning of § 1983. The State of Wisconsin is not a beneficiary of those rules and cannot be characterized as a “joint participant” in their adoption or enforcement. Cf. Burton v. Wilmington Parking Authority, 365 U.S. 715, 724-725, 81 S.Ct. 856, 6 L.Ed.2d 45. There is no claim that the state has sought to influence hospital policy respecting abortions, either by direct regulation or by discriminatory application of its powers or its benefits. Insofar as action of the State of Wisconsin or its agents is disclosed by the record, the State has exercised no influence whatsoever on the decision of the defendants which plaintiffs challenge in this litigation.

The facts that defendants have accepted financial support, as alleged, from both the federal and state governments, and that the hospital is subject to detailed regulation by the State, do not justify the conclusion that its conduct, which is unaffected by such support or such regulation, is governed by § 1983. In Lucas v. Wisconsin Electric Power Co., 466 F.2d 638 (7th Cir. 1972), we rejected a stronger argument for application of that statute to a public utility. We stated:

“The ‘under color of’ provision encompasses only such private conduct as is supported by state action. That support may take various forms, but it is quite clear that a private person does not act under color of state law unless he derives some ‘aid, comfort, or incentive,’ either real or apparent, from the state. Absent such affirmative support, the statute is inapplicable to private conduct.
“We believe that affirmative support must be significant, measured either by its contribution to the effectiveness of defendant’s conduct, or perhaps by its defiance of conflicting national policy, to bring the statute into play. There is no such significant affirmative state support of Wisconsin Electric’s proposed termination of plaintiff’s service.” 466 F.2d at 654-656.

See also Bright v. Isenbarger, 445 F. 2d 412 (7th Cir. 1971); Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968); Mulvihill v. Butterfield Mem. Hosp., 329 F. Supp. 1020 (S.D.N.Y.1971). Contra, Citta v. Delaware Valley Hosp., 313 F. Supp. 301 (E.D.Pa.1970).

Plaintiffs argue that if Hill-Burton funds had not been allocated to defendant and other private hospitals, those funds would have been used to expand or construct public facilities which could not refuse to admit abortion patients. Even if this be true, the availability of alternate public hospitals would not vindicate the right plaintiff asserts in this case. She claims, in essence, the right to compel Beilin Memorial Hospital to make its facilities available to her. Her claim of irreparable injury forecloses any assumption that a hypothetical substitute would be adequate to serve her needs. Her claimed right to have the •abortion performed at the hospital of her choice has not been impaired by that hospital’s acceptance of Hill-Burton funds.

The order of the district court is Reversed.

      . We assume that the witnesses tendered by the defendants would have amplified or explained plaintiffs’ version of the facts, but since they did not submit any affidavits of their own, and we find no offer of proof contradicting the plaintiffs’ statements, we conclude that defendants were not prejudiced by the abbreviated character of the record. The question is whether the record which plaintiffs made is adequate to support the injunc-tive relief granted by the district court.

      . We have supplied the bracketed words.

      . On May 4, the United States Supreme Court denied appellees’ motion to vacate the stay.

      . “This right of privacy whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
      “We therefore conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.” 410 U.S. at 153, 93 S.Ct. at 727.

      . We note, however, that the Supreme Court expressly reserved decision on any question relating to rights of the putative father, “if any exist in the constitutional context.” See Roe v. Wade, 410 U.S. 113, at 165, 93 S.Ct. 705, at 733. 35 L.Ed.2d 1471.

      . We note in this connection that plaintiff Jane Doe intended to go to Madison on April 4 for a clinic abortion but was unable to do so because of the. weather. There is nothing in the record indicating that she could not now travel to Madison or some other city containing adequate hospital facilities.

      . Brief amici curiae on behalf of National Legal Program on Health Problems of the Poor, pp. 48-52.

      . The full text of subsection (») reads as follows:
      “(e) Nothing in this section shall require a hospital to admit any patient under the provisions hereof for the purpose of performing an abortion, nor shall any hospital be required to appoint a committee such as contemplated under subsection (b) (5). A physician, or any other person who is a member of or .associated with the staff of a hospital, or any employee of a hospital in which an abortion has been authorized, who shall state in writing an objection to such abortion on moral or religious grounds shall not be required to participate in the medical procedures which will result in the abortion, and the refusal of any such person to participate therein shall not form the basis of any claim for damages on account of such refusal or for any disciplinary or recriminatory action against such person.

      . 42 U.S.C. §§ 291-29lz.

      . Section 1983 provides:
      “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 Consitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

      . In that case the Fourth Circuit pointed out:
      “Significant duties are imposed on the Surgeon General with respect to the ‘Non-Discrimination Report.’ 42 C.F.R. § 53.112 provides that a state agency’s findings must be approved by the Surgeon General. Consequently, the Surgeon General has the duty of determining whether the state agency has properly applied the ‘separate-but-equal’ formula, i. e., whether the state’s plan actually makes ‘equitable provision’ for all population groups. The ‘Non-Discrimination Report’ submitted by the North Carolina Medical Care Commission on January 3, 1962, was approved by the Surgeon General on January 22, 1962.
      “The point of present interest is not the equality or lack of equality ‘separate-but-equal,’ but the degree of participation by the national and state governments in the geographical proration of hospital facilities throughout the state.
      * * * * *
      “Moreover, the Government’s argument stresses the fact that the challenged discrimination has been affirmatively sanctioned by both the state and the federal government pursuant to federal law and regulation. 42 U.S.C.A. § 291e(f) ; 42 C.F.R. § 53.112. It is settled that governmental sanction need not reach the level of compulsion to clothe what is otherwise private discrimination with ‘state action.’ ” 323 F.2d at 965, 968.

      . Judge Friendly there stated :
      “The contention that New York’s regulation of educational standards in private schools, colleges and universities, e. g., Education Law §§ 207, 215, 305(2), makes their acts in curtailing protest and disciplining students the acts of the State is equally unpersuasive. It overlooks the essential point — that the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury. Putting the point another way, the state action, not the private action, must be the subject of complaint. See Burton v. Wilmington Parking Authority, supra, 365 U.S. at 725, 81 S.Ct. 856, 6 L.Ed.2d 45; Grossner v. Trustees of Columbia University, 287 F.Supp. 535, 548 (S.D. N.Y.1968). When the state bans a subject from the curriculum of a private school, as in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), its responsibility needs no elucidation. State action would be similarly present here with respect to all the students if New York had undertaken to set policy for the control of demonstrations in all private universities or in universities containing contract colleges. Cf. Public Utilities Comm’n of District of Columbia v. Pollak, 343 U.S. 451, 461-463, 72 S.Ct. [813] 96 (sic) L.Ed. 1068 (1952). But the fact that New York has exercised some regulatory powers over the standard of education offered by Alfred University does not implicate it generally in Alfred’s policies toward demonstrations and discipline.”


source: Caselaw Access Project

author: LEWIS R. MORGAN, Circuit Judge:

license: Public Domain

text:
    Cicero Eugene HINES, Etc., et al., Plaintiffs-Appellants, v. RAPIDES PARISH SCHOOL BOARD and Allen Nichols, Superintendent, Defendants-Appellees.
    No. 72-3227.
    United States Court of Appeals, Fifth Circuit.
    May 8, 1973.
    Rehearing Denied June 6, 1973.

      Wendell G. Lindsay, Jr., Baton Rouge, La., for plaintiffs-appellants.
    Edwin 0. Ware, Dist. Atty., Gus Voltz, Jr., Asst. Dist. Atty., Alexandria, La., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and MORGAN and CLARK, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

This appeal stems from the complaint of a group of parents in Rapides Parish, Louisiana, who are unhappy with the present result of pupil assignments made in compliance with orders of this court and the district court for the Western District of Louisiana. See Valley v. Rapides Parish School Board, 5 Cir. 1970, 434 F.2d 144. These appellants instituted suit, styled as a class action, in the district court for the Western District of Louisiana alleging inter alia that the unitary school system envisioned by this court’s previous order had not been achieved and that by operating schools with black majorities the school board was providing unequal and less educational opportunity. The district court refused to allow this action to be maintained as a class action and then dismissed the suit in its entirety. In this appeal, plaintiffs challenge both of these determinations.

I

The plaintiffs in this action are a group of parents, both black and white, whose children were assigned to or are attending a school within the Rapides Parish School System in which black pupils are in a majority. Three of .the parents are black and the rest are white. Two of the black parents sent their children to the predominantly white schools where they were assigned in compliance with Valley and state that they are satisfied with the education the children are receiving and agreed to be plaintiffs only because they were requested by some of the other plaintiffs. The third black plaintiff took advantage of the majority to minority transfer system in order to have his child attend Alexandria Senior High School, the newest school facility in the parish. Following the assignment of their children to the predominantly black schools in that district, none of the white parents named as plaintiffs allowed their children to attend for even a single day. Two of the plaintiffs sent their children to live with relatives elsewhere; three others sent their children to private academies; and two more moved out of the school zone to escape the assignment to the predominantly black school. With these factors in mind, we turn to consider previous federal court desegregation actions involving Rapides Parish.

The original Valley v. Rapides Parish School Board case was a class action filed in March of 1965, seeking broad in-junctive and declaratory relief covering virtually all aspects necessary in desegregation of the school system. The plaintiffs in this action were black students and parents of black students attending the public schools in Rapides Parish. The United States was an active plaintiff-intervenor in that suit. A biracial committee was appointed in that case by the district court in September of 1970. This committee consisted of 11 blacks nominated by the plaintiffs and 11 whites nominated by the school board. Pursuant to, a plan drafted by the Department of Health, Education and Welfare, and approved by both the school board and the biracial committee, active steps were taken to integrate the various schools in the parish.

The children in Ward 8 (the domicile of all of the plaintiffs in the present Hines case at the time of assignment) were assigned to Peabody High School and Jones Street Junior High School. The adopted plan led to the assignment of 501 white students and 863 black students to Peabody High, and 280 white students and 763 black students to Jones Street Junior High. Following this order and the resulting assignment, there was a public outcry and an organized boycott of Peabody and Jones Street schools by white students and their parents. Substantially less than a third of the white students assigned to these schools ever attended them. Thus, the goals sought in the implementation of the initial plan had been somewhat frustrated by these subsequent events.

As the district court points out in its opinion in this case, the problems caused by this boycott are fully aware to the parties involved in the Valley case. It is apparent that the Valley case itself is not a closed file but rather it is indeed still an active viable lawsuit under the control of the district court. It was clearly spelled out in the district court’s Valley order of August 9, 1971, that the court had the intention of retaining active jurisdiction over that proceeding:

This Court shall retain jurisdiction of this proceeding in order to assure that the provisions of this judgment and any other matters pertaining and incidental to the preservation of a unitary public school system in Rapides Parish, Louisiana, shall be sufficiently and effectively carried out.

In its Hines opinion, the district court states that the biracial committee is still operative and that it conducts regular monthly meetings, has active sub-committees, and has acted as the principle agent of the court and the school board in the enforcement of student attendance zones.

II

The district court refused to allow the Hines plaintiffs to proceed as class representatives and ultimately dismissed the suit. The essence of the district court’s decision is that the original Valley plaintiffs are still active and are the proper parties to represent the interests which the Hines plaintiffs allege they desire to present. The court went on to state:

We find that plaintiffs do not have a genuine interest in the improvement of schools in which black students are in a majority and regardless of whether they profess to represent the white-minority in such schools or the entire school body. We hold in effect that plaintiffs do not have a proper and common interest with either group, and therefore cannot properly represent either of them.

The school board’s motion to dismiss was then granted. This action is an appeal by the new group of parents from that dismissal order.

Ill

In resolving this appeal, this court must attempt to set out a method which allows parent groups to present their complaints about the school system which results from a desegregation order without fostering a multiplicity of new lawsuits over the same complicated and emotional issues which have already once been fought out in an all too lengthy court battle. Certainly every group must be allowed the opportunity to show the court that the desired and legally required unitary school system has not been achieved by an earlier court order. We feel that there is a simple method for achieving this desired result without undue confusion and a multiplicity of lawsuits.

As pointed out above, the earlier desegregation order clearly provided that the district court in the Valley case retained jurisdiction “in order to assure that the provisions of this judgment and any other matters pertaining and incidental to the preservation of a unitary public school system, . . . shall be sufficiently and effectively carried out.” (emphasis supplied). The Hines complaint alleges that these plaintiffs seek institution of a unitary school system which they allege has failed to manifest itself under the earlier desegregation order. Their allegations seem to place them clearly within the area of jurisdiction retained by the district court in the Valley case.

Therefore, we feel that the proper course for parental groups seeking to question current deficiencies in the implementation of desegregation orders is for the group to petition the district court to allow it to intervene in the prior action. The petition for intervention would bring to the attention of the district court the precise issues which the new group sought to represent and the ways in which the goal of a unitary system had allegedly been frustrated. The district court could then determine whether these matters had been previously raised and resolved and/or whether the issues sought to be presented by the new group were currently known to the court and parties in the initial suit. If the court determined that the issues these new plaintiffs sought to present had been previously determined or if it found that the parties in the original action were aware of these issues and completely competent to represent the interests of the new group, it could deny intervention. If the court felt that the new group had a significant claim which it could best represent, intervention would be allowed.

IV

In light of the district court’s strongly worded opinion in this case we perceive no reason which would justify remanding this case to allow the plaintiffs to seek intervention. We find substantial support for the conclusions drawn by the district court with regard to these plaintiffs. The decision of the district court is, therefore,

Affirmed.

      . It appears from the transcript portion reproduced in the district court’s opinion that these Hines plaintiffs did make an attempt to intervene in the Valley suit but that that motion was denied. The court’s apparent rationale was that there was “final judgment” in the Valley case. Such a ruling is erroneous for it overlooks the broad retention of jurisdiction found in the Valley opinion.

      . In most school integration cases such intervention would most likely consist of the opportunity to present the claims to the court and to any group, such as the biracial committee in this case, working under the court’s supervision to achieve a unitary system and to have the allegations considered on the merits. Where a committee is involved, the court might feel it desirable to allow the new group representation on that body. This procedure would seem adequate to ensure that different points of view would be presented in the difficult and often emotional struggle to achieve the constitutionally mandated but highly ■ elusive unitary school system.


author: WISDOM, Circuit Judge:

text:
    Angel URTI, Plaintiff-Appellant, v. TRANSPORT COMMERCIAL CORPORATION, Defendant-Appellee.
    No. 72-2747.
    United States Court of Appeals, Fifth Circuit.
    June 13, 1973.
    Rehearing Denied Aug. 22, 1973.

      Charles J. Ferrara, New Orleans, La., Sol Gothard, Metairie, La., for plaintiff-appellant.
    G. Edward Merritt, Benjamin W. Yan-cey, New Orleans, La., for defendant-ap-pellee.
    Before JOHN R. BROWN, Chief Judge, and WISDOM and AINS-WORTH, Circuit Judges.
   WISDOM, Circuit Judge:

This case presents a challenge to the denial of a new trial. Angel Urti, plaintiff-appellant, was injured in the performance of his duties as a seaman aboard the S.S. Tamara Guilden. He filed suit against the owner of the vessel, Transport Commercial Corporation, for recovery under the general maritime law and under the Jones Act. The jury found that the shipowner was negligent, but that the ship was seaworthy. The jury further found /"that the plaintiff was eontributorily negligent to the extent of fifty per cent of his damages. His motion for a new trial was denied. On appeal, Urti contends that there was no evidentiary basis for the jury’s finding of contributory negligence and that the trial judge erred in not granting a new trial. The shipowner contends that, because Urti did not move for a directed verdict or for a judgment notwithstanding the verdict, he is precluded from challenging the legal sufficiency of the evidence for the jury’s verdict. We hold that there is no evidence in the record tending to show contributory negligence and that the district court erred as a matter of law in denying a new trial. Accordingly, we reverse and remand for a new trial.

I.

On November 15, 1966, while aboard the S.S. Tamara Guildén in the port of Haifa, Israel, Angel Urti, the plaintiff, was ordered to paint draft numbers on the stern of the vessel. He was lowered over the side of the vessel in a pontoon. The bosun, operating the winch, lowered the pontoon at Urti’s signal. To bring himself closer to the vessel, Urti used a two-inch breasting line which was attached to both the pontoon and to a pad-eye, a U-bolt, attached to the side of the vessel. The pontoon was supported by four one-inch wire lines attached to a bridle or ring which was in turn attached to the winch. The bosun told the plaintiff that he would slacken the wire lines, thus shifting more weight to the breasting line and causing it to become taut. This would naturally pull Urti closer to the ship. As the pontoon was being lowered in this fashion, the manila breasting line broke causing a shift in the position of the pontoon. The plaintiff fell forward striking his forearm and shoulder against the metal bridle or one of the wire cables.

The plaintiff alleged unseaworthiness on the basis of a defective rope. He also argued that the shipowner was negligent in assigning him an unsafe place to work, in providing him with unsafe equipment, and in assigning an insufficient number of men to perform this particular task. Both the plaintiff and the bosun testified that at least two more men were ordinarily required for this particular job.

When the motion for a new trial was argued the trial judge noted that there had been no challenge to the jury .instruction on contributory negligence. He pointed out that “the subject might have better been taken up at that time, but once it goes to the jury, of course, I am extremely reluctant to say now that the jury was wrong on this thing.” Although he denied the motion, the trial judge stated: “I think this is a case where I completely disagree with the jury’s verdict but I will let the Fifth Circuit decide on the jury’s verdict.”

II.

At the outset, the appellee argues that this Court is precluded from a review of the “legal sufficiency of the evidence” because the plaintiff did not move for a directed verdict or for judgment notwithstanding the verdict. The plaintiff’s failure to make these motions does not bar him from appealing on the ground that as a matter of law the trial court erred in not granting a new trial.

The function of the directed verdict and the judgment n. o. v. is to order a final verdict for the moving party, whereas the function of the new trial is to order a redetermination of the issues before a new jury. The motions for directed verdict and judgment n. o. v. require a district judge to decide whether, as a matter of law, the evidence, when considered in the light most favorable to the non-moving party, is legally sufficient to submit the case to the jury, or whether it is legally sufficient to support the jury’s verdict. See Glazer v. Glazer, 5 Cir. 1967, 374 F.2d 390, 400; 6A Moore’s Federal Practice.¶ 59.-04[5], p. 3715 (1972). C. Wright and A. Miller, 9 Federal Practice and Procedure, 2531-32 (1971). See discussion, Marsh v. Illinois, 5 Cir. 1949, 175 F.2d 498. Those motions are similar in effect to a motion for summary judgment in that they challenge the existence of a genuine issue of fact and that they seek a final judgment. 6A Moore’s Federal Practice, supra at 3715. See discussion, Cities Service Oil Co. v. Launey, 5 Cir. 1968, 403 F.2d 537. In contrast, the motion for a new trial invokes the sound judicial discretion of the district judge. “Although the evidence was legally sufficient to take the case to the jury so that a directed verdict was not justified, [still, a new trial may be proper where] the verdict is against the weight of the evidence.” 6A Moore’s Federal Practice ¶ 59.04[5], pp. 3715-16, ¶ 59.08[5].

Barring plain error, an appellate court may not grant a directed verdict or a judgment n. o. v. absent an appropriate motion in the district court. Johnson v. New York N.H. & H.R. Co., 1952, 344 U.S. 48, 50; 73 S.Ct. 125, 97 L.Ed. 77. That is to say, the appellate court may not review the “sufficiency of the evidence” and grant a final judgment in favor of a party who failed to so move. Hommel v. Jackson-Atlantic Lines, Inc., 5 Cir. 1971, 438 F.2d 307. “Sufficiency” here is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. An explication of the standards for determining sufficiency is set out in Boeing v. Shipman, 5 Cir. 1969, 411 F.2d 365. It is possible that “reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions,” Boeing, 411 F.2d 374, while at the same time the verdict would be “against the great weight of the evidence.” There are circumstances where a district judge might rationally deny the motions for directed verdict and judgment n. o. v., but grant the motion for a new trial. Planters v. Protection Mut. Ins. Co., 5 Cir. 1967, 380 F.2d 869, 881.

We have previously held that motions for directed verdict and judgment n. o. v. are not prerequisites to a motion for a new trial. United States v. Bucon Const. Co., 5 Cir. 1970, 430 F.2d 420; Citizens Nat’l Bank of Lubbock v. Speer, 5 Cir. 1955, 220 F.2d 889.

On appeal, when we review the denial of a motion for a new trial, we are not reviewing “sufficiency” in its technical sense; that is, we are not reviewing the question of whether it was erroneous to submit the case to the 'jury. Rather, we are reviewing whether the district judge has abused his judicial discretion in denying a new trial or whether as a matter of law the denial of a new trial was erroneous because there was an “absolute absence of evidence to support the jury’s verdict.” Indamer Corp. v. Crandon, 5 Cir. 1954, 217 F.2d 391, 393. Thus the appellee’s argument that we may not here review the sufficiency of the evidence is correct but in-apposite to this case.

Moreover, it would be poor judicial husbandry to require counsel ritualistically to move for a directed verdict and judgment n. o. v., regardless of his lack of conviction in their merit, to preserve his right to appeal the denial of a new trial. To demand a litany of introductory motions is not only illogical but harks back to the age of writs and technical pleading. We conclude that when a new trial is denied we should, by applying the proper appellate standard, review the decision of the district court. See Pruett v. Marshall, 5 Cir. 1960, 283 F.2d 436; Powell v. McIntire, 5 Cir. 1969, 415 F.2d 333.

III.

There has been no cross appeal challenging the jury’s conclusion that the shipowner was negligent. The only issue before us is whether the trial court erroneously denied a new trial because the lack of evidence of contributory negligence compels a new trial.

The court is ordinarily reluctant to review the denial of a new trial on the ground that the verdict was against the great weight of the evidence. But “the absolute absence of evidence to support the jury’s verdict makes [refusal to grant a new trial] an error in law .” Indamer Corp. v. Crandon, 5 Cir. 1954, 217 F.2d 391, 393; see Boothe v. Holmes, 5 Cir. 1968, 399 F.2d 495. This is such a case.

It was the defendant’s burden to prove contributory negligence but no witnesses or evidence were introduced on this issue. The only witness other than the plaintiff was the bosun, who testified that he provided the plaintiff with the equipment used in their work and that it was the equipment ordinarily-used for this operation. The bosun had no complaints about the plaintiff’s work as a seaman and vouched that the plaintiff was “a worker.” Neither witness noticed any visible defects in the manila line.

The bridle and four wire lines attached to the pontoon were permanently affixed before the day of the accident by someone other than the plaintiff. On the day of the accident the bosun attached the winch to the bridle. The plaintiff neither selected, nor provided, nor rigged any of the equipment used.

Because of the absolute absence of direct evidence of contributory negligence, the defendant argues that the jury might have inferred that the plaintiff gave improper signals to the bosun, causing excessive strain on the breasting line. Such a conclusion by the jury would have been mere conjecture and speculation, and not inference because there is not a scintilla of evidence in the record tending to show negligence in giving signals to the bosun.

We have carefully reviewed the record and scrutinized the testimony of the two fact witnesses, the plaintiff and the bosun. There is no support in the record for the defendant’s theory that the plaintiff was contributorily negligent. No question was asked, nor was any answer given which even indirectly suggested error in signaling. Indeed, the very structure of the defense counsel’s statement of this issue in his summation admits its speculative nature. In these circumstances we conclude that there was no evidence which would have legally entitled the jury to conclude that the plaintiff’s negligence contributed to his own injury. We hold that as a matter of law the trial judge should have granted Angel Urti a new trial.

Reversed and remanded.

      . The defense counsel stated : “It was Mr. Urti who told the bosun how far to let that pontoon down, and it was Mr. Urti called upon [sic] to make sure that not too much weight was put on the pontoon, so the line would not break. It was Mr. Urti’s job, as we said, and the point is that we don’t really know at this state, after hearing this evidence, whether or not — maybe Mr. Urti failed to do his job.” The plaintiff’s counsel responded: “Had there been the other men on this job, Mr. Urti would not have had the necessity to give a signal. That would have been the other man’s job.”


author: HAYS, Circuit Judge:

text:
    NABISCO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 718, Docket 72-2073.
    United States Court of Appeals, Second Circuit.
    Argued May 4, 1973.
    Decided June 20, 1973.

      Wesley J. Fastiff, San Francisco, Cal. (Littler, Mendelson & Fastiff, San Francisco, Cal., on the brief), for petitioner.
    Charles N. Steele, Washington, D. C. (Peter G. Nash, Gen. Counsel, -John S. Irving, Deputy Gen. Counsel, Patrick. Hardin, Associate Gen. Counsel, Elliott Moore, Acting Asst. Gen. Counsel, Stanley R. Zirkin, Atty., N. L. R. B., on the brief), for respondent.
    Before FRIENDLY and HAYS, Circuit Judges, and JAMESON, District Judge

       Of the United States District Court for the District of Montana, sitting by designation.

   HAYS, Circuit Judge:

This is a petition for review of an order of the National Labor Relations Board declining to decide a contractual dispute pending submission of the dispute to the grievance procedure prescribed by the parties in their 'collective bargaining agreement while retaining jurisdiction to act in the event that the dispute is not resolved. We deny the petition for review.

The petitioner, Nabisco, Inc., is engaged in the manufacture, distribution and sale of cookies, crackers and related products. Nabisco has a warehouse and distribution facility at Emeryville, California, where it employs eleven drivers to deliver Nabisco’s bakery products to various retail stores, military installations, and other outlets in Alameda, Contra Costa, Sonoma, Mendocino, and Lake Counties in California. These drivers are represented by the Brotherhood of Teamsters & Auto Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America.

Besides delivering the bakery products, the driver is responsible for having the customer sign for the merchandise or for collecting payment in the form of cash or check. Approximately twenty per cent of Nabisco’s customers pay for their purchases at the time of delivery by either cash or check. Cash payments amount to from five to ten per cent of the total dollar value of all deliveries. The drivers for Nabisco collected such payments for over 20 years and the practice was recognized in the collective bargaining agreement between the Union and the Company. Article 47 of the agreement states:

“Section 3. Money Receipt

“Employees handling money shall account for and remit to the employer monies so collected at completion of the days’ work. The employer shall give the employee a receipt for the monies so paid in or the employee will not be held responsible for the money.”

In April, 1969. as a result of the increased number of robberies and assaults on delivery drivers ixi the Oakland and East Bay areas, the Oakland Police Department sent a letter to the Truck Drivers Local suggesting various precautions to avoid such crimes. Among these suggestions was a recommendation that the drivers not carry large sums of money. The Union sent copies of the letter to Nabisco and its competitors, and in subsequent meetings with Nabisco requested the company to adopt a no-cash collection policy. Two of Nabisco’s competitors with whom the Union had collective bargaining agreements agreed to adopt a no-cash policy. Nabisco refused to adopt the policy, contending that both parties were bound by the collective bargaining agreement which authorized the cash collection policy. Nabisco indicated that it would take certain other safety precautions, such as installing safes and wire mesh tailgates on the delivery trucks. Nabisco claimed these methods had proved successful in other areas and argued that to adopt a no-cash collection policy would put it at a substantial competitive disadvantage. The Union rejected the Company’s proposal.

On July 16, 1969 the Union informed Nabisco that the drivers would no longer collect cash. However in fact when company officials told the drivers that it would be a violation of the contract to refuse to collect, the drivers continued the practice of collecting. Subsequently, on September 11, at a meeting of the drivers of three companies, including Nabisco, the drivers voted to refuse to make any more cash collections. After this vote, and after another unrelated strike against Nabisco had ended, the drivers, with two exceptions, refused to collect cash.

On November 10, 1969, the Company filed a charge with the National Labor Relations Board claiming that the Union’s actions constituted a unilateral change in the contract in violation of Section 8(b)(3) of the National Labor Relations Act. Later the Company also charged that the Union in threatening the drivers violated Section 8(b)(2) and (l)(a) of the Act. The trial examiner found that the Union had violated the above sections of the Act. The National Labor Relations Board, without passing on the findings of the trial examiner, decided by a three to two vote to defer action on the Company’s claim until the parties had pursued the grievance procedures set out in the collective bargaining agreement.

The agreement provides that grievances affecting the relations of the employer and the union shall first be taken up between the local union and the employer involved. If they fail to resolve the grievance, it is to be reduced to writing by the grieving party and referred to a joint labor management committee. This committee is composed of an equal number of union and management representatives. If this committee decides the grievance by majority vote, the result is binding on the parties. If the committee deadlocks it can by majority vote submit the dispute to arbitration. If the committee is unable to reach a majority vote on arbitration the parties are free to use economic measures to resolve the dispute, including a strike or lockout.

The petitioner contends that the decision of the majority of the Board in the instant case to defer consideration of the unfair labor practice issues until the grievance procedure agreed upon by the parties has been utilized contravenes the policies of the National Labor Relations Act. We disagree.

Section 1 of the Act indicates the importance of “encouraging practices fundamental to the friendly adjustment of industrial disputes.” Section 203(d) also points to the desirability of dispute settlement through the procedure set up by the parties.

“Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement.”

The petitioner contends that the Board should defer only when the dispute settlement technique adopted by the parties involves mandatory arbitration. We do not read the policy underlying the Act, as expressed in the legislative history, so narrowly. As the Senate Report stated, the Board would

“develop ... a policy of entertaining under these provisions only such cases alleging violation of contract as cannot be settled by resort to the machinery established by the contract itself, voluntary arbitration or if necessary, by litigation in court. . . . Any other course would engulf the Board with a vast number of petty cases that could best be settled by other means. In short, the intention of the committee in this regard is that cases of contract violation be entertained on a highly selective basis, when it is demonstrated to the Board that alternative methods of settling the dispute have been exhausted or are not available.”

S.Rep.No.105; 80th Cong., 1st Sess. p. 23, I Legislative History of the Labor Management Relations Act of 1947, p. 429.

In furtherance of this legislative policy the Board has decided that it should not “assume the role of policing collective contracts between employers and labor organizations by attempting to decide whether disputes as to the meaning and administration of such contracts constitute unfair labor practices under the Act.” Consolidated Aircraft Corp., 47 NLRB 694, 706 (1943), enf’d in pertinent part, 141 F.2d 785 (9th Cir. 1944). The Board has “considerable discretion to . . . decline to exercise its authority . . . if to do so will serve the fundamental aims of the [National Labor Relations] Act.” Carey v. Westinghouse Electric Corp., 375 U.S. 261, 271, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1963), quoting International Harvester Co., 138 NLRB 923, 925-26. As the Supreme Court said in Smith v. Evening News Ass’n, 371 U.S. 195, 198 n. 6, 83 S.Ct. 267, 269, 9 L.Ed.2d 246 (1962) the Board has declined to act “where, in its judgment, federal labor policy would best be served by leaving the parties to other processes of the law.” We cannot say that the Board abused its discretion in the present case in reaching the conclusion that federal labor policy would be furthered by giving the grievance procedure a chance to work, while retaining jurisdiction to step in if it did not.

Petition denied.

      . This letter noted that more than 25 armed robberies of delivery vehicles had occurred in Oakland in the first three months of 1969.

      . One driver continued to collect cash for only two days and the other stopped the collection of cash on November 19.

      . We do not believe the Board’s previous decisions in Tulsa-Whisenhunt Funeral Homes, Inc., 195 N.L.R.B. No. 20 (1972), and District No. 10, Int’l Ass’n of Machinists, 200 N.L.R.B. 165 (1972), were in anyway inconsistent with the position it has taken liere. In both those eases, the grievance procedures were at an end unless the parties themselves were willing to enter into an ad hoc arrangement for arbitration of their disputes.


author: JAMES HUNTER, III, Circuit Judge.

text:
    UNITED STATES of America ex rel. Thomas Edward GIBSON, Appellant, v. Edward ZIEGELE, Superintendent of Leesburg Prison.
    No. 72-1883.
    United States Court of Appeals, Third Circuit.
    Argued April 5, 1973.
    Decided May 22, 1973.

      Donald G. Targan, Atlantic City, N. J., for appellant.
    Solomon Forman, Asst. County Prosecutor, County of Atlantic, Ernest M. Curtis, Atlantic City, N. J., for appellee.
    Before McLAUGHLIN, ROSENN and HUNTER, Circuit Judges.
   JAMES HUNTER, III, Circuit Judge.

Thomas Gibson was convicted after his second trial in the criminal courts of Atlantic County, New Jersey of manslaughter in the knifing death of his wife Bessie. Gibson’s first trial had ended in a mistrial over his objection when a key prosecution witness became ill during the trial and could not testify. After exhausting his state remedies, appellant filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey seeking his release from prison primarily on the grounds of double jeopardy. This petition was denied without a hearing and we affirm.

I

A summary of the events surrounding the declaration of mistrial is appropriate. On October 23, 1969, indictments were returned against Gibson charging him with murder and atrocious assault and battery. His first trial began on April 13, 1970, and the prosecution presented several witnesses including Sergeant Tomasello of the Pleasantville Police Department, Detective Horner of the Atlantic City Police Department, and Moses Murray, the defendant’s brother-in-law. Murray testified that there was an altercation between him and Gibson in the latter’s apartment, that Gibson stabbed him on the steps outside the apartment, and that after he was stabbed he saw the defendant go back into the apartment where Bessie Gibson was later found dead. Sergeant Tomasello testified that on the night of the alleged murder, Gibson came to the Pleasantville police station and stated that he wanted to file a complaint against his wife because she had assaulted him with a knife. Tomasello also said that the defendant told him that “he took the knife from her and gave it back to her, and that she wasn’t going to use the knife on him anymore . . .” Finally, Detective Horner’s testimony is relevant because he referred to Murray as the “accused” at one point, and, although he later said that this was a mistake, appellant contends that this so-called “Freudian slip” had “a tremendous impact on the course of the trial.” As a further indication that the state’s case was going poorly, appellant’s counsel says that the prosecutor approached him and offered to recommend a dismissal of the murder indictment in its entirety if Gibson would plead guilty to the charge of atrocious assault and battery against his wife. This offer was refused.

On the afternoon of April 15, 1970, the trial was recessed until the following morning because a key prosecution witness, Captain Wilson of the Atlantic City Police Department, was reported too ill to testify. Wilson had been in charge of the investigation, and he had obtained a signed confession from the defendant on the night of the murder which the prosecution wanted to enter into evidence. On the morning of April 16, 1970, the recess was extended until noon while the court attempted to ascertain the seriousness of Captain Wilson’s illness. At 2:05 p. m. the prosecutor moved for a mistrial on the ground that Captain Wilson had suffered a coronary insufficiency and would be unable to testify for several weeks. The defense objected, arguing that the absence of one witness was not enough to justify a mistrial and indicating that in any event Chief Mortimer Nappen could introduce the confession. Defense counsel then moved for a continuance to obtain a written doctor’s report and to allow him twenty-four hours to research the double jeopardy issue. The trial judge stated that he had talked by telephone with the attending physician, and was informed that Captain Wilson had contracted an intestinal grippe with acute coronary insufficiency and would be unable to testify for one to two weeks or more. After considerable discussion between the parties, the trial judge denied defendant’s motions and granted the prosecutor’s motion for a mistrial. Since Captain Wilson had been present on the first day of the trial, it is evident that he would have been available as a witness if he had not become ill.

II

Gibson’s primary contention on this appeal is that the Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), barred his second trial under a murder indictment. In connection with this allegation, appellant also asserts that he could not be tried twice for the same crime because the second trial afforded the prosecution a more favorable opportunity to convict him. We disagree with both of these arguments.

The Fifth Amendment’s prohibition against placing a defendant “twice in jeopardy” was designed to prevent repeated prosecutions for the same offense and what is often the concomitant imposition of heavy personal strain on the defendant. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed. 2d 543 (1971); Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Jeopardy attaches when a criminal trial commences before either a judge or jury, and in the present case Gibson was clearly put in jeopardy when his first trial began on April 13, 1970. The double jeopardy rule is not a rigid one, however, and there are situations where retrials are constitutionally permissible even though the first jury was discharged without giving any verdict and without the defendant’s consent. A common example of this is when a jury is discharged because it is unable to reach a verdict. Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892).

As was pointed out this term by the Supreme Court, Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), the landmark decision construing the Double Jeopardy Clause in the context of a declaration of mistrial over a defendant’s objection is United States v. Perez, 9 Wheat (22 U.S.) 579, 6 L.Ed. 165 (1824). In that case, the Court held that a defendant could be tried a second time after the judge, over the defendant’s objection, excused a jury which had reported that it could not agree upon either acquittal or conviction. In his opinion, Mr. Justice Story expressed the following thoughts about what standards should determine whether or not a defendant can be reprosecuted when his first trial ends in a mistrial without his consent:

“We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.” Id. at 580. (Emphasis added).

This language from Perez has formed the basis of all later Supreme Court decisions on double jeopardy in situations where the defendant did not consent to a mistrial, and it was recently quoted with approval in United States v. Jorn, supra 400 U.S. at 485-486, 91 S.Ct. at 557, after which Mr. Justice Harlan commented as follows:

“. . . [T]he Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.
“. . . [T]hat discretion must still be exercised; unquestionably an important factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process. Yet we cannot evolve rules based on the source of the particular problem giving rise to a question whether a mistrial should or should not be declared, because, even in circumstances where the problem reflects error on the part of one counsel or the other, the trial judge must still take care to assure himself that the situation warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal.
“. . . [I]n the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.”

Applying the standards of “manifest necessity” and “public justice” to the facts in this case, we believe that the trial judge did not abuse his discretion in declaring a mistrial over the defendant’s objection after he learned that a key prosecution witness, Captain Wilson, had become ill during the trial and could not testify. As Mr. Justice Black noted in Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), “a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.”

In affirming the denial of a writ of habeas corpus, we reject appellant’s assertion that the district court could not find from the record that Captain Wilson was a key prosecution witness. In support of this argument, appellant claims (a) that Captain Wilson’s testimony as to Gibson’s confession was unnecessary because it would merely have been cumulative to the testimony already given by Sergeant Tomasello and Moses Murray, and (b) that even if that confession constituted important additional information, it could have been entered into evidence by Chief - Nappen who was present when the confession was made. Neither of these contentions is persuasive.

With respect to appellant’s first point, we simply cannot agree that the signed confession taken by Captain Wilson was no more than cumulative to the testimony of Sergeant Tomasello and Moses Murray. In that confession Gibson allegedly said, “. . . . I went crazy and I took the knife away from her to defend myself ... I don’t know which one [the decedent or Murray] I cut first. I went blank then . . .” (emphasis added). While the testimony of Sergeant Tomasello and Moses Murray was significant, there can be no doubt that Gibson’s confession, if believed by a jury, would be the most important element in the prosecution’s case. Consequently, appellant’s first point is without merit.

Appellant’s second contention, that Captain Wilson was not a key witness because Chief Nappen could have introduced Gibson’s confession, is also unfounded. Chief Nappen testified that when he came into the interrogation room Captain Wilson told him that “he had already talked to [Gibson] and given him his [Miranda] rights” and that Gibson was ready to make a statement. Since Chief Nappen did not hear Captain Wilson advise Gibson of his rights, any testimony by Nappen about these Miranda warnings would have been hearsay and a verdict in favor of the prosecution could have been upset at will by Gibson. Under these circumstances, Captain Wilson’s testimony was essential and his sudden illness justified the declaration of a mistrial. See Illinois v. Somerville, supra. On this appeal, Gibson’s attorney states that appellant would have been willing to concede that he had received proper Miranda warnings. However, appellant’s counsel did not say this when he argued against the mistrial motion at the first trial, and we do not believe that the trial judge had an obligation to explore this unlikely possibility on his own initiative before declaring a mistrial.

III

Appellant’s next contention is that an ex parte conference between the trial judge and the prosecutor on the day that the mistrial was granted indicates that the trial judge discharged the jury in order to give the prosecution the advantage of a second trial. Appellant presents no evidence on this point, however, and in its absence we are unwilling to accept his inference of misconduct. Such an ex parte conference may have been ill-advised, but there is nothing on the record to show that it prejudiced appellant.

IV

Appellant’s final argument is that certain questions which he was repeatedly asked during cross-examination in his second trial were improper and violated his Fifth Amendment right against compulsory self-incrimination. Since this claim was not made before the district court, appellant is precluded from raising it here.

The judgment of the district court denying the writ of habeas corpus will be affirmed.