text:
    Jack NEAL, District Attorney, 8th Judicial District, Plaintiff-Appellee, v. Honorable Kearney BRIM, Judge, 8th Judicial District, Defendant-Appellant.
    No. 73-3769.
    United States Court of Appeals, Fifth Circuit.
    Jan. 9, 1975.

      Bill M. Glaspy, Mesquite, Tex., Whitley R. Sessions, Dallas, Tex., for defendant-appellant.
    Henry T. Skelton, Athens, Tex., for plaintiff-appellee.
    Before WISDOM and BELL, Circuit Judges, and BREWSTER, District Judge.
   WISDOM, Circuit Judge:

On September 10, 1973, Judge Kearney Brim, a Texas state district judge, summoned the lawyers at the bar of Sulphur Springs to his court room and announced that he would convene a court of inquiry on September 24 to determine whether the local district attorney, Jack Neal, had acted unlawfully in the conduct of his office. Previously, Judge Brim had criticized policy decisions made by the district attorney, and the two men had frequently disagreed about the administration of justice in the Eighth Judicial District. On September 20, Neal moved that Judge Brim recuse himself because of personal bias and that he ask the presiding justice of his court to appoint another judge to conduct the inquiry. Judge Brim denied the motion. Neal then sought a federal injunction. After a hearing on the merits, the federal court enjoined Judge Brim from presiding at any inquiry into Neal’s conduct of the district attorney’s office and ordered him to request the presiding judge of his court to appoint another judge to conduct the court of inquiry in his stead.

Judge Brim challenges the propriety of this injunction on several grounds. First, he alleges that the federal court does not have jurisdiction because Neal’s complaint does not state a constitutional claim. He also argues that no “special circumstances” justify the granting of an injunction and that there was insufficient evidence that Neal would be deprived of his constitutional rights because of Judge Brim’s personal bias. Although we find that the federal court has jurisdiction over Jack Neal’s claim, we need not reach the other, issues Judge Brim sets forth because we hold that the federal court should have abstained from deciding the federal constitutional issues until the Texas courts have determined Neal’s rights under Texas law.

I.

At the threshold, we must determine whether Jack Neal’s federal complaint states a cause of action under 42 U.S.C. § 1983 and whether the federal courts have jurisdiction under 28 U.S.C. § 1343. To state a claim under Section 1983, a plaintiff must allege some deprivation of federal constitutional or legal rights accomplished under color of state law. Neal alleges that he would be deprived of due process if Judge Brim is not disqualified from presiding at this court of inquiry, because an essential element of due process is the right to be heard by an impartial judge. Johnson v. Mississippi, 1971, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423. The trial court found, as a matter of fact, that “[t]he evidence indisputably discloses much animosity existing between” Brim and Neal and that Judge Brim “harbors much ill will, bias and prejudice against plaintiff as a result of personal and professional disagreements” in regard to Neal’s conduct of his office. In light of the ample evidence of animosity that was adduced at trial, we hold that the trial court’s findings of fact were not clearly erroneous. Fed.R.Civ.P. 52. Indeed, the record clearly shows that Judge Brim was prejudiced against Mr. Neal.

The question Judge Brim puts to us concerns the legal effect to be given this finding of animosity. The Supreme Court has said that due process is offended if a judge participates in a case when he is “so enmeshed in matters involving petitioner as to make it appropriate for another judge to sit”. Johnson v. Mississippi, 1971, 403 U.S. 212, 215-216, 91 S.Ct. 1778, 1780, 29 L.Ed.2d 423 (emphasis supplied). Judge Brim concedes that the tempestuous history of his relations with Jack Neal would preclude his sitting as a judge in any criminal trial in which Jack Neal is a defendant. He contends, however, that a court of inquiry is a purely investigatory proceeding wherein the district or county judge sits only in the role of magistrate and not as a judge. Therefore, Judge Brim argues, an unbiased judge may be desirable in this context, but such a judge is not required as a matter of due process. Whatever the final merit of Judge Brim's argument, we need say only that it is not helpful for purposes of establishing whether the federal courts have jurisdiction.

In determining whether the federal courts have jurisdiction over the civil rights claim stated in Jack Neal’s complaint, we must decide whether those allegations are wholly insubstantial or frivolous. See Bell v. Hood, 1946, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, cf. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350, p. 556. We need not decide the merits of the constitutional issues Neal raises in order to determine that they are not wholly insubstantial or frivolous. We hold, therefore, that the federal courts have jurisdiction in this case.

The next issue we face is whether this case is an appropriate one for application of the abstention principle.

II.

Although the federal courts have a duty to respect a party’s choice of a federal forum for the determination of federal issues, a federal court, in certain extraordinary and limited circumstances, may postpone its decision in order to avoid premature and perhaps unnecessary decision of a serious federal question or to avoid the hazard of unsettling some delicate balance in the area of state-federal relations. See Louisiana Power & Light Co. v. Thibodaux, 1959, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058. “Numerous decisions have sanctioned abstention from deciding cases involving a federal constitutional issue when a state court determination of state law might moot the issue or put the case in a different posture”. 360 U.S. 25, 32-33, 79 S.Ct. 1070, 1075, 3 L.Ed.2d 1058. Apart from the desirability of not reaching unnecessary federal questions, however, federal courts must be sensitive to a state’s special interest in expounding its own law and supervising its own judiciary. The other side of the coin is, of course, that abstention may lead to unnecessary delay, waste, and expense to litigants that may emasculate federal protection of federal rights. England v. Louisiana Medical Examiners, 1964, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440. See also Harrison v. N. A. A. C. P., 1959, 360 U.S. 167, 180, 79 S.Ct. 1025, 3 L.Ed.2d 1152. These countervailing considerations demonstrate that the abstention decision must be grounded in the circumstances of a particular case.

The case at bar turns on an unsettled question of Texas law that is important both because its solution may make any determination of Neal’s federal constitutional claim unnecessary and because it goes directly to the state’s interest in enforcing the integrity of the Texas judicial process. That issue of Texas law is whether Judge Brim’s personal relationship with Jack Neal should disqualify him from hearing the case and whether Neal has any effective means for enforcing such a disqualification if it exists. For his part, Neal maintains that Texas law recognizes only four grounds for disqualification of judges: (1) relationship by affinity with either party within the third degree; (2) relationship by consanguinity with either party within the third degree; (3) prior attorney-client relationship with either party; and (4) pecuniary interest in the case. He extracts these categories from various provisions of Texas law. See Vernon’s Ann.St.Tex.Const. art. V, § 11; Vernon’s Tex.Rev.Civ.Stat.Ann. art. 15 (1969); Vernon’s Ann.Tex.Code Crim.Proc. art. 30.-01 (1966). Moreover, he argues that these grounds are exclusive and state all the circumstances that forbid a judge to sit in a case. Williams v. State, 492 S.W.2d 522, 524 (Tex.Cr.App.1973).

Judge Brim, on the other hand, calls to our attention the Code of Judicial Conduct promulgated by the Supreme Court of Texas on July 25, 1974. Under this new Code of Judicial Conduct, which construes the same Texas law that-Neal cites as authority, the Supreme Court states that “[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to, instances where: (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding”. Tex.Code of Judicial Conduct, Canon 3, Section C(1) (emphasis added). Not only does the new code appear to extend the ground for disqualification of judges, but its expansive definition of “judge” would also seem to encompass judicial personnel serving as courts of inquiry as well as in more traditionally judicial roles:

Anyone, whether or not a lawyer, who is performing judicial functions, including an office such as a special master, court commissioner, or magistrate, is a judge for the purpose of this Code.

Tex.Code of Judicial Conduct, Section on Compliance with The Code. In arguing that his personal prejudice does not offend due process as guaranteed by the United States Constitution, Judge Brim has argued that a judge sitting as a court of inquiry under Texas law is serving the function of a magistrate. Thus he would seem to be covered by the language of the Texas Judicial Code.

The Supreme Court of Texas has statutory authority to issue extraordinary writs against any district judge. Tex.Rev.Civ.Stat.Ann. art. 1733. If Judge Brim is disqualified by Texas law from conducting this court of inquiry, the Texas Supreme Court has the authority to issue an extraordinary writ and require that a different judge conduct the investigation. At the same time, abstention by the federal courts would not require Neal to litigate his 'federal claims in the state courts; although he must inform the state courts regarding the nature of his federal claims, he may preserve them for federal adjudication if he desires to do so. England v. Louisiana Medical Examiners, 1964, 375 U.S. 411, 420, 84 S.Ct. 461, 11 L.Ed.2d 440. Given the state’s interest in maintaining the fairness and integrity of its own judicial process, we think that the Texas courts ought to have the first opportunity to resolve these important issues of state law.

We think that the appropriate procedure here is for the federal district court to dissolve its injunction. District Attorney Neal should then proceed in the Texas courts. If he is unable to secure relief there and reserves the federal issues for federal determination under the rule established in England, he will be able to renew his action in the district court.

The decision of the district court is reversed and remanded, subject to the limitations expressed in this opinion- and without prejudice to the plaintiff’s right to reassert his federal claims to relief should he be denied effective relief by the Texas courts.

      . Tex.Code Crim.Proc. art. 52.01 provides that:
      When a judge of any county or district court of this state, acting in his capacity as magistrate, has good cause to believe that an offense has been committed against the laws of this state, he may summon and examine any witness in relation thereto in accordance with the rules hereinafter provided.
      Where a district or county judge sits as a court of inquiry, the usual rules of evidence are suspended and other procedural safeguards are superseded. At the termination of the proceedings, the judge may issue a warrant for the arrest of any alleged wrongdoer.

      . At the proceeding on September 10, 1973, Judge Brim made two allegations relating to Neal’s misconduct in office. First, he accused Neal of failing to prepare indictments to present to grand juries. Second, he accused Neal of various conflicts of interest because of his having filed civil suits arising out of transactions that also constituted violations of the criminal law that he was under a duty to prosecute as district attorney.
      Apart from the allegations Judge Brim made at the meeting of the Sulphur Springs bar on September 10, there is strong evidence of animosity between the two men. Although Judge Brim was apparently instrumental in securing the District Attorney’s position for Jack Neal, the two men soon became enemies. District Attorney Neal maintains that Judge Brim, as a private attorney, attempted to use his personal influence to have him dismiss a criminal case in which Brim represented the defendant. Neal refused to dismiss the case. Thereafter, Brim was appointed district judge and allegedly began a campaign of harassment and intimidation of the district attorney. Judge Brim accused the chief probation officer, with whom Neal had developed a close working relationship, of misuse of funds and discharged him in open court. He intervened with the county commissioners to alter an arrangement that provided Neal with private office space because of inadequate office space in the courthouse. Judge Brim convened a grand jury on several occasions without notifying Mr. Neal. He ordered Neal’s arrest on one occasion when he held him in contempt for failure to prosecute a client’s civil case. Numerous other instances of animosity were presented at trial.

      . At no time has Neal challenged the constitutionality or propriety of a court of inquiry. Both in his motion in Judge Brim’s court and in his pleadings in federal court, he has asked only that another judge be named to conduct the court of inquiry. lie has maintained steadfastly that he is willing to submit to a court of inquiry as provided by Texas law so long as it is conducted by an impartial judge.

      . 42 U.S.C. § 1983 provides that:
      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 of 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.

      . In relevant part, 28 U.S.C. § 1343 provides that:
      The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
      (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States ;

      . Cf. Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971; M. Field, Abstention In Constitutional Cases: The Scope of The Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071 (1974); H. Friendly, Federal Jurisdiction: A General View 101-102 (1973); C. Wright, Handbook of the Law of Federal Courts § 52 (1970).

      . In arguing for abstention, Judge Brim seems to us to have taken a position that is at least partially inconsistent with his steadfast. refusal to recuse himself. The plain language of the Judicial Code applies to persons serving as magistrates and it requires them to disqualify themselves when their “impartiality might reasonably be questioned”. In his supplemental brief, Judge Brim asserts that “[a]s the Code of Judicial Conduct is an order of the Supreme Court, and is binding on Judge Kearney Brim, this court should not presume that Judge Kearney Brim would not follow the orders of the Supreme Court of Texas.” In view of this language of the Code of Judicial Conduct, we wonder why this controversy continues to exist: Judge Brim should have followed his own precepts.


source: Caselaw Access Project

author: HASTINGS, Senior Circuit Judge.

license: Public Domain

text:
    Rita MILLER, Administratrix of the Estate of Clell Miller, Deceased, Plaintiff-Appellant, v. The HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant-Appellee.
    No. 74-1268.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 30, 1974.
    Decided Nov. 15, 1974.

      Orville W. Nichols, Jr. and Charles W. Weaver, Knox, Ind., for plaintiff-appellant.
    Arthur A. May, South Bend, Ind., for defendant-appellee.
    Before HASTINGS, Senior Circuit Judge, and CUMMINGS and LAY, Circuit Judges.

       United States Circuit Judge Donald P. Lay of the United States Court of Appeals for the Eighth Circuit is sitting by designation.

   HASTINGS, Senior Circuit Judge.

Plaintiff Rita Miller, administratrix of the estate of Clell Miller, deceased, brought this action against defendant The Hartford Accident and Indemnity Company, seeking recovery of $60,000 for uninsured motorist benefits and $2,-000 accidental death benefits for the death of her husband, Clell Miller, pursuant to the terms and conditions of an automobile insurance policy issued by Hartford.

The action was originally filed in the Starke Circuit Court, in Starke County, Indiana. On motion of Hartford the case was transferred to the United States District Court for the Northern District of Indiana, South Bend Division. There being diversity jurisdiction pursuant to 28 U.S.C. § 1332, Indiana law governs. It is conceded that the Indiana courts have not decided the precise question presented here.

Clell Miller was killed on April 14, 1972, when operating his 1969 Oldsmobile on U. S. Highway #421 in Starke County, Indiana, as the result of a head-on collision with a 1964 Chevrolet owned and driven by Joseph F. Porter-field of Starke County. The proximate cause of the accident was the negligence of Porterfield. Miller left surviving his widow, Rita, and three minor dependent children, ages 12, 6 and 4 years. The resulting damage for the death of Miller would have exceeded the sum of $63,000. Porterfield was an uninsured motorist as defined by an Indiana statute, Ind.Code § 27-7-5-1, Ind.Ann.Stat. § 39-4310 (1973 Supp.), and by the subject insurance policy.

On the date of the accident and resulting death of Miller, Miller was insured by Hartford under one insurance policy covering three automobiles he owned, with a total premium of $164.44. In addition to the 1969 Oldsmobile Miller was driving at the time of the fatal accident, the other two vehicles covered were a 1965 Oldsmobile and a 1964 Chevrolet pick-up truck, all of which were separately listed in one of the declarations of the policy. In another section of the declarations entitled Coverages, Limits of Liability and Premiurns, Section I, there appears under Coverage C, for accidental death benefits, a limit of $1,00.0 for each named insured, and under Coverage D, for uninsured motorists, a limit of $20,000 for each accident. Section I coverages also include liability and medical expense. The premiums for all Section I coverages are shown to be the sum of $29.00 allocated to each of the three covered vehicles.

A similar table lists Section II coverages consisting of comprehensive and collision insurance with varying premiums allocated to each listed car. Finally, the total premium allocated for each car is indicated, all payable together in one total premium of $164.44. In short, we have one insurance policy covering three motor vehicles for one total premium, with separate allocations of premiums for each car.

In passing, it should be noted that only one accident is here involved, and Clell Miller is the only named insured. However, the policy provided under Coverage D — Uninsured Motorists, that the following are insureds: (a) the named insured and any relative, (b) any other person while occupying an insured automobile, (c) any person with respect to damages he is entitled to recover because of bodily injury to which this coverage applies sustained by an insured under (a) or (b) above. This provision further states that the insurance afforded under Coverage D — Uninsured Motorists applies separately to each insured, but that the inclusion herein of more than one insured shall not operate to increase the applicable limit of the company’s liability.

The policy contains no separability clause. Hartford has paid the $1,000 accidental death benefit for the named insured. It has tendered $20,000 for the one accident under the uninsured motorist coverage, which plaintiff rejected. Plaintiff claims that the coverages for the three automobiles should be aggregated to permit recovery of $3,000 for accidental death benefits and $60,000 under the uninsured motorist coverage. This action presents a classic case of “stacking.”

Following a pre-trial conference and the closing of issues, together with the filing of certain affidavits and admissions, plaintiff moved for summary judgment. This was based upon the absence of a dispute as to any material fact and the assertion that plaintiff was entitled to judgment as a matter of law.

Supported by a full and carefully considered memorandum opinion, the trial court denied plaintiff’s motion for summary judgment and dismissed the complaint with prejudice and without costs. The judgment also provided that should Hartford fail to pay plaintiff the sum of $20,000, once tendered and rejected, within thirty days, the case would be reinstated and judgment for $20,000 would be entered for plaintiff. Hartford timely paid $20,000 into the court for plaintiff, which plaintiff refused. The instant appeal resulted.

UNINSURED MOTORIST COVERAGE

It is uncontroverted that the Section I premium allocated to uninsured motorists under Coverage D is $6.00 annually for each of the three listed cars.

The pertinent part of Coverage D— Uninsured Motorists reads:

The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle;

Under the exclusions sections of the policy it is provided in relevant part that:

Regardless of the number of . . . (4) automobiles or trailers to which this policy applies, . . . (C) the limit for Coverage D — Uninsured Motorists stated in the declarations as applicable to “each accident” is the total limit of the company’s liability for all damages because of bodily injury sustained by one or more persons as the result of any one accident.

The applicable uninsured motorist statute in force in Indiana at the time the Hartford policy was issued provides:

39-4310. Motor vehicle liability— noninsured vehicle coverage — rejection in writing. — No automobile liability or motor vehicle liability policy or insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Acts 1947, Chapter 159, sec. 14 (§ 47-1057), as amended heretofore and hereafter, under policy provisions approved by the commissioner of insurance, for the protection of persons injured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.

The district court found no ambiguity in the Coverage D — Uninsured Motorists provisions of the policy. To the contrary, the court found the language to be clear and unambiguous and not subject to interpretation. We agree.

The court examined the policy in the light of the requirements of the Indiana uninsured motorist statute, and found no violation of the statute in the policy terms. We agree.

The court further expressed the view that the number of cars covered by the policy or the involvement of one or more of these cars in the collision was not a condition of the coverage. Miller would have been covered by the policy if he had been driving a borrowed car or even if he had been a pedestrian, as long as the sole cause of his injury was the act of an uninsured motorist. We agree. The court noted that it had decided this precise issue in the unreported case of Rozina v. United States Fidelity and Guaranty Company, Civil No. 69 H 257 (Sept. 15, 1970). There the court held that the language of the policy was clear and did not permit the stacking of the uninsured motorist coverage.

The court further rejected plaintiff’s claim that it was against public policy for the defendant to charge three separate premiums, one for each car insured, and that this was in violation of Indiana laws regulating insurance. We also find no merit in this contention under the facts in this case.

The crux of plaintiff’s contention on the uninsured motorists coverage is that where, as here, the insurer charges a full premium ($9.00 annually) on each car, it would be unconscionable not to allow recovery based on each premium, which would mean three times the amount of recovery stated in the declarations, or $60,000. Plaintiff places great reliance upon the case of Simpson v. State Farm Mutual Automobile Insurance Co., S.D.Ind., 318 F.Supp. 1152 (1970), Honorable S. Hugh Dillin, Judge, presiding. That case is distinguishable on its facts. In Simpson, the plaintiff Pamela Simpson, was a minor residing in the home of her mother, Elizabeth Simpson. Elizabeth was the owner of two automobiles and carried two separate insurance policies, one on each car, with uninsured motorists coverage in each policy, as required by statute. Pamela was a passenger in a third automobile, not owned by her mother, which collided with an uninsured vehicle. Both of the Simpson insurance policies contained an “excess” clause which provided in substance that if there were other insurance covering the loss, the company would pay only the excess over any other similar insurance available to such occupant. The policy on the car in which Pamela was riding had uninsured motorist coverage and that insurance carrier had previously paid its policy limit of $10,000 under such policy provision. It was stipulated that as a result of the accident Pamela received personal injuries in excess of $30,000. The court in Simpson was concerned with the validity of the “excess” clause contained in the mother’s two policies. It followed the majority rule and held, in substance, that since the Indiana statute required each automobile policy of insurance to contain uninsured motorist protection, “it would be unconscionable to permit insurers to collect a premium for a coverage which they are required by statute to provide, and then to avoid payment of a loss because of language of limitation devised by themselves [“excess” insurance].” 318 F.Supp. at 1156.

The Simpson court, by dicta, immediately following this holding, stated: “(In the present case defendant could have written one policy covering both of Mrs. Simpson’s automobiles, as is usual, and thus cut its uninsured motorist coverage in half, had it desired to do so. In collecting two uninsured motorist premiums it took the accompanying gamble.)” (Emphasis added.) Id. Judge Beamer here read this dicta to emphasize that Judge Dillin recognized the difference between the situation of having two separate policies of uninsured motorist coverage with separate premiums and having one policy covering three vehicles with separate premium allocations. We agree.

This result seems consistent with that of the Court of Appeals of Indiana, First District, in Stewart v. Jeffries, Ind.App., 309 N.E.2d 448 (1974), decided after Simpson and the trial of the instant case. In Jeffries, the court held that where a single policy of insurance covering several cars had both a limits of liability clause on uninsured motorist coverage and a separability clause applicable to that coverage, an ambiguity was created as to whether the limits of liability clause applied to each car or to the insurance contract as a whole. Resolving the ambiguity in favor of the insured, it held that the insured was entitled to aggregate the liability limits. In the case at bar, however, there was no separability clause affecting the uninsured motorist coverage and no ambiguity in the policy coverage, and the case logically may be distinguished. The district court’s use of the multiple premium factor does not violate the precedent established in Jeffries.

Finally, the “regardless” clause in the Limits of Liability section, to the effect that regardless of the number of automobiles to which the policy applies the limit for Coverage D — Uninsured Motorists stated in the declaration as applicable to “each accident” is limited to $20,000, appears clear and unambiguous and is valid and enforceable.

We have concluded that the district court appears to be on sound ground and in accord with the majority rule in finding in this case that plaintiff is limited in her recovery under uninsured motorists coverage in the subject policy to $20,000.

The uninsured motorist coverage question was treated at length by Judge Beamer in his unreported memorandum opinions in the instant case and in Rozina, supra. In a somewhat different context it was also considered by the same district court, Honorable Allen Sharp, Judge, presiding, in two recent cases now pending on appeal in our court. These are being contemporaneously decided, viz.: No. 74-1235, Trinity Universal Insurance Company v. Charles Capps, and No. 74-1279, Richard W. Schelfo v. Government Employees Insurance Company. In each of these two appeals, Judge Sharp, formerly a distinguished member of the Court of Appeals of Indiana, in a well considered memorandum opinion, agrees with the rationale of Judge Beamer in the instant appeal. Further, in Simpson, supra, Judge Dillin, in dicta, appears to follow the same course.

Based on our consideration of these cases, we have concluded that the highest courts in Indiana, if presented with this precise question, might reasonably be expected to reach a similar result.

ACCIDENTAL DEATH BENEFITS

Hartford’s subject policy provides for accidental death benefits in Coverage C. Plaintiff seeks to recover $1,000 under this provision for each car insured, or a total of $3,000. Hartford has previously paid $1,000 but declines to pay the additional $2,000. Coverage C reads:

Coverage C — Accidental Death Benefit : The company will pay the accidental death benefit stated in the declarations in the event of the death of the named insured which shall result directly and independently of all other causes from bodily injury (other than sickness or disease or death resulting therefrom), caused by accident and sustained by the named insured while occupying an automobile or through being struck by a highway vehicle, if death occurs within 90 days of the accident.

The limit of this coverage as stated in the declaration, Section I, is “$1,000 each named insured.” Clell Miller is the only “named insured” in the policy. He was killed accidentally while driving an automobile which was struck by another highway motor vehicle. This benefit has been paid.

The policy contains no separability clause. The declaration contains its own limitation clause. The language is clear and unambiguous. This clause needs no interpretation. No public policy is involved in this coverage. It is not required by statute or law. This is nothing more than simple accident insurance for the benefit of the named insured only. The insured voluntarily chose this coverage. He paid whatever premium was required. We agree with the trial court that “Plaintiff has been paid the $1,000.00 benefit provided by this policy and is entitled to no more.” For the foregoing reasons the judgment appealed from is in all respects affirmed.

Affirmed.

      . Other cases which have reached the same results are, inter alia: Allstate Insurance Co. v. Schmitka, 12 Cal.App.3d 59, 90 Cal.Rptr. 399 (1970); Doerpinghaus v. Allstate Insurance Co., 124 Ga.App. 627, 185 S.E.2d 615 (1971); Otto v. Allstate Insurance Co., 2 Ill.App.3d 58, 275 N.E.2d 766 (1971); Arminski v. United States Fidelity & Casualty Co., 23 Mich.App. 352, 178 N.W.2d 497 (1970); Allstate Insurance Co. v. McHugh, 124 N.J.Super. 105, 304 A.2d 777 (1973), aff’d, 126 N.J.Super. 458, 315 A.2d 423 (1974); Polland v. Allstate Insurance Co., 25 App.Div.2d 16, 266 N.Y.S.2d 286 (1966); Castle v. United Pacific Insurance Group, 252 Or. 44, 448 P.2d 357 (1968).
      In other jurisdictions are cases to the contrary which seem to represent a minority view and we do not choose to follow them.


text:
    TRINITY UNIVERSAL INSURANCE COMPANY, a Texas corporation, Plaintiff-Appellee, v. Charles CAPPS et al., Defendants-Appellants. Richard J. SCHELFO and Donna Schelfo, Plaintiffs-Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a foreign corporation incorporated under the laws of the District of Columbia, et al., Defendants-Appellees.
    Nos. 74-1235, 74-1279.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 30, 1974.
    Decided Nov. 15, 1974.

      Saul I. Ruinan, Hammond, Ind., for defendants-appellants Charles Capps et al.
    James E. Schreiner, George E. Bloom, Hammond, Ind., for plaintiff-appellee Trinity Universal Ins. Co.
    Edward J. Raskosky, George H. Kohl, Hammond, Ind., for plaintiffs-appellants Richard J. Schelfo and Donna Schelfo.
    William S. Spangler, David J. Hanson, Gary, Ind., for defendants-appellees Government Employees Ins. Co. et al.
    Before HASTINGS, Senior Circuit Judge, and CUMMINGS and LAY, Circuit Judges.

       United States Circuit Judge Donald P. Lay of the United States Court of Appeals for the Eighth Circuit is sitting by designation.

   HASTINGS, Senior Circuit Judge.

These two cases, as did Miller v. Hartford Accident and Indemnity Co., 7 Cir., 506 F.2d 11 (1974), also decided today, raise the same issue of whether an insurance policy covering several ears permits aggregation or “stacking” of the liability limits of each car to determine the total uninsured motorist recovery. Although separately briefed and argued, the cases are therefore consolidated for opinion. Jurisdiction is based on diversity of citizenship and the law of Indiana applies. Although the policy language and the facts are somewhat different in each case, the law to be applied here is the same as in Miller.

No. 74-1235

In No. 74-1235, Trinity Universal Insurance Company (Trinity) issued Charles Capps one insurance policy covering a 1971 Toyota and a 1962 Ford truck. On May 5, 1972, the Toyota was struck by an uninsured motorist and Capps’ wife and one child were killed and his two other children were injured.

For purposes of the uninsured motorist provision of the Trinity policy, the definition of an insured included not only the named insured but any relative or any other person occupying an insured automobile. The limits of liability section of the uninsured motorist coverage stated, inter alia, that “the limit of liability stated in the declarations as applicable to ‘each accident’ is the total limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.” In the declarations, the limits of liability listed under each car for uninsured motorist coverage were $15,000 for each person and $30,000 for each accident and $2,-000 for medical payments coverage. A separability clause in the policy applicable to the medical expenses coverage but inapplicable to the uninsured motorist coverage provides: “When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each * * *.”

Trinity admitted liability for $30,000 under the uninsured motorist coverage and paid that amount to the clerk of the district court for use of the insureds. Trinity paid $2,000 to Capps under the medical payments coverage. Upon Capps’ demand that Trinity was liable for up to $64,000, since the policy covered two cars, Trinity brought this action for declaratory judgment seeking a declaration that its uninsured motorist liability was limited to $30,000. The District Court for the Northern District of Indiana, the Honorable Allen Sharp, Judge, presiding, granted summary judgment for Trinity on both the uninsured motorist and medical expense coverages. This is an appeal from that judgment.

Subsequent to the decision in this case, the Indiana Court of Appeals in Jeffries v. Stewart, Ind.App., 309 N.E.2d 448 (1974), found that where a policy covering several cars had both a limits of liability clause on uninsured motorist coverage and a separability clause applicable to that coverage an ambiguity was created as to whether the limits of liability clause applied to each car or to the insurance contract as a whole. Resolving the ambiguity in favor of the insured, the court held that the insured was entitled to aggregate the liability limits. The Jeffries court stated, in dicta, that the ambiguity there could have been avoided if the separability clause by its express terms did not apply to the uninsured motorist provision or if the contract expressly restricted the limit of liability to the amounts stated in the declarations regardless of the number of cars covered. Ind.App., 309 N.E.2d at 453-454.

The insurance policy here differs from that in Jeffries in that the separability clause in the Trinity policy, by its explicit terms, is inapplicable to the uninsured motorist coverage. Under the authority of Jeffries and the decision of our court today in Miller, supra, we affirm the judgment of the district court that the limit of liability under the uninsured motorist coverage is $30,000. On appeal, Trinity has conceded that, in light of Jeffries, Capps is entitled to aggregate the liability limits for the two cars for medical services since the policy’s separability clause is applicable to that coverage. Accordingly, we reverse on the issue of medical services coverage and hold that appellant is entitled to recover from Trinity an additional $2,000. This cause is remanded to the district court with directions to enter judgment consistent with this opinion.

No. 74-1279

In No. 74-1279, Government Employees Insurance Company (GEICO) had issued to Richard Elston an automobile insurance policy covering three cars. Donna Schelfo was injured when the automobile, owned by Elston, in which she was a passenger was struck by an uninsured motorist. This action was brought by Donna Schelfo to recover damages for her injuries and by her father for medical expenditures and loss of services against the uninsured motorist and GEICO. The District Court for the Northern District of Indiana, the Honorable Allen Sharp, Judge, presiding, granted summary judgment for GEICO, holding that recovery was limited to $10,-000 under the policy. This is an appeal from that judgment.

The GEICO policy issued to Elston included within the definition of “insured,” for purposes of the uninsured motorist coverage, not only the named insured, but “any other person while occupying an insured automobile.” The policy declaration limited liability under uninsured motorist coverage to $10,-000 for each person and $20,000 for each accident. The policy states:

Regardless of the number of automobiles or trailers to which this policy applies, the limit of liability for uninsured motorists coverage stated in the declarations as applicable to “each person” is the limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by any one person as the result of any one accident * * *.

Under the policy the separability clause was explicitly inapplicable to this coverage.

In light of Jeffries, supra,, and our decision in Miller, supra,, we affirm.

No. 74-1235 — Affirmed in part;

reversed in part; remanded with directions.

No. 74-1279 — Affirmed.

      . The post-argument cited case of Mutual Hospital Insurance, Inc. v. Klapper, Ind., 312 N.E.2d 482 (1974), is not applicable since it dealt with a policy ambiguity and here there was none.


author: PER CURIAM:

text:
    Pedro GARCIA Plaintiff-Appellee, v. BAUER DREDGING COMPANY, INC., Defendant-Appellant.
    No. 74-2478
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 8, 1975.
    Mike A. Hatchell, Jack W. Flock, Tyler, Tex., Robert M. Contois, Jr., New Orleans, La., for defendant-appellant.
    Scott Baldwin, Marshall, Tex., James DeAnda, William R. Edwards, J. Robert McKissick, Corpus Christi, Tex., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

The appellee filed this suit and elected to proceed under Rule 9(h), F.R.C.P. After a bench trial the court entered judgment for the plaintiff-appellee in the amount of $163,154.00. The appellant contends that the district court improperly applied the general safety requirements promulgated by the Corps of Engineers in finding the dredge, John H. Shary, unseaworthy. In addition, the appellant contends that there was insufficient evidence to support the district court’s damage award, and that the appellee failed to mitigate his damages by undergoing corrective surgery.

The appellee suffered a severe back injury made the basis of this suit when he slipped in the dark on a wet catwalk constructed astride the dredge’s discharge line. The discharge line and catwalk, an appurtenance of the dredge, extended from the John H. Shary for over one thousand feet and was subject to the motion of the sea.. The catwalk consisted of two planks which when laid side by side were less than two feet wide. The walkway was interrupted at intervals by connecting sections and no handrails or rope extended over these gaps in the catwalk. No non-skid material was present on any part of the walkway. The district court found the vessel unseaworthy because of its failure to provide a non-skid surface on the catwalk and because of its failure to provide a handrail or safety line between the connecting sections of the catwalk where the appellee lost his footing.

Captain Clayton Spells, superintendent of the dredging operation on which the appellee was injured, testified that the appellant followed safety regulations promulgated by the Corps of Engineers. The pertinent section of these regulations which required non-slip "surfaces to be provided on catwalks, was read into evidence. Accordingly the pertinent provisions of these regulations were properly incorporated in the district court’s findings of fact and conclusions of law.

With respect to the damage award, the record also includes sufficient evidence to support the district court’s findings. In fact, the district court’s estimation of the present reasonable cash value of appellee’s future wages was arguably modest. The testimony of physicians for both parties indicated that surgery offered no reasonable certainty of success which would permit appellee to return to work. The findings of the district court are supported by the record evidence and are not clearly erroneous.

Affirmed.


text:
    Michel T. BLOUIN, Plaintiff-Appellant, v. LOYOLA UNIVERSITY and Fr. Bernard Tonnor et al., Defendants-Appellees.
    No. 74-3289
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit
    Jan. 8, 1975.

      Steven R. Plotkin, New Orleans, La., for plaintiff-appellant.
    Thomas A. Rayer, New Orleans, La., for defendants-appellees.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant brought suit for damages against Loyola University (Loyola) and certain of its officials, claiming that his First Amendment right of free speech and Fourteenth Amendment right of due process had been infringed when the defendant university refused to renew his teaching contract. The district court granted Loyola’s motion for summary judgment and dismissed the suit on the basis that Loyola was not clothed with state action and that the court had no jurisdiction under 28 U.S.C. § 1331.

Appellant alleges certain facts which he contends result in the requisite “state action.” He asserts that Loyola is the sole owner and operator of a radio station and a television station which are licensed under the Federal Communications Act of 1934 and are subject to its regulatory provisions. Additionally, appellant points out that Loyola, as a private, non-profit corporation, enjoys certain federal and state tax exemptions. He claims that it receives substantial federal and state monies in the form of grants, subsidies, student scholarships, and loans. Finally, appellant suggests that a finding of state action would be justified by the fact that Loyola is a corporation organized and incorporated under the laws of the State of Louisiana.

Loyola maintains that none of these factors, either individually or collectively, are of the nature, kind, or degree to support a finding of state action. We agree.

The licensing of an otherwise private entity by the government does not, of itself, require a finding of state action. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). Furthermore, the record does not disclose any “nexus” between the alleged unconstitutional activity and the purported federal and state government involvement. Accordingly the order of the district court dismissing the complaint is affirmed. See Wahba v. New York University, 492 F.2d 96 (2d Cir. 1974); Grafton v. Brooklyn Law School, 478 F.2d 1137 (2d Cir. 1973); Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971); Pendrell v. Chatham College, 370 F.Supp. 494 (W.D.Pa. 1974); Grossner v. Trustees of Columbia University, 287 F.Supp. 535 (S.D.N.Y.1968).

Judgment affirmed.


text:
    Donald Dee COLLIER, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-2474.
    United States Court of Appeals, Fifth Circuit.
    Jan. 9, 1975.
    Norman R. Bennett, Lubbock, Tex., (Court-appointed), for petitioner-appellant.
    John L. Hill, Atty. Gen., Joe B. Dibrell, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
   PER CURIAM:

On February 14, 1968, Donald Dee Collier was indicted for robbery by firearms, four other charges related to the same robbery and an unrelated offense of burglary. On November 15, 1968, he was tried and convicted for the offense of robbery by firearms. This conviction resulted in a sentence of 20 years which was imposed December 31, 1968. Acting through his retained attorney, Collier gave notice of appeal in open court on that date. On January 8, 1969, Collier was reindicted for carrying a prohibited weapon after being convicted of a felony, ' with two prior convictions ’ alleged for enhancement. This charge, without the enhancement allegations, was the same as one of the four related charges covered in the original indictment which still remained pending at this time. On January 13, 1969, Collier wrote to his attorney as follows:

I had arraignment Monday morning for the charge of ‘Assault with a prohibited weapon’. Judge Bean told me that it carries 2 to 5 years in prison, but that the D.A. had inhaneed the indictment.
I want that appeal dropped on the 20 year conviction for Robbery, I do not want to go through with the insanity again.
I also do not want to be brought to court and trialed as a habitual criminal.
I am just getting Blair Cherry [the prosecutor] [m] adder with the appeal, drop it try and get me a concurrent conviction and on the next chair Bus to prison, (emphasis as in letter)
Get over here I want to talk deal. Also I have written twice, and I am scared as hell, so get over here real soon.

On January 28, 1969, Collier entered pleas of guilty to two of the remaining five original charges and two consecutive 5-year sentences were imposed which were to commence after the completion of his 20-year sentence for robbery by firearms.

This is the second appearance in this court of Collier’s attempt to secure federal habeas corpus relief. See 488 F.2d 929 (5th Cir. 1974). On the prior appeal we vacated a dismissal of his first application for writ of habeas corpus and remanded the cause to the court for an evidentiary hearing on the issue of whether petitioner knowingly and intelligently waived his right to appeal.

After holding the required hearing, the district court found that Collier did knowingly and intelligently waive his right to appeal. At the proceedings on remand petitioner also urged that the prosecutor’s actions in having him indicted on the more serious enhanced charges denied him due process by chilling his right to appeal. The district court held that this due process contention was not properly before it because it had not been presented to any State forum.

Subsequent to the decision now on appeal, the Supreme Court of the United States decided Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), involving an assessment of the effect of prosecutorial actions after an appeal. Collier urges that his case is indistinguishable from Blackledge v. Perry, supra, and that under its command, the district court’s dismissal of his application for writ of habeas corpus is due to be reversed without regard to exhaustion since the Supreme Court did not require exhaustion in that case. Counsel for the State of Texas also urged this court at oral argument to proceed to the merits of this point rather than require exhaustion in the state courts. We decline to accept this joint invitation and affirm the district court’s dismissal of this issue. Tooten v. Shevin, 493 F.2d 173 (5th Cir. 1974). See also Harris v. Estelle, 487 F.2d 1293 (5th Cir. 1974).

Based upon the record developed at the evidentiary hearing upon remand from our prior mandate, we find that the district court’s determination that Collier knowingly and intelligently waived his right to appeal is not clearly erroneous and is due to be affirmed. Our review of this issue has been made without regard to any implicit or explicit conflict between the determination we affirm today and the questions raised by Blackledge. Since those issues were not considered by the district court, neither its opinion nor our affirmance here should be construed as intimating any view on the proper resolution of the question.

Affirmed.

      . The Supreme Court noted, however, that the Court of Appeals had found that “resort to the state courts would be futile, because the Supreme Court of North Carolina had consistently rejected the constitutional claims presented by Perry in his petition.” 417 U.S. at 24, 94 S.Ct. at 2100, 40 L.Ed.2d at 632.


author: SIMPSON, Circuit Judge: THORNBERRY, Circuit Judge

text:
    James BURSTON, Petitioner-Appellee, v. E. B. CALDWELL, Warden, Georgia State Prison, Respondent-Appellant.
    No. 73-3811.
    United States Court of Appeals, Fifth Circuit.
    Jan. 6, 1975.
    Thornberry, Circuit Judge, concurred in part and dissented in part, with opinion.

      Arthur K. Bolton, Atty. Gen., Daniel I. Macintyre, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant.
    Wayne S. Hyatt, Atlanta, Ga. (Court-appointed), for petitioner-appellee.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

The respondent State of Georgia prison official appeals from an order of the district court granting habeas corpus relief as to two of three convictions and sentences imposed on James Burston in 1935 under two indictments, the first charging robbery and assault with intent to rob, and the second charging armed robbery. The district court held that petitioner was denied his right to the effective assistance of counsel on the robbery count of the first indictment and as to the single armed robbery count of the second indictment. Our review of the record convinces us that the district judge was clearly erroneous in several conclusions he drew from the 1935 court records before him and erroneously applied 1974’s more advanced standards in assessing as incompetent appointed counsel’s performance in 1935. Accordingly, we reverse.

Two indictments were returned against petitioner in 1935. The first indictment, involving two incidents, both on March 23, 1935, charged petitioner and two co-defendants in Count One with robbery and in Count Two with assault with intent to rob. The second indictment charged petitioner and three co-defendants with armed robbery. Petitioner was convicted on both counts of the first indictment and received sentences of twelve to twenty years on Count One and three to four years on Count Two, to run consecutively. He was convicted of armed robbery under the second indictment and sentenced to serve twenty years following the sentences imposed under the first indictment.

Petitioner, after serving twenty months of his sentence, escaped and was not remitted to Georgia prison until 1971, thirty-four years later. Soon thereafter he filed a petition for habeas corpus in a Georgia state court. That court’s denial of relief was affirmed by the Supreme Court of Georgia. Burston v. Caldwell, 1972, 228 Ga. 795, 187 S.E.2d 900. Petitioner thereupon filed a habeas corpus petition in federal district court, which denied relief on the basis of the state court hearing. Because factual disputes had not been adequately resolved in the state court proceeding we reversed and remanded for a more complete hearing. Burston v. Caldwell, 5 Cir. 1973, 477 F.2d 996.

On remand, the district court conducted an extensive evidentiary hearing, as complete as the exigencies permitted. The lapse of time between trials and this hearing presented difficulties. Complete transcripts of the 1935 trials were not available. Witnesses, co-defendants, police officers, attorneys and one judge had died. The second judge was too ill to testify and, in any event, had no memory of these distant events. The testimony of the petitioner and of one court reporter, briefs of the evidence, and the certified court records of the indictments and sentences constituted the only evidence offered in support of and in opposition to petitioner’s claim.

Petitioner contended in the court below that he was not afforded counsel in the 1935 proceedings, but alternatively, if the court should decide from the evidence before it that he had been, then that such representation was constitutionally deficient. The district judge, relying solely on the documentary evidence before it, found that Burston was represented by counsel but that his attorneys rendered ineffective assistance as to two of the charges.

Our analysis begins with a brief reference to the district judge’s decision not to rely on petitioner’s testimony :

The only living witness to the trial (except one court reporter) is the petitioner himself who professes not to remember one trial at all and much of his testimony as to the other trial is contradictory. This Court’s findings therefore must be made on the basis of records which are now available. Appendix at 161 (footnote omitted).

We agree that petitioner’s testimony was either unsupported by other than his own bare assertions or contradicted by the record in too many instances to justify any reliance on it. The district court, of course, was not required to accept his testimony, even if uncontradicted. See Goodwin v. Smith, 5 Cir. 1971, 439 F.2d 1180, 1182; Tyler v. Beto, 5 Cir. 1968, 391 F.2d 993, cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574.

Although the district court based its decision solely upon the documentary evidence submitted, the “clearly erroneous” rule still applies. See Sicula Oceanica, S.A. v. Wilmar Marine Eng. & Sales Corp., 5 Cir. 1969, 413 F.2d 1332, 1333. But the respondent-appellant’s burden under Fed.R.Civ.P. 52(a) is less onerous in this situation. Id.

The Sicula Oceánica case teaches that it is our duty, when these eases are presented for review, to study the entire record thoroughly and to determine whether we are “left with the definite and firm conviction that a mistake' has been committed.” See United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766.

Volkswagen of America, Inc. v. Jahre, 5 Cir. 1973, 472 F.2d 557, 559.

The district court determined that petitioner was represented by counsel, a finding with ample support in the record. The pleadings show that attorneys Markeles and Lee appeared for petitioner in his first trial, and attorneys Charles and Harry Markeles appeared in the second trial. The briefs of evidence demonstrate this by showing trial counsel bringing out the inability of one victim to identify petitioner, instructing petitioner to take the witness stand, and objecting to statements on petitioner’s behalf. The sole issue remaining, then, is the adequacy of that representation.

The first trial, involving two separate incidents, was for robbery and assault with intent to rob. Each was committed by three males, one of whom was holding a medium calibre hand gun. Both occurred the same evening and within half a mile of each other. The victim of the assault identified Burston and his two co-defendants. The victim of the completed robbery identified only the two co-defendants and specifically stated that he could not tell whether Burston was the third participant. Burston’s counsel, despite this evidence developed at trial, did not move for a directed verdict of acquittal.

The district judge concluded that, because there was no eyewitness identification of Burston by the robbery victim, no evidence connected petitioner with the crime. Therefore, his attorneys should have moved for a directed verdict of acquittal and the failure to do so rendered their assistance constitutionally ineffective. However, the district court also found, and the record amply supports this determination, that as to the second count and the remainder of the trial of Count One, counsel did protect petitioner’s interests. Failure to move for a directed verdict was the sole ground for finding in petitioner’s favor as to this count.

The standard which this court has enunciated governing the conduct of counsel is

not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.

MacKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592, 599, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78. Only the record can speak today for the attorneys whose representation is challenged. Accordingly, fair consideration must be given to the substantive and procedural law in effect in Georgia in 1935, which may help to explain actions taken by counsel which would be unacceptable under today’s practices. We find that the tactical decisions made and actions taken by counsel in 1935, viewed in context, were reasonable and afforded petitioner that “reasonably effective assistance” to which he was entitled, conceding that such practices might well be unacceptable today because of changes in procedural and substantive law.

The district judge was in error on two grounds when he held that petitioner was denied the representation to which he was entitled on Count One of the first indictment. First, he neglected the evidence linking Burston to the crime. The record does not support his finding of “no evidence.” The congruence of time, place, modus operandi, and identification of all three co-defendants by one victim and identification of two by the other victim are strong circumstances evidencing the participation and guilt of Burston.

Second, the district judge failed to give due consideration to the 1935 status of Georgia law governing the granting of motions for directed verdicts of acquittal. Until 1965, there was no Georgia statutory authority for the granting of such motions in criminal cases. See Sutton v. State, 1967, 223 Ga. 313, 154 S.E.2d 578; but see Pritchard v. State, 1968, 224 Ga. 776, 164 S.E.2d 808 pointing out that Sutton was no longer controlling because the 1965 statutory authorization for the direction of verdicts in criminal cases was repealed by the Georgia legislature in the interim. See 110 Georgia Code Ann., Sec. 104, repealed 1966, 81A Georgia Code Ann., Sec. 201 (bb). . Early cases registered disapproval of granting such motions. See McCoy v. State, 1853, 15 Ga. 205. It was believed that questions of the weight of the evidence were exclusively for the jury’s consideration initially. See Manley v. State, 1928, 166 Ga. 563, 144 S.E. 170, rev’d on other grounds, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575; Williams v. State, 1898, 105 Ga. 814, 32 S.E. 129.

In the 1898 Williams case, supra, however, the Georgia court did acknowledge, albeit with disapproval, that the “practice” of the trial judge passing on the evidence before submitting the case to the jury was developing in the trial courts. Two intermediate appellate decisions indicated that a trial judge could grant such a motion where there was no evidence of guilt. See Bell v. State, 1915, 15 Ga.App. 718, 84 S.E. 150; Nalley v. State, 1912, 11 Ga.App. 15, 74 S.E. 567. It was never considered error, however, for a trial judge to deny a motion for a directed verdict. Sutton, supra; Douberly v. State, 1937, 184 Ga. 577, 192 S.E. 226; Manley, supra; Byrd v. State, 1928, 38 Ga.App. 682, 145 S.E. 478; Bell, supra.

The strong policy in favor of submitting the case to the jury if there was any evidence of guilt and the fact that it was never error for a trial court to deny such a motion lead us to conclude that the district judge’s finding of ineffective assistance of counsel on this ground was erroneous. The failure of petitioner’s counsel to move for a directed verdict did not render their assistance ineffective where there was possibly sufficient evidence of guilt to support a guilty verdict and no reason to believe that such a motion would be granted. Petitioner urges that, even if the motion would probably have been to no avail, it should have been made because it could have been made. We are unwilling to impose such a standard upon counsel. If failure to move for a directed verdict in the circumstances indicated here was error, we find it to be harmless beyond a reasonable doubt. As to this count, petitioner had the reasonably effective assistance to which he was entitled.

The district judge further found that four acts (or failures to act) of counsel at the second trial required a finding of ineffectiveness. We will address .each separately, but begin with a brief reference to the controlling legal principles. The Constitution guarantees petitioner that his counsel at the second trial rendered and was reasonably likely to render reasonably effective assistance. MacKenna v. Ellis, supra, 280 F.2d at 599. A defendant is, of course, not entitled to errorless counsel. We must bear in mind that trial counsel are dead; only the record speaks for their actions. Decisions which today might indicate ineffectiveness may be reasonable if attention is paid to the law of 1935. Further,

The petitioner in a habeas corpus proceeding has the burden of proof to establish sufficient facts to warrant a finding of denial of constitutional rights.

Tyler v. Beto, supra, 391 F.2d at 995. Petitioner did not meet this burden.

Petitioner’s second trial was for armed robbery. He was indicted with Clarence Armstrong, Lillian Askew, and Willie High. On the back of the indictment, however, two separate verdicts appear, both dated the same day: a verdict of guilty was entered as to Burston, Askew and High, signed by the foreman of the jury sitting on the case; above it, a not guilty verdict was entered as to Armstrong, signed by the same jury foreman. The brief of evidence indicates that Armstrong was not tried with the other three since there is no testimony bearing upon his guilt and he made no statement on his own behalf, as did each of the other three defendants. A remark by petitioner’s counsel referred to “the Clarence Armstrong case.”

Petitioner argued, and the district court so found, that Armstrong hired an attorney who severed his case, tried it first and obtained a not guilty verdict, and later that day represented Burston, Askew and High before the same jury.

Petitioner contended that the attorney subordinated his interests to those of Armstrong and that this conflict of interest required the setting aside of his conviction. The State of Georgia challenges this reading of the record as being without any evidentiary support. It argues that a more reasonable reading of the record suggests that the prosecution, realizing it could not produce enough evidence to convict Armstrong, decided not to put him on trial; and the foreman of the jury sitting on the case of the other three was directed to sign the not guilty verdict on the back of the indictment.

While the district judge did not make any finding as to the existence of a conflict of interest between Armstrong and petitioner, it appears to us that his reading of the record influenced his determination that the assistance of Burston’s counsel was ineffective.

The district judge was “clearly erroneous” in finding that a severance and two trials before the same jury took place. The evidence is insufficient to support this reading of the record. Nothing in the record supports a conclusion that Armstrong hired the attorney. The fact that attorney Markeles represented petitioner at his earlier trial suggests, rather, that Markeles appeared in the second case because of petitioner or co-defendant High, also a defendant in the earlier trial.

A more reasonable inference from a study of the record, as suggested by the respondent-appellant, is that Armstrong did not go to trial, and that the jury foreman signed the not guilty verdict at the direction of the trial judge. Both the guilty verdict as to Askew, Burston and Willie High and the not guilty Armstrong verdict are written out in longhand, apparently by different persons, as the handwriting differs considerably. Both verdicts are signed by the same name, “H. C. Yancey” in what appears to be the same handwriting. Prom the appearance of the body of the guilty verdict, Mr. Yancey was its scrivener.

Petitioner did not sustain his burden of proving that two trials before the same jury took place, with the attendant possibility that his attorney neglected his interests in favor of those of Armstrong.

The district judge’s second ground for reversing the armed robbery conviction was that a conflict of interest existed between petitioner and co-defendant Lillian Askew, so that counsel was unable to represent both effectively. A brief summary of the testimony presented at trial will aid in understanding our disagreement with the district court.

The state’s theory at trial was that Burston, Askew and High were joint participants in an armed robbery, during which the victim was stabbed. Lillian Askew admitted that she was present at the scene, but denied participating in the altercation which took place. Her testimony was to the effect that no robbery took place. She claimed that she was a prostitute who, after drinking with the victim at a dance, had been paid to accompany him. As they walked down a street, petitioner Burston ran up behind the victim and cut him with a knife.

Burston testified that he, the victim, and Askew had been drinking together at a dance, that after they left the dance together the victim accused him of stealing a quarter, and stuck him with an icepick, whereupon he stabbed the victim in self-defense. He stated that no robbery could have occurred because the victim had told him he had spent all except $1.-00 which he gave to Lillian Askew to sleep with him.

The testimony of the victim strongly challenged that of Askew and Burston. He identified all three defendants as participants and insisted that he had in fact been robbed. He denied being in the company of any of the defendants earlier in the evening, although he had seen them at a bar.

Finally, a detective testified that petitioner approached him prior to trial and “said he wanted to plead guilty for all of it, and take it on himself.”

Petitioner contended below, and the district court agreed, that he was deprived of his constitutional right to the effective assistance of counsel because of a conflict of interest between him and co-defendant Askew, who tried to exculpate herself while implicating him. In context, the record does not support a finding of a divergence in interest between Askew and Burston and we reject the district judge’s finding to this effect. The district judge failed to address the implications of Askew's statement in the light of 1935 Georgia law.

Under 1935 Georgia law, armed robbery was a felony which carried the possibility of the death penalty. Ga.Code Ann. Sec. 26-1701. Both Askew and Burston, therefore, were concerned with refuting the victim’s testimony that a robbery had occurred. Burston, in addition, needed to establish that the stabbing, which was admitted, was an act of self-defense.

Both denied that a robbery occurred. It was not part of Askew’s defense to blame Burston. She needed only to refute proof of her involvement and petitioner’s testimony corroborated hers on this issue. Her testimony, while implicating petitioner in a misdemeanor crime, exonerated him from the capital felony for which he had been indicted. In addition to the testimony of the victim implicating Burston in a robbery, a police detective testified that Burston confessed earlier that day and wanted to plead guilty to “all of it”. In such circumstances, it was reasonable trial strategy to focus the defense on reducing the crime charged from a capital felony to a misdemeanor. Had separate counsel been appointed, it is extremely likely that Burston’s attorney would have called Askew as a witness to testify in Burston’s defense.

The situation in the present case is distinguishable from those in White v. United States, 5 Cir. 1968, 396 F.2d 822 and Sawyer v. Brough, 4 Cir. 1966, 358 F.2d 70, relied on by the district court, where classic conflicts of interest existed. In Sawyer, petitioner and a co-defendant were convicted of robbery. Sawyer denied his guilt. A confession of the co-defendant was admitted into evidence, however, which indirectly identified and incriminated Sawyer. We agree with the Fourth Circuit that

An obvious divergence of interest exists between a defendant who denied his guilt and a codefendant who not only confesses his own complicity but also accuses the other of participation in the crime. ... In such a situation the parties are placed in adversary and combative positions.

358 F.2d at 73. In White, one co-defendant made a statement exculpating himself while implicating the other. In our case however, both defendants exonerated Askew and both were concerned with proving that no money had been-taken from the victim. Askew’s testimony, exonerating petitioner of a capital offense, was crucial even though it implicated him in a misdemeanor charge. In these circumstances, petitioner has failed to establish that any conflict of interest existed or that he suffered any prejudice by virtue of the joint representation.

During the trial, a police officer testified that he went to Burston’s house where he found bloody pants and a bloody knife. He did not testify that he had a search warrant and the facts did not indicate circumstances which would excuse the obtaining of a warrant. The district judge’s third ground for finding inadequate representation was based on counsel’s failure to object to the police officer’s testimony because no basis for establishing the. legality of the search and seizure was laid.

In so holding, the district judge erroneously assessed counsel’s performance under modern standards. He overlooked the fact that in 1935 there was no federal exclusionary rule binding on the states which would require a court to keep out evidence even if illegally seized. Neither would Georgia state law have authorized exclusion in such a situation. See McIntyre v. State, 1940, 190 Ga. 872, 11 S.E.2d 5, cert. denied, 312 U.S. 695, 61 S.Ct. 732, 85 L.Ed. 1130; Calhoun v. State, 1916, 144 Ga. 679, 87 S.E. 893. The only situation in which Georgia courts would exclude evidence seized illegally was if the defendant had been forced to produce it himself. Herndon v. State, 1934, 178 Ga. 832, 174 S.E. 597, rehearing denied, 179 Ga. 597, 176 S.E. 620, appeal dismissed, 295 U.S. 441, 55 S.Ct. 794, 79 L.Ed. 530. It follows that counsel did not render ineffective assistance by reason of his failure to object to testimony concerning the search and seizure involved. There was simply no basis in 1935 under state or federal decisions to believe that such a motion had the remotest Chance of success. Rather, counsel had every reason to believe that offering such a motion would be no more than a futile gesture.

The final ground asserted by the district judge for finding counsel’s representation ineffective was his waiver of authentication and proof of the chain of custody of the knife used in the stabbing. While on the stand, the police officer indicated that the knife, not then in his possession, was at his home. Later in the trial, petitioner’s counsel waived recall of the police officer and identification of the knife, consenting to its introduction into evidence. The district judge felt that this cooperation in conjunction with the failure to challenge the search and seizure reflected a failure by counsel to protect petitioner’s interests, of sufficient import to warrant setting aside Burston’s conviction.

Because a challenge to the search and seizure would have been futile, no purpose would have been served by forcing the prosecution to go through the steps for authentication. Several important factors influencing trial counsel were apparently overlooked by the court below. Burston admitted stabbing the victim and does not, even now, allege that the knife was not in fact his. The introduction of the knife was not a crucial or even a necessary part of the prosecution’s proof. We find no indication from the record that the police officer was unavailable or was unable to properly identify it. In such circumstances, it was reasonable, and perhaps better trial strategy, for counsel to avoid drawing additional attention to the knife by insisting that the state go through the formal steps of proof. Counsel’s failure to insist on proof of the chain of custody of the knife was no breach of counsel’s duty to his client to render effective assistance.

In sum, we find adequate support in the record for the finding below that petitioner was represented by counsel in the 1935 proceedings. We do not, however, find support in the record for the finding that counsels’ assistance was ineffective when considered in conjunction with procedural and substantive law as it existed in Georgia in 1935.

Reversed.

THORNBERRY, Circuit Judge

(concurring and dissenting):

I concur in the majority’s discussion and conclusions concerning appellee’s first trial. I cannot agree, however, that Burston’s attorney provided him reasonably effective assistance at his second trial. I do not believe that the district judge clearly erred in finding that Armstrong, represented by the same lawyer who represented Burston, was tried and found not guilty of the crime of which the same jury later that day found Burston guilty. The majority’s argument on this point appears to be that Armstrong was granted something akin to a directed verdict of acquittal ; this appears unlikely in light of Georgia law in 1935, as so ably elucidated in the majority opinion. Likewise, I remain unconvinced that Askew’s testimony was intended to exculpate rather than inculpate Burston. Accordingly, I would affirm the district judge as to appellee’s second trial.

      . John Wilson, James Burston and Willie High were charged in Count One with robbing William Tucker of clothes and $2.25. Count Two charged these three persons with assault upon A. K. Stovall with intent to rob him.

      . Clarence Armstrong, Lillian Askew, James Burston and Willie High were accused of armed robbery of Odel Walker of $4.30 on April 1, 1935.

      . According to the testimony of the court reporter who transcribed at one of petitioner’s trials, full transcripts were not prepared in Georgia in 1935 unless specifically requested by an attorney. As an economy measure, attorneys would ordinarily have the court reporter prepare a brief of evidence, which is an abstract of the testimony written in narrative form, which was used in the event of appeal. This saved the cost of typing up the transcript in question and answer form and the attorney’s time in preparing a narrative from the transcript.

      . In his petition before the district court, Burston alleged that lie was not formally arraigned, there was no preliminary hearing and charges against him were never explained, the grand and traverse juries were inherently discriminatory, he was not advised of his right to counsel and was denied the effective assistance of counsel, he was denied the right to trial by jury and of his right to have witnesses appear in his defense, and he was not advised of his right to appeal. His testimony, which comprised the only evidence he offered to support his claims, narrowed his challenge to that of lack of counsel or denial of the effective assistance of counsel.
      Petitioner’s seemingly contradictory stance —that he was without counsel but, in the alternative, his counsel was ineffective — is a recognition that attorneys did in fact appear in court. The question before the court below was whether these attorneys appeared as petitioner’s counsel or, as petitioner contended, on behalf of his co-defendants only.

      . The district judge believed that diaries Markeles, the attorney who appeared for petitioner in both proceedings, was tire lead attorney. Accordingly, we will refer to counsel in tile singular although two attorneys appear of record.

      . Appended are facsimiles of the two verdicts:

      . Mapp, making the exclusionary rule applicable to the states under the Fourteenth Amendment due process clause was decided years later. Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Mapp is not to be given retrospective application. Linkletter v. Walker, 1965, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601.