author: DYER, Circuit Judge: GODBOLD, Circuit Judge PER CURIAM: GODBOLD, Circuit Judge

text:
    James K. BETTES, Plaintiff-Appellant, v. STONEWALL INSURANCE COMPANY, Defendant-Appellee.
    No. 72-1794.
    United States Court of Appeals, Fifth Circuit.
    April 17, 1973.
    Rehearing and Rehearing En Banc Denied June 12, 1973.
    John E. Collins, Oscar H. Mauzy, Dallas, Tex., for plaintiff-appellant.
    Stanley M. Kaufman, Royal H. Brin, Jr., Dallas, Tex., for defendant-appellee.
    Before GODBOLD, DYER and CLARK, Circuit Judges.
   DYER, Circuit Judge:

On May 3, 1968, two days after his release from a hospital where he was treated for hemianesthesia, Bettes, an air line pilot, applied to Stonewall Insurance Company for two $25,000 occupational disability insurance policies, which were subsequently issued with effective dates of July 1, 1968. On July 25, 1968, Bettes suffered a cerebral vascular accident, became permanently disabled as a result, and shortly thereafter filed a claim under each policy. Stonewall refused payment pending an investigation of Bettes’ insurance application in which he failed to mention his recent hospitalization, his family history of heart trouble, and his personal history of elevated blood pressure. Unable to obtain payment, Bettes brought this diversity action on the policies. After an initial judgment for Bettes based on the jury’s answers to a series of special interrogatories, the district court set aside its judgment and entered final judgment for Stonewall. Bettes appeals and raises three questions for review. We conclude, however, that the district court ruled correctly on each issue and, therefore, we affirm.

The primary issue at the trial centered on the alleged misrepresentations that Bettes made in his insurance applications, and whether they constituted a defense for Stonewall. After a trial devoted largely to the development of the substantive elements of the defense, Bettes belatedly raised another issue which continues as the most important point on appeal — whether Stonewall should be entitled to the misrepresentation defense at all because of its alleged failure to show compliance with Article 21.17, Insurance Code, V.A.T.S. Article 21.17 provides that, before an insurance company can rely on a misrepresentation defense, it must show on trial that within 90 days of learning of the falsity of any such representation it notified the insured that it refused to be bound by the policy.

A. Amendment of Pre-Trial Order

Bettes first argues that the district court erred in refusing his request to modify the pre-trial order so that it would include, as a contested issue of law, compliance with Article 21.17. We disagree. The request was an eleventh-hour appeal to the district court made only after other trial tactics had failed. The pleadings had been completed, the discovery concluded, the pre-trial order entered, the evidence taken, the charge conference held, the arguments to the jury finished, the jury charged, and the objections to the charge made before Bettes sought this modification of the pre-trial order to show his intent to rely on Article 21.17.

A pre-trial order, while not to be lightly set aside, should be modified if that action is necessary to prevent manifest injustice. Sherman v. United States, 5 Cir. 1972, 462 F.2d 577; Central Distributors, Inc. v. M. E. T., Inc., 5 Cir. 1968, 403 F.2d 943; Laird v. Air Carrier Engine Service, Inc., 5 Cir. 1959, 263 F.2d 948; Fed.R.Civ.P. 16. See also Henry v. Commissioner of Internal Revenue, 5 Cir. 1966, 362 F.2d 640. The trial judge is vested with broad discretion in considering when a pre-trial order should be amended and we conclude that there was no abuse of that discretion here.

Bettes sought to amend the pre-trial order to include compliance with Article 21.17, not as a contested issue of fact as an element of Stonewall’s defense, but as a contested issue of law. It is clear, however, that notice only arguably became a matter of law because of his own delay (until all the evidence had been taken) in apprising the district court of his intentions. If his requested amendment had been timely presented to the district court, evidence could have been adduced, which in turn would have made notice a question of fact for the jury and not a matter of law. Similarly, Bettes can glean no solace from the fact that the burden of proof on notice would have been on Stonewall if the issue had been contested. Although Stonewall was aware of the existence of Article 21.17, it was entitled to be surprised, as was the district court, when Bettes sought to inject it as a legal issue minutes before the case finally went to the jury. Any detriment to Bettes caused by denying the proposed amendment to the pre-trial order was occasioned by his own actions.

We see nothing in our holding that in any way conflicts with this court’s recent pronouncement in Pacific Indemnity Co. v. Broward County, 5 Cir. 1972, 465 F.2d 99. In Pacific Indemnity the key issue — whether the county had been notified of a claim against it within one year of the claim becoming due— had been fully framed in the pleadings, thereby putting all parties on notice that a substantial disagreement of fact existed. When the pre-trial order then failed to include notice as an issue, the onus for this omission was placed on the party with the burden of proof on notice and Broward County was granted a judgment N.O.V. See 465 F.2d at 103-104. The facts in this case are readily distinguishable. Bettes was promptly put on notice by Stonewall’s answer that the insurance company intended to rely on a misrepresentation defense, but at no time subsequently was the issue of notice as an element of that defense clearly drawn. In such a case, even with the ultimate burden of proof potentially on his opponent, a litigant cannot strategically lie behind the log until after the trial and receipt of evidence, argument, and charge to the jury before raising an issue not found in the pleadings nor included in the pre-trial order and then raise it when it is too late for his opponent to do anything about it. The manifest prejudice of such tactics would make a shambles of the efficacy of pre-trial orders and a fair trial.

B. Notice Tried by Consent

Bettes’ second argument is that the district court erred in entering judgment for Stonewall after the insurance company failed to show compliance with Article 21.17, because he maintains that the issue of notice was tried by consent. Bettes claims that certain evidence offered by him was so particularly and uniquely appropriate to the issue of notice that Stonewall’s lack of objection constituted implied consent for the issue to be tried, despite its omission from the pre-trial order.

At no time during the trial was a request made for an amendment of the pleadings to conform to the evidence, but Bettes correctly notes that this is not necessarily fatal to his argument. Fed.R.Civ.P. 15(b). Instead, the death knell for this argument results from a careful reading of the record which discloses no evidence that Stonewall gave any consent — express, implied, or otherwise — to trying this issue. Bettes’ evidence did not pertain solely to the issue of notice, but had general relevance to the entire defense of misrepresentation. See Wirtz v. Savannah Bank & Trust Co., 5 Cir. 1966, 362 F.2d 857; C. Wright & A. Miller, Federal Practice and Procedure § 1493 at 466 (1971). Furthermore, for an issue allegedly tried by consent, mention of it was conspicuously absent at the charge conference, in the arguments of both counsel to the jury, and in the charge to the jury. As such, without warning that this evidence was being offered to prove a new issue, its admission without objection cannot be said to be “implied consent” within the meaning of Fed.R.Civ.P. 15(b).

C. Meaning of Article 21.16

Bettes’ final argument is addressed not to Article 21.17, but to Article 21.16, Insurance Code, V.A.T.S. Article 21.16 provides that for an insurance company to assert successfully a misrepresentation defense, it must show on trial,

that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable, and whether it was material and so contributed shall be a question of fact to be determined by the court or jury trying such case, (emphasis added).

From this language and from a dictum in Trinity Reserve Life Insurance Co. v. Hicks, Texas Civ.App.1956, 297 S.W.2d 345, Bettes asserts that a misrepresentation must be material and must contribute to the loss before that misrepresentation constitutes a defense to a claim under a policy. The district court’s final judgment rejected this argument and held that it is sufficient if the misrepresentation either is material to the risk or contributes to the loss. We agree with that disposition.

Our court has faced this precise question once in the past in Fireman’s Fund Insurance Co. v. Wilburn Boat Co., 5 Cir. 1962, 300 F.2d 631, cert. denied, 370 U.S. 925, 82 S.Ct. 1562, 8 L.Ed.2d 505. We there expressed our view that the disjunctive construction was the preferred alternative. See also Occidental Life Insurance Co. v. Bob LeRoy’s Inc., 5 Cir. 1969, 413 F.2d 819, cert. denied, 396 U.S. 939, 90 S.Ct. 373, 24 L.Ed.2d 241. This disjunctive construction has also found consistent, albeit implicit, support in the decisions of the Texas appellate courts. See, e. g., Harrington v. Aetna Casualty & Surety Co., Texas Civ.App.1972, 489 S.W.2d 171; Odom v. Insurance Co., Texas Civ.App.1969, 441 S.W.2d 584, aff’d, Texas 1970, 455 S.W.2d 195; Southern Life & Health Insurance Co. v. Grafton, Texas Civ.App.1967, 414 S.W.2d 214.

Finding no error in any of the questions presented for review, we affirm.

Affirmed.

GODBOLD, Circuit Judge

(dissenting) :

The plaintiff is entitled to a reversal because of the refusal of the trial court to amend the pretrial order. But he has lost his appeal because this court, like the District Court, holds him responsible for a default which was not his but defendant’s.

The major defense of the company was misrepresentation in the application for the policies. As its First, Second and Fourth affirmative defenses the company pleaded that plaintiff had intentionally made material false statements, representations and warranties in his application which were intended to be relied upon and in fact were relied upon by the insurer. The crux of the majority opinion is that this pleading of a misrepresentation defense in general terms put upon plaintiff the obligation to call to the attention of the court the provisions of Art. 21.17, Texas Ins.Code, which sets out the conditions under which the misrepresentation defense is valid, and the obligation to define as an issue in the pretrial order the insurer’s compliance with that section. Having failed timely to do so, the plaintiff’s belated injection of that issue justified the court in refusing to amend the pretrial order. In short, “[a]ny detriment to Bettes . . . was occasioned by his own actions.” That conclusion conflicts with the Federal Rules of Civil Procedure and with the Texas law which we are bound to follow in this case. The party obligated to raise the issue of compliance with Art. 21.17 was not plaintiff but defendant.

1. The defendant’s duty to plead and prove compliance with Art. 21.17.

Fed.R.Civ.P. 8(c) requires the defendant to plead named affirmative defenses “and any other matter constituting an avoidance or affirmative defense.” Rule 8(c) is concerned with “the pleading of matter that is not within the claimant’s prima facie case.” 2A Moore’s Federal Practice, ¶ 8.27[2], p. 1842. What matters are part of the plaintiff’s prima facie case and what matters are for defendant to assume by way of affirmative defense is a question of substantive law which, in a diversity case, is, under Erie, controlled by the law of the state. 2A Moore, Federal Practice, ¶ 8.27 [2], at 1846-48 (2d ed. 1972); cf. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Railway Express Agency v. Mallory, 168 F.2d 426 (CA5), cert. denied, 335 U.S. 824, 69 S.Ct. 48, 93 L.Ed. 378 (1948), was an appeal by defendant from a judgment against it in a personal injury case. This court declined to consider the applicability of the Mississippi comparative negligence statute because, under Missisippi law, a defendant may not avail himself of that statute unless he pleads contributory negligence, which, under Mississippi law is an affirmative defense, and requests an instruction on comparative negligence. The defendant having failed to affirmatively plead contributory negligence and to request instructions on the Mississippi statute, we concluded that we were powerless to remedy the defect. In footnote 2 the opinion refers to Rule 8.

By its statute, Art. 21.17, Texas imposes specific conditions upon the existence of a defense of misrepresentation in the application.

Notice of Misrepresentations.

In all suits brought upon insurance contracts or policies hereafter issued or contracted for in this State, no defense based upon misrepresentations made in the applications for, or in obtaining or securing the said contract, shall be valid, unless the defendant shall show on the trial that, within a reasonable time after discovering the falsity of the representations so made, it gave notice to the assured, if living, or, if dead, to the owners or beneficiaries of said contract, that it refused to be bound by the contract or policy; provided, that ninety days shall be a reasonable time; provided, also, that this article shall not be construed as to render available as a defense any immaterial misrepresentation, nor to in any wise modify or affect Article 21.16 of this code. Acts 1951, 52nd Leg., ch. 491.

Tex.Ins.Code Ann. Art. 21.17 (emphasis added). With as much clarity as the English language allows, this establishes the conditions upon which the insurer has a valid misrepresentation defense— “no defense . . . shall be valid, unless the defendant shall show on the trial” the required notice to the insured.

The Texas cases leave no doubt that unless the insurer alleges and proves Art. 21.17 notice not to be bound by the policy, the defense of misrepresentation is not available. In Milwaukee Mechanics’ Ins. Co. v. Weathered, 234 S.W. 568 (Tex.Civ.App.1921), the court held:

The fact that the policy to secure Langley was obtained by material misrepresentation will not avail as a defense in this case, for the reason that Revised Statutes, art. 4948 [a predecessor to Art. 21.17], provides that such a defense can be made available only where the insurer gives notice to the insured, within a reasonable time upon receiving notice of the loss, that he will defend on the ground that the same was obtained by fraud. No such defense was pleaded in this ease, and no notice was given by appellant to appellee that it would rely upon such defense. Such being the case, appellee was entitled to recover herein, and the court did not err in rendering judgment in his favor.

Id. at 569. In Southern Sur. Co. v. Citizens’ State Bank, 212 S.W. 556 (Tex.Civ. App.1919), the court held that failure formally to plead timely notice barred the misrepresentation defense:

[I]t was neither averred nor shown that the [insured] was ever notified that [insurer] refused to be bound by the contract because of [the misrepresentations] , nor, indeed, did it ever set them up as a defense at all until the filing of its amended answer on October 22, 1917, when it had been notified of the loss on August 14, 1916, and sued therefor on September 20, 1916. In these circumstances, the plain provisions of article 4948, Revised Statutes [the predecessor of Art. 21.17], which was likewise a part of the act of 1903, barred the interposition of any defense based upon the misrepresentations claimed.

Id. at 559 (emphasis added).

In National Guaranty Fire Ins. Co. v. King, 24 S.W.2d 501 (Tex.Civ.App. 1929), the court reviewed the record on appeal, and because it did not affirmatively indicate that the insurer had given timely notice, refused to even consider the misrepresentation defense. The court stated:

In a number of propositions appellant complains of alleged misrepresentations in the procurement of the policy in question, and by virtue of which it sought to avoid the same. In reply to the above contentions, we think it is sufficient to say the record fails to show that appellant, by either pleading or evidence, sought to show that, after discovering said alleged misrepresentations, it gave the notice that it would not be bound by said policy as required by statute.

Id. at 505. In National Life Ass’n v. Hagelstein, 156 S.W. 353 (Tex.Civ.App. 1913), the court explained:

The agreed statement of facts shows that [insurer] did not give such notice [as required by the statutory predecessor of Art. 21.17, containing the same relevant provisions]. It follows that it could not make the defenses offered by it, and it is immaterial as to what errors may have been committed in admitting evidence or in the charge of the court.

Id. at 356.

See also Prudential Ins. Co. v. Torres, 449 S.W.2d 335 (Tex.Civ.App.1969, writ ref’d n. r. e.) (defendant requested special jury findings on misrepresentations in the application, failed to request a finding on Art. 21.17 notice — held, notice issue waived); Guarantee Life Ins. Co. v. Evert, 178 S.W. 643, 647-648 (Tex. Civ.App.1915) (failure of company to formally plead Art. 21.17 bars assertion of misrepresentation defense); Commonwealth Bonding & Cas. Co. v. Wright, 171 S.W. 1043, 1044 (Tex.Civ.App.1914) (statement of the general rule); 32 Tex. Jur.2d, Insurance § 224 (2d ed. 1962) (statement of general rule).

The pretrial order issue is not a mere abstraction. There is evidence that immediately upon receipt of the policy plaintiff’s wife wrote to the company pointing out that information relating to plaintiff’s last hospitalization — the omission of which is the critical misrepresentation — was not included in the attachments to the policy. The company’s subsequent dealings with plaintiff also are the subject of evidence in the case.

Defendant’s obligation under Rule 8 (c) to affirmatively set out the giving of Art. 21.17 notice as a part of its misrepresentation defense could have been discharged by pleading in general eonclusory terms that all conditions precedent to a misrepresentation defense had been performed. Rule 9(c) permits a party to plead in general terms the performance of a condition precedent.

Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

This court has held it sufficient merely to track the language of the rule by stating “all conditions precedent have been performed or have occurred.” Fitz-Patrick v. Commonwealth Oil Co., 285 F.2d 726, 729 (CA5, 1960). Obviously this standard of pleading, advisedly adopted and less stringent than required at common law, does not authorize a party to omit all pleading of a condition precedent. Additionally, “the Rule [9(c)] is not intended to shift the burden of proof, nor to affect the question whether any particular clause is merely a collateral proviso or is a condition precedent or subsequent.” 2A Moore’s Federal Practice, ¶ 9.04, at 1945

Thus quite clearly it was defendant’s obligation to plead and to prove as part of its misrepresentation defense the giving of Art. 21.17 notice. This is not only good law but good sense. The occurrence of the event — the giving of notice — is, in the first instance, within the knowledge of the company. The instant plaintiff is in the anomalous position of being faulted for having failed to direct the court’s attention to the statutory prerequsite to defendant’s affirmative defense when the structure of pleadings do not even provide for him to create an issue in this manner. The only pleadings allowed are complaint and answer. Rule 7, Fed.R.Civ.P.

2. The fatal pretrial order.

I turn to the pretrial order, which was signed by counsel for both parties. It was, of course, intended to define the issues as then raised by the pleadings. The claims and defenses of the parties were succinctly set out.

A. Plaintiff: (1) That he is entitled to the proceeds, $50,000.00, of two airline pilot occupational disability insurance policies issued by defendant. (2) That he is disabled and is permanently prevented from carrying on his former occupation as an airline pilot. (3) That he is entitled to statutory penalties, interest and attorney’s fees pursuant to Art. 3.62 of the Texas Insurance Code, the total amount of his claim being $71,000.00.
B. Defendant: (1) That plaintiff has failed to state a claim against defendant upon which relief can be granted.
(2) That plaintiff gave untrue answers to certain questions on the insurance applications (two); that these answers were untrue and were made to induce defendant to issue the policies in question; that defendant relied on these answers and would not issue the policies if true answers had been given by plaintiff. (3) That plaintiff was not in good health at the time the applications were signed by plaintiff. (4) That plaintiff’s disability existed prior to the inception dates of said policies. (5) That Art. 3.62 of the Texas Insurance Code does not apply to this action.

Again, defendant did not make known to the court that it claimed to have given notice that it would not be bound by the policy or that it intended to “show at trial” that it had given such notice and within a reasonable time.

3. What happened at trial.

On the final day of the trial plaintiff moved for a directed verdict. One of his grounds was the following:

The evidence requires a finding in this case that defendant failed to issue notice to plaintiff of the misrepresentations upon which it has attempted to rely in this case. Defendant has not complied with the notice requirements of Article 21.17 of the Insurance Code of the State of Texas. Further, there is no pleading by the defendant to show that it did in fact give notice of misrepresentations discovered by it within a reasonable time after having discovered same. Therefore, as a matter of law, defendant is not entitled to its misrepresentation defenses in this cause.

This was denied.

Plaintiff objected to the charge to the jury in this manner:

Plaintiff says that, due to Defendant’s failure to comply with Article 2117 [21.17] of the Insurance Code, that in the Charge in its present form there is an omission of a material element for the Defendant’s case, and therefore, Plaintiff would request the following issue or question in its form or in-a substantially similar form:
“Do you find from a preponderance of the evidence that the Defendant, Stonewall Insurance Company, within a reasonable time after discovering the falsity of any representation so made to it, gave notice to the Plaintiff that it would refuse to be bound by the contract or policies of insurance in question ?”
With respect to that issue, Plaintiff would further request an instruction, according to Article 2117 [21.17] of the Insurance Code that ninety days shall be considered a reasonable time within which said notice must be given by the insurance company.
Plaintiff requests that that issue be submitted alternatively, if the Court is of the opinion that the Defendant’s representation issue should be submitted at all.

This colloquy then ensued between the court and plaintiff’s counsel:

THE COURT:

And it looks like it [Art. 21.17] might be applicable to this ease.

MR. COLLINS [Counsel for plaintiff]: I think it is, Your Honor.

THE COURT:

But the thing that concerns me is this; it is not in the pretrial order as a contested issue of fact.

MR. COLLINS:

Your honor, it is—

THE COURT:

Or a contested issue of law.

MR. COLLINS:

Your Honor, this is a material element of the Defendant's case, and it is up to him to prove this, and we have authority to support that, in that we have been preserving this all throughout the record, trying to find out when the Defendant discovered the falsity of this.

I didn’t know what proof was going to be offered by the Defendant, Your Hon- or.

THE COURT:

Why wasn’t, if it were a contested issue of fact, as you are now claiming the issue is, why wasn’t it submitted, why wasn’t it raised?

MR. COLLINS:

Well, Your Honor, I assume the reason it was not listed is because that it is material — in other words, it is in the misrepresentation defense itself.

In other words, the predicate, proper predicate has to be raised for the misrepresentation issue itself, and this would be a proper predicate.

THE COURT:

Well, isn’t that a contested issue of fact in the case ?

MR. COLLINS:

I don’t know whether it would be or not.

THE COURT:

Well, you are requesting an issue on it, and you say it is an issue in the case, and you object to the Court’s Charge on that ground, and you submit an issue, and under the Pretrial Order, under Paragraph IV, Contested Issues of Law, there is listed whether Article 3.62 of the Insurance Code is applicable, but nothing is said about Article 2117 [21.-17].

MR. COLLINS:

That is correct, Your Honor; there is also nothing mentioned about Article 2116 [21.16], with respect to misrepresentations, and that is part of the Defendant’s case, again, Your Honor.

THE COURT:

Well, the thing that concerns us is that this is no issue in the case, and whether or not it is an issue of law or an issue of fact, that is the purpose of the Pretrial Order.

MR. COLLINS:

Yes, sir.

THE COURT:

And we won’t get to this stage of the proceedings and have surprise. If it is surprise to the Defendant, and more particularly to the Court I want to know what issue I am trying, and this is not included in the Pretrial Order.

MR. COLLINS:

Your Honor, I would assume that the Defendant would know how to make out its own ease on misrepresentation, and would know what those elements would include.

THE COURT:

Well, I would assume that when you sign a Pretrial Order you would understand what the contested issues of fact are, and you would list them in there when you agreed to it and ask me to enter that as the Order; that is what you are bound by; I think you are bound by what you say under Paragraph III as to the contested issues of fact, and under Paragraph IV as to the contested issues of law. I think you are bound by it.

-X- * -X- *x* *x* -X-

MR. COLLINS:

I am sure it is, that the Court is correct, with respect to what is in the Pretrial Order, but I certainly do not intend to eliminate anything with respect to the Defendant’s case and I assume he would still have the burden of proof on his issues, just like I would have on mine.

THE COURT:

All right. What do you say, Mr. Kaufman, as to the applicability of Article 2117 [21.17] in this case?

MR. KAUFMAN [Counsel for defendant] :

Your Honor, please, we feel that the deposition was taken of Mr. Wally Remdt

THE COURT:

No; the applicability of Article III? MR. KAUFMAN:

Well, no, I won’t go back into it, Judge. We feel it does not apply because at the time — if the Court reads the insurance clause in the policies—

THE COURT:

I don’t care about the deposition.

MR. KAUFMAN:

[Mr. Kaufman stated that he thought Article 21.17 did not apply because there could be no claim under the policies for 12 months, and 12 months had not expired. Additionally, he stated there was evidence that within a period of 90 days after the policies were written there had been correspondence between plaintiff, his attorney and the company as to why the claim had been turned down.]

THE COURT:

All right. I will overrule your objection, Mr. Collins.

Plaintiff’s position was wholly correct. But somehow, possibly because plaintiff was the moving party and stepped into the line of fire by calling the situation to the court’s attention, he found himself thrust into the role of defending against defaults not his. That role has continued through this appeal in which the majority characterize him as “strategically lie[ing] behind the log.” I am inclined to think that both counsel considered the issue in the case and tried it by consent without the judge’s being made specifically aware of it. But if anyone “lay behind the log” it was defendant. The statements of defense counsel, just above described, reveal the insurance company’s contentions that: (1) in view of the policy provisions, as a matter of law Art. 21.17 did not apply; and (2) as a matter of fact the company had given notice of intent to dishonor. Both were matters which defendant was obligated to include in the pretrial order.

It was only in an effort to extricate himself from the position in which the court had placed him, that plaintiff sought to amend the pretrial order.

MR. COLLINS:

Your Honor, if the Court please, I have one other matter in that connection.

With regard to the Court’s refusing the requested issue dealing with notice, as contended by the Plaintiff under Article 2117 [21.17] of the Insurance Code, Plaintiff now, at this time, pursuant to Rule 16 of the Federal Rules of Civil Procedure, hereby requests—

THE COURT:

I am not going to give you any more requests; you have made them.

MR. COLLINS:

Your Honor, I am simply requesting leave — not to the Charge. I am simply requesting leave to modify the Pretrial Order with respect to the notice issue as a legal matter and not as a fact matter.

THE COURT:

No. I am going to deny that request.

MR. COLLINS:

Note our exception.

THE COURT:

I will deny your request to modify the Pretrial Order at this time.

Plaintiff is no less entitled to relief from the erroneous denial concerning the pretrial order by reason of not specifying as error the denial of the motion for directed verdict and the overruling of his objections to the jury charge.

Though defendant claimed no surprise the record implies that the court was surprised. While I think the rules command otherwise, the most that can be said of plaintiff’s responsibility for the incomplete pretrial order and the last-minute notice to the court of the Art. 21.17 issue, is that in some manner he shared the responsibility with defendant. The adverse consequences should in no event be visited solely upon plaintiff. While the problem presents itself in the form of “whose fault was it,” the ultimate concern is whether in a system designed to dispense, justice under liberally and fairly administered rules, the books will close on this case without plaintiff ever having had a chance for judicial determination of the notice issue. It is totally wrong to allow such a consequence in this case.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is DENIED.

GODBOLD, Circuit Judge

dissenting:

I dissent from the denial of the petition for rehearing.

      . Stonewall raised the misrepresentation defense in its answer, and the pre-trial order included, as a contested issue of fact, “[w]hether plaintiff gave untrue answers to questions on the two insurance applications that were relied upon by defendant and were material to the risk involved.”

      . Bettes did introduce some evidence that could bear on the Article 21.17 question, but it was not denominated as such. The effect, of this evidence is discussed in the second section of this opinion.

      . The Article 21.17 issue w.as mentioned by Bettes at two earlier procedural stages of the trial, but the failure of the district court to rule in his favor at either of these times has not been presented as error on appeal. It was first raised in a motion for a directed verdict, filed in written form on the day the trial concluded. It next arose as an objection to the charge to the jury after the charge had already been given, despite the fact that no such instruction had been requested previously. This objection was followed closely by the attempt to amend the pre-trial order, which is one subject of this appeal.

      . This is not an anomaly of Texas law. Art. 21.17 is but a particularized codification of general principles of insurance law.
      “While, generally, the insurer is not considered to waive its right to rescind until it becomes aware of the misrepresentations, once it does learn of such misrepresentations, the insurer is put to an election, and if it fails to declare the contract void, it will be estopped to claim a forfeiture.
      “It is the duty of the insurer to notify the applicant of the invalidity or forfeiture of the certificate in order that he may take proper steps to protect himself.”
      3A Appleman, Insurance Law & Practice § 2055, at p. 569 (1967). The rationale is, of course, that the company may not, with notice, continue to collect and retain premiums while holding to its chest the “ace in the hole” of denying liability when the insured dies or becomes disabled before the premiums equal the coverage.
      “An insurer . . . cannot knowingly accept the benefits of the policy and then reject its burdens.” Id. § 9271, at pp. 691-92. Whether Texas wishes to implement this principle by requiring the insurer to affirmatively prove that it gave notice of intent to rescind, or by requiring the insured to negative the giving of such notice, is a matter of Texas policy with which federal judges have no right to quarrel.

      . Once the party pleading performance of a condition precedent lias averred performance, if the adverse party wishes to controvert the performance or occurrence, the second sentence of 9(c) requires him to do so with particularity. In Ginsburg v. Ins. Co. of North America, 427 F.2d 1318 (CA6 1970), plaintiff affirmatively pleaded in general terms proof of performance of conditions precedent (one of which was timely proof of loss). The insurer made a general denial. The Tenth Circuit held that plaintiff’s pleading was sufficient under 9(c), and that failure to file proof of loss was not an issue because defendant’s general denial did not create it [as required by the second sentence of the rule].

      . The insurer did not, as the majority opinion implies, claim surprise.


source: Caselaw Access Project

author: FRIENDLY, Chief Judge:

license: Public Domain

text:
    Richard ROE, an infant, by Robert Roe, his parent et al., Plaintiffs-Appellants, George Patient et al., IntervenorsAppellants, v. Hollis S. INGRAHAM, as Commissioner of Health of the State of New York, Defendant-Appellee.
    Nos. 947, 948, Dockets 73-1562, 73-1582.
    United States Court of Appeals, Second Circuit.
    Argued May 4, 1973.
    Decided May 24, 1973.

      Michael Lesch, New York City (Barry L. Mendelsen, Solomon Z. Ferziger, and Shea Gould Climenko & Kramer, New York City, of counsel), for plaintiff s-appellants.
    H. Miles Jaffe, New York City (Nor-wick, Raggio & Jaffe, New York City, of counsel), for intervenors-appellants.
    A. Seth Greenwald, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of the State of New York, and Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for defendant-appellee.
    Before FRIENDLY, Chief Judge, HAYS, Circuit Judge, and JAMESON, District Judge.

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

   FRIENDLY, Chief Judge:

This appeal from an order of the District Court for the Southern District of New York, 357 F.Supp. 1217 dismissing complaints in actions under the civil rights statute, 42 U.S.C. § 1983, as jurisdictionally implemented by 28 U.S.C. § 1343(3), relates to the New York State Controlled Substances Act, N.Y.Laws 1972, ch. 878, amending N.Y. Public Health Law §§ 3300-96, effective April 1, 1973, McKinney’s Consol.Laws, c. 45.

The Controlled Substances Act represents a comprehensive effort by the State, aimed primarily at controlling the abuse caused by diversion of lawfully manufactured and prescribed dangerous drugs into unlawful uses. Broadly speaking, the scheme of the statute is to classify each such drug in one of five schedules, see Public Health Law § 3306, depending on the degree of harm its abuse may cause and the extent of its lawful medical uses, with restrictions imposed on distribution of the drug varying in accordance with the schedule in which it is placed. Schedule I lists drugs with a high potential for abuse, for which there is no generally recognized medical use, including certain opiates and opium derivatives, various hallucinogenic substances, and marijuana; § 3330 forbids prescribing any such substance except for strictly limited purposes detailed in Title III. Schedule II lists substances having a high potential for abuse leading to severe psychological or physical dependence, but having accepted medical use in some cases; included in this schedule are such major narcotics as cocaine, concentrated codeine, morphine, Demerol, and other opiates, and the amphetamines. Schedule II drugs may be prescribed and dispensed only in the manner hereafter described. Schedules III, IV and V list other drugs of medical utility having progressively less severe effects on the central nervous system; these may be prescribed and dispensed in less onerous ways unnecessary here to detail.

Plaintiffs’ complaints are particularly directed at the procedure established for the prescription of Schedule II drugs. Section 3338(2) directs that, except for emergency oral prescriptions, substances listed in Schedule II may be dispensed only upon an official New York State prescription form. These forms, to be prepared and issued by the Department of Health in groups of 100, are to be in triplicate and serially numbered, § 3338(1). So far as here relevant, the prescription must contain the name, address and age of the patient; the name, address, registration number, telephone number and handwritten signature of the prescribing practitioner; specific directions for use; and the date upon which the prescription was actually signed, § 3332(2). When the practitioner also dispenses, he must retain the original for five years and file the two copies with the Department of Health not later than the fifteenth day of the month following that in which the substance was delivered, § 3331(6). When dispensing is to be done by a pharmacist, the practitioner must retain a copy for five years, § 3332(4), the pharmacist must retain the original for a like period, and the pharmacist must file a copy endorsed with the date of delivery, the registration number of the pharmacy, and his signature, with the Department of Health not later than the fifteenth day of the month following that in which the substance was delivered, § 3333. The information contained in the prescriptions filed with the Department of Health is afforded some ■ degree of confidentiality by § 3371, which provides :

1. No person, who has knowledge by virtue of his office of the identity of a particular patient or- research subject, a manufacturing process, a trade secret or a formula shall disclose such knowledge, or any report or record thereof, except:
(a) to another person who by virtue of his office is entitled to obtain such information; or
(b) pursuant to judicial subpoena or court order in a criminal investigation or proceeding; or
(c) to an agency, department of government, or official board authorized to regulate, license or otherwise supervise a person who is authorized by this article to deal in controlled substances, or in the course of any investigation or proceeding by or before such agency, department or board.
2. In the course of any proceeding where such information is disclosed, except when necessary to effectuate the rights of a party to the proceeding, the court or presiding officer shall take such action as is necessary to insure that such information, or record or report of such information is not made public.

This action against the Commissioner of Health was brought by three infants receiving prescriptions for medications listed under Schedule II, two physicians who prescribe drugs listed under that schedule, and the Empire State Physicians Guild, Inc. A post-operative cancer patient who receives Hycodan and Percodan, both Schedule II drugs, a woman suffering from migraine who receives Demerol, a physician who prescribes for one of these patients, and the American Federation of Physicians and Dentists were permitted to intervene as plaintiffs and also to file a separate complaint. Alleging that the compelled disclosure to the Department of Health of the identity of patients for whom Schedule II drugs have been prescribed unconstitutionally invades the patient’s right to privacy, infringes on the doctor’s right to prescribe treatment solely on the basis of medical considerations, and discriminates against persons suffering from certain diseases by requiring their identification to a governmental agency as a condition to receiving medical treatment, plaintiffs sought temporary and permanent injunctive relief and asked that a three-judge court be convened, 28 U.S.C. § 2281, to consider their complaint. An affidavit supporting the application for a temporary restraining order annexed a Memorandum to members of the New York Legislature from the Chairman of the Temporary State Commission to Evaluate the Drug Laws, which had proposed the New York State Controlled Substances Act. This Memorandum was submitted because, in addition to elaborating the reasons thought to require the strict control of Schedule II substances, it demonstrated that information from the official prescription would be coded into a computer. The report explained that the computer would be asked certain questions at regular intervals. These questions, which “will be formulated at the highest administrative level,” would relate to physicians who had “prescribed and dispensed a greater amount of a Schedule II substance than could possibly be justified by the nature of their practice” and to “situations arising from lost or stolen prescriptions.” The Memorandum stated, however, that the proposed plan would not “make use of massive print-outs of patients’ names,” or, indeed, disclose identifying data about any patient “unless, based upon previous reports, it is clear that such patient has been using stolen or forged prescriptions.”

The district court issued a temporary restraining order against the Commissioner’s accepting for filing or processing forms containing the identity of patients receiving prescriptions for Schedule II drugs or requiring physicians or pharmacists to file such forms, and directing the Commissioner to maintain in a sealed vault such forms as were received. It also set an early hearing on the motion to convene a three-judge court. The State responded with a motion to dismiss the complaint. It submitted an affidavit of Dr. Robert Whalen, Second Deputy Commissioner of the Department of Health. This developed the reasons, discussed below, which were thought to require the filing of the prescriptions with the patients’ names on them. Dr. Whalen alleged that similar multiple prescription procedures had been in effect in three other states, for considerable periods, with beneficial effeets. He also said that the exception in § 3371(1) (a) allowing disclosure “to another person who by virtue of his office is entitled to obtain such information” was “to allow disclosure internally within the Department to those with a controlled substance responsibility.” Annexed to his affidavit were a manual of the State Commissioner of Health entitled “Security of Computer Systems,” another manual of the Staté Commissioner of Health dealing generally with confidential information, and a policy statement dealing specifically with security from unauthorized disclosure of information obtained by the Department of Health under the Controlled Substances Act. Relying in part on this affidavit, which the district judge took to demonstrate that the Department of Health was “taking all necessary steps to maintain the security of the computerized information,” he found no substantial constitutional question and dismissed the complaint for lack of federal jurisdiction. He continued the temporary restraining order for three days to allow plaintiffs to seek a further stay from this court after filing notice of appeal, and another panel of this court continued so much of it as required the Commissioner to retain prescriptions received in a sealed vault pending an expedited appeal.

In the face of recent strong advocacy of the abolition of the three-judge court requirement in constitutional cases, a unanimous Supreme Court has just defined the standard permitting a single judge to dismiss a complaint seeking an injunction on the ground of unconstitutionality in the most limiting terms the Court has ever used. In Goosby v. Osser, 409 U.S. 512, 516, 93 S.Ct. 854, 858, 35 L.Ed.2d 36 (1973), it said:

Section 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. “Constitutional insubstantiality” for this purpose has been equated with such concepts as “essentially fictitious,” Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (1962), “wholly insubstantial,” ibid, “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910), “obviously without merit,” Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4-5, 78 L.Ed. 152 (1933). The limiting words “wholly” and “obviously” have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions which merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.” Ex parte Poresky, supra, 290 U. S. at 32, 54 S.Ct., at 4; see also Levering and Garrigues Co. v. Morrin, supra, 289 U.S. 103, 105, 53 S.Ct. 549, 550, 77 L.Ed. 1062 (1933); Hannis Distilling Co. v. Baltimore, supra, 216 U.S. at 288, 30 S.Ct. at 327; McGilvra v. Ross, 215 U.S. 70, 80, 30 S.Ct. 27, 31, 54 L.Ed. 95 (1909).

Despite the severity of this standard, we should have little difficulty in sustaining the district court if plaintiffs’ attack had been limited to the discrimination between the disclosure requirements applicable to prescriptions for drugs in Schedule II and those applicable to drugs in Schedules III, IV and V. It is apparent that the limitation of the central filing requirement to Schedule II drugs was designed for the specific purpose of confining the resulting intrusion into privacy to those drugs whose unlawful distribution entails the greatest danger to patients and the public. The legislative purpose in making the differentiation being thus permissible, indeed, laudable, the courts will not assume the task, for which they are conspicuously unfitted, of inquiring whether every drug was properly placed by the Legislature in one schedule rather than another. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 55 L.Ed. 369 (1911); Metropolis Theater Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 57 L.Ed. 730 (1913). The district court likewise was clearly correct in dismissing the plaintiffs’ claim that the Act’s imposition of stricter confidentiality requirements upon the records of addicts participating in drug maintenance programs than on the information relating to Schedule II drug prescriptions denied them equal protection of the laws. As the district judge pointed out addicts have understandably been reluctant to bring their drug use to the light of day, and the state could reasonably have believed that only the strictest confidentiality, including protection from disclosure to law enforcement authorities, would encourage them to join treatment programs.

This, however, was only a part, indeed a relatively minor part, of plaintiffs’ complaints. The patients’ main attack is that the requirement of filing with the Department of Health is an impermissible invasion of a constitutional right to privacy with respect to the status of their health and the medical treatment they are receiving, and the physicians contend that the danger of disclosure impairs a constitutional right to make their decisions solely on the basis of medical considerations.

The concept that privacy may be a constitutional right enjoying protection against governmental intrusions other than those banned by specific provisions of the Bill of Rights, notably the First and Fourth Amendments, see Stanley v. Georgia, 394 U.S. 557, 564-566, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Katz v. United States, 389 U.S. 347, 351-353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), was first explicitly stated in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). That decision, along with Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) , can be viewed as forecasting recognition of a constitutional right of men and women to decide, free of governmental interference, whether to minimize the risks of conception from sexual intercourse, although Griswold focused on the provision of the Connecticut statute proscribing the use of contraceptives and the attendant horrors of enforcement in the case of married persons, 381 U.S. at 485-486, 85 S.Ct. 1678, and Eisenstadt was rested on the equal protection clause. Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) , went further and held that a woman’s right to terminate her pregnancy was a “fundamental” constitutional right, subject to regulation only on the basis of a “compelling” state interest, which was found not to exist during the first trimester and to exist only in a limited degree in the second. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L. Ed.2d 201 (1973), took a still further step by recognizing a pregnant woman’s constitutional right to make the abortion decision on the basis of advice from her own physician without the approval of a hospital committee or the concurrence of other doctors.

Although, as we recently indicated in Rosenberg v. Martin, 478 F.2d 520, at 524 (2 Cir. 1973), the right to privacy which thus far has been granted constitutional protection relates only to “the most intimate phases of personal life,” having to do with sexual intercourse and its possible consequences, it is not “obvious” that the right will be thus confined. - Indeed, the Court’s recognition in Roe v. Wade, supra, 410 U.S. at 153, 93 S.Ct. at 727, that the right to privacy is “founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” itself suggests that the right may not be so closely cabined. See, for an adverse criticism, Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973). ' As Mr. Justice Stewart stated in his concurrence in Roe, 410 U.S. at 169, 93 S.Ct. at 735, quoting Mr. Justice Harlan’s dissenting opinion in Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), the liberty guaranteed by the due process clause “is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement.”

If there is anything “obvious” about the constitutional right to privacy at the present time, it is that its limits remain to be worked out in future cases. Should the constitutionally protected zone of privacy be extended beyond the area already recognized, the individual’s interest in keeping to himself the existence of his physical ailments and his doctor’s prescriptions for them would lie rather close in the continuum. If New York had passed a statute directing that all prescriptions, or even all prescriptions for Schedule II drugs, must be published in the press, we do not think the State would have seriously contended, still less that the district judge would have held, that a constitutional attack was “obviously frivolous.” That is enough to show that the question whether the right of privacy here asserted by the patients does enjoy some degree of constitutional protection is a substantial one. Assuming that such a constitutionally protected right does exist, the plaintiffs have raised a further question whether the impairment of that right was justified by some larger interest which the State is entitled to pursue.

The right to privacy in matters such as those here at issue surely is not absolute. This is shown by the rulings in Roe v. Wade, supra,, 410 U.S. at 152, 93 S.Ct. 705, permitting restrictions on the abortion decision during the second trimester of pregnancy and prohibition of it during the third. Also, we do not read the portion of Doe v. Bolton, supra, 410 U.S. at 198, 93 S.Ct. 739, striking down Georgia’s “two doctor concurrence” requirement as meaning that a state is wholly without power to regulate the practice of medicine or the activities of physicians except by professional censure, deprivation of licenses, or enforcement of the criminal law. Indeed, plaintiffs seem to concede that their constitutional rights were not violated by the previous New York laws, which required prescriptions for narcotic drugs to bear the full name and address of the patient, and the name, address, registration number and signature of the physician, former Public Health Law § 3301(32) (McKinney 1971); required pharmacists to retain copies of prescriptions for two years, former Public Health Law § 3322(1) (c); and allowed inspection of them by state and federal law enforcement authorities as well as the Department of Health, former §§ 3322(1) (c), 3334(1).

New York has advanced powerful arguments in support of the requirement of central filing of prescriptions for Schedule II drugs. The most important are that only by such filing, now complemented by the computer’s ability to answer appropriate inquiries, can the State readily detect a number of serious abuses — the same patient going from doctor to doctor and thereby obtaining quantities of Schedule II drugs greater than his legitimate medical needs; over-prescription by doctors; and the theft or forgery of prescriptions. Each of these abuses leads to an individual’s possession of quantities of these dangerous drugs which would be seriously harmful if used and afford the opportunity for sale into illicit drug channels. Without questioning the seriousness of the problem, plaintiffs respond that these abuses could be adequately controlled without central filing, or by central filing without patients’ names, and that the added efficiency is not worth the price in terms of risk of disclosure.

On this last point something turns on how great the risk is. While the Constitution does not condemn a state to using ineffective means in dealing with a problem as serious as the use of the opiates and stimulants listed in Schedule II, it may well condition use of a more effective means which involves a danger to constitutionally-protected privacy on the taking of all reasonable precautions to limit the risk. The complaints, and other material of which we may take judicial notice, are not conclusive on this score. Although Dr. Whalen may be correct in asserting that § 3371(1) (a) was intended only to allow disclosure of prescription information to Department of Health officials working in the area, the statutory language is so open-ended that full exploration of how confidentiality is in fact being preserved may,be required. If it were clear that the State had taken or proposed to take effective steps, by regulation or otherwise, to limit access to the patients’ names on the prescription forms as rigidly as is consistent with accomplishment of the asserted statutory purpose, the grounds for constitutional attack might disappear. But the district court was not entitled to dismiss the complaint on the basis of the State’s assertions that it has already done this. The Supreme Court stated long ago in Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933), that “The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint.” See also Goosby v. Osser, supra, 409 U.S. at 521, 93 S.Ct. 860 n. 7. Looking at these allegations, and also at the Memorandum of the Temporary State Commission to Evaluate the Drug Laws which was annexed to the moving affidavit of plaintiffs’ counsel, and the various state manuals, as we think we may, we do not believe that, under the strict test announced in Goosby v. Osser, supra, the complaint could properly have been dismissed without further exploration of the degree of need for central filing including the patients’ names on the one hand, and the adequacy of the provisions to protect against malicious or careless disclosure on the other.

The order of dismissal is therefore reversed, with instructions to the district judge to request the convening of a three-judge court under 28 U.S.C. §§ 2281 and 2284. The temporary restraining order, as modified by this court, is continued pending the hearing before such a court and for such further period, if any, as that court may then direct.

      . The procedure for these, detailed in § 3334, ultimately results in the same filing witli the Department of Health of a copy of the prescription bearing the name of the patient about which plaintiffs complain.

      . The motion for a temjrorary injunction was also supported by affidavits of parents of the infant plaintiffs, objecting to the names of their children and the medications they are receiving being disclosed to the state and recorded in the state’s data bank, and affidavits of physicians asserting that the disclosure requirement would make them reluctant to prescribe, and patients reluctant to accept, Schedule II drugs, thus causing non-medical considerations to interfere with the doctors’ determination as to the appropriate medical treatment.

      . It is clear that the modified restraining order does not relieve physicians and pharmacists from performing the duties imposed on them by the statute under attack. The Commissioner is at liberty to announce this if lie deems it desirable.

      . See Report of the Study Group on the Caseload of the Supreme Court 28-30 (1972) ; 1970 Report of the Proceedings of the Judicial Conference of the "United States, at 78-79; Burger, The State of the Federal Judiciary — 1972, 58 A.B.A.J. 1049, 1053 (1972).

      . The standing of the physicians seems to be established by Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d (1965), and Doe v. Bolton, 410 U.S. 179, 185, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). However, since their claims are less impressive than those of the patients, we will confine our discussion of the merits to the latter.

      . There are passages in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 536, 541 (majority opinion of Douglas, J.), 546-547, 62 S.Ct. 1110, 86 L.Ed. 1655 (concurring opinion of Jackson, J.) (1942), which may be regarded as harbingers.

      . While the State correctly points out that the prescription form does not require a description of the illness, plaintiffs counter that, at least for some of the drugs in Schedule II, many members of the public know the ailments for which such drugs are commonly prescribed. To take perhaps the most obvious example, most informed people would associate large dosages of Demerol with an ailment causing serious pain. It is immaterial that the ailment usually is not one that should arouse any emotion toward the victim save sympathy; most people simply do not want their ailments to be generally known.

      . Indeed, there is language in Doe v. Bolton, supra, 410 U.S. at 194, 93 S.Ct. 739, from which it could be argued that the Court has already taken the step of extending constitutional protection to the privacy of the doctor-patient relationship.


author: ROSS, Circuit Judge. BRIGHT, Circuit Judge

text:
    Henry L. BEANLAND, Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant.
    No. 72-1446.
    United States Court of Appeals, Eighth Circuit.
    Argued April 9, 1973.
    Decided May 17, 1973.

      Bright, Circuit Judge, concurred and filed opinion.

      David R. Odegard, Kansas City, Mo., for appellant.
    Jo B. Gardner, Monett, Mo., for appellee.
    Before GIBSON, BRIGHT, and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

Chicago, Rock Island and Pacific Railroad Company (Rock Island) brought this appeal from a judgment obtained by Henry L. Beanland (Beanland) in an F. E.L.A. action. The jury returned a verdict in the amount of $275,000.00, and the district court denied a motion for a new trial, 345 F.Supp. 220. We reverse with directions to hold a new trial.

Beanland, an engineer for Rock Island, was injured on March 25, 1970, in an accident involving his train No. 74 (74) and extra train 1339 (1339), on a siding at Union, Missouri. Both trains were eastbound with 1339 preceding 74. At Union, 1339 took a siding to permit 74 to pass, but after taking the siding, failed to realign the siding switch to permit 74 to proceed on the main track. The crew of 1339 had placed warning torpedoes on the tracks west of the siding and had advised 74 by radio that 1339 was on the siding. When 74 approached the siding at 35 to 40 m. p. h. it hit the torpedoes and started to slow down. Beanland testified that as 74 continued eastward, he saw 1339 on the siding but did not notice that the siding switch was still open. He testified that he was given a “highball” signal by one of the crew members of 1339 and then increased his speed. As 74 approached within 75 feet of the switch, Beanland noticed the switch was open. He threw the train into emergency braking, but being unable to stop in time, he jumped out of the side of it. 74 then rammed into the rear end of 1339 on the siding. In the collision the brakeman on 74 was killed and Beanland was injured in jumping. Beanland was later discharged by Rock Island.

Beanland commenced an action in the trial court alleging three separate causes of action: The first was under F.E.L.A. for injuries due to the negligence of Rock Island; the second was for wrongful discharge, an alleged breach of his employment contract; and the third was for conspiracy of Rock Island and its officers in wrongfully discharging Bean-land. The trial court ordered that the first count be tried separately, and this appeal is from the trial of that first count.

On this appeal, Rock Island alleges several errors in trial, including the following :

1. The court erred in allowing evidence and in giving an instruction that the plaintiff’s distress at the brakeman’s death and the plaintiff’s discharge were elements of plaintiff’s damages.
2. The court erred in failing to include a “present worth” instruction in his charge to the jury and in refusing both of defendant’s proffered instructions, thereby resulting in an excessive verdict.
3. The court erred in its refusal to allow various witnesses of defendant to testify as to the meaning of certain railroad rules and the custom and practice of applying those rules.

I. EVIDENCE AND INSTRUCTIONS ON DISCHARGE AND DEATH OF BRAKEMAN

In the trial of this case, even though the trial court had ordered a separate trial as to Beanland’s second and third counts relating to unlawful discharge, Beanland’s counsel was permitted, over repeated objections, to ask several medical witnesses hypothetical questions which made certain assumptions relating to his discharge and to the death of his friend, the brakeman. The witnesses were asked to assume the following:

“[T]he head brakeman, a close friend of plaintiff, was killed and the plaintiff was discharged by the railroad and has been physically unable to work since the injury, and has suffered from mental depression and worry about his condition, loss of job, because of his being discharged and his physical inability to work, and because of his friend’s death in the collision.”

In the instructions to the jury regarding the effect of these assumed facts on Beanland, the district court stated:

“You are therefore instructed that the plaintiff may not be awarded any damages in connection with his discharge and that the evidence concerning his depression or withdrawal symptoms regarding that discharge is to be considered only in regard to your determination of the plaintiff’s present and future physical and mental condition but not as a separate element of damage.
“You are further instructed that the evidence concerning the plaintiff’s reaction to the death of Gary Sehlesner [brakeman] was admitted for substantially the same limited purpose. In other words, you are instructed that the plaintiff may not recover any damages for any depression or withdrawal symptoms which you may find have resulted from the death -of the brakeman but you may, however, consider that evidence as one of the many facts and circumstances in evidence which will assist you in determining the plaintiff’s present and future physical and mental condition but not as a separate element of damage.”

Rock Island argues that the trial court erred in allowing plaintiff to hypothesize the death of the brakeman, his own discharge and his mental distress therefrom, to each of his medical witnesses, since neither of the factors were proper elements of damages for mental anguish under the circumstances of this ease. Rock Island further contends that the instruction given by the trial court set forth above permitted the jury to consider the death and discharge in determining damages for plaintiff’s future physical and mental condition. Bean-land contends that the damages flowing from the discharge were proper considerations as it was an intentional act of Rock Island which clearly put the blame on Beanland for the death of the brakeman, and furthermore since the testimony of the medical witnesses related the mental injury and worry to the physical trauma, damages for such mental anguish were proper herein.

We must agree with Rock Island that the challenged hypothetical question clearly brought before the jury, on several occasions, an improper consideration of the effect of the discharge and the death of the brakeman which could have influenced their decision as to the amount of the verdict. And it would also appear that the instruction given by the trial court did little, if anything, to cure the improper questioning. Although the instruction was ambiguous, it could have been interpreted by the jurors to permit them to consider the mental anguish, resulting to the plaintiff from the discharge of Beanland and the death of the brakeman, in assessing damages.

The evidence of Beanland’s mental suffering related not only to the direct injuries received in the accident but also to the effect of the discharge and the death of the brakeman. For example, the testimony of Dr. Moseley included the following questions arid answers:

“Q. And how about his worry, mental anguish, depressed feeling? A. Well, hopefully this is not a permanent problem, but it has certainly been a significant portion of his total medical care up to date. When you have no job, no income, and hurt as much as this man is hurt, you get a reactive depression that can be quite severe. In fact, it is a disabling problem.
Q. Loss of his friend in the accident also related to that? A. This is contributing to it.” App. at 111. (Emphasis added.)

Once the trial court removed the discharge issue from the trial of this case, evidence relating thereto should have been excluded, not only as it related to damages suffered by the plaintiff, but also as it related to the defense of contributory negligence. See Kelly v. New York, New Haven & Hartford R. R., 138 F.Supp. 82, 83-84 (D.Mass. 1956), in which District Judge (later Chief Judge of the First Circuit) Bailey Aldrich reached the same conclusion. Cf. Anderson v. Louisiana & Arkansas Ry., 457 F.2d 784, 785 (5th Cir. 1972). Damages resulting from intentional acts, such as the discharge, have no place in a personal injury F.E.L.A. action which deals exclusively with negligence. 45 U.S.C. § 51. In fact, an action for wrongful discharge would appropriately be in contract and not cognizable at all under 45 U.S.C. § 51.

The related question of mental suffering of Beanland resulting from the death of the brakeman must be separately considered. The Supreme Court has stated that “reasonable foreseeability of harm is an essential ingredient of Federal Employers’ Liability Act negligence.” Gallick v. Baltimore & Ohio R. R., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963).

Certain general indicia of the foreseeability of a plaintiff suffering mental anguish when a third person is the one against whom the particular negligence is directed are set forth in D’Ambra v. United States, 354 F.Supp. 810, 819 (D. R.I.1973), a federal tort claims act case wherein the Court stated:

“ ‘In determining, in such a case, whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following:
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.
(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
(3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.’ ” See also W. Prosser, Law of Torts § 55 at 354 (3d ed. 1964).

This question has been analyzed by Prosser in this way:

“It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one man were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as his friends. And obviously the danger of fictitious claims, and the necessity of some guarantee of genuineness, are even greater here than before. It is no doubt such considerations that have made the law extremely cautious.” W. Prosser, Law of Torts § 55, 353-354 (3d ed. 1964).

Here Beanland claims that the accident was caused solely by the negligence of other railroad employees; he was not in a position to actually witness the death of the brakeman and there was no showing (at least in the evidence included in the appendix) that the brakeman was any more of a friend to Beanland than his other co-workers. Under these circumstances, the jury should not have been permitted to consider the effect that the death of the brakeman had on the mental suffering of the plaintiff.

We therefore hold that the trial court erred in permitting the plaintiff to hypothesize the death of the brakeman and his own discharge, and his mental distress resulting therefrom, in questioning his medical witnesses. We also hold that the instructions given by the trial court did not correct this mistake and that the failure to make that correction in the instructions was prejudicial error.

II. PRESENT WORTH INSTRUCTION

The district court refused to give the instruction requested by Rock Island relative to reducing the award for future loss of earnings to its present worth. Although the trial judge had initially offered to instruct on this point with what was referred to as the “rule of thumb” present worth instruction Rock Island objected thereto and the trial judge failed to give any instruction on present value at all.

The Supreme Court of the United States has directly spoken on the necessity of reduction of future benefits to present worth in an F.E.L.A. case. In its decision in Chesapeake & O. Ry. v. Kelly, 241 U.S. 485, 489-490, 36 S.Ct. 630, 632, 60 L.Ed. 1117 (1916) that Court stated:

“So far as a verdict is based upon the deprivation of future benefits, it will afford more than compensation if it be made up by aggregating the benefits without taking account of the earning power of the money that is presently to be awarded. It is self-evident that a given sum of money in hand is worth more than the like sum of money payable in the future.
“. . . [A]s a rule, and in all cases where it is reasonable to suppose that interest may safely be earned upon the amount that is awarded, the ascertained future benefits ought to be discounted in the making up of the award.”

This rule was specifically recognized in the F.E.L.A. case of Sleeman v. Chesapeake & O. Ry., 414 F.2d 305, 307-308 (6th Cir. 1969) wherein the Court remanded the case “for recomputation of damages . . . based on the present worth formula” of Kelly, supra. Id. at 308. The applicability of reduction to present worth has likewise been acknowledged in other cases involving F. E.L.A. or related Acts. See e. g., Blue v. Western Ry. of Ala., 469 F.2d 487, 496 (5th Cir. 1972), cert. denied, 410 U. S. 956, 93 S.Ct. 1422,” 35 L.Ed.2d 688 (1973); Ballantine v. Central R. R. of New Jersey, 460 F.2d 540, 544 (3d Cir.), cert. denied, Ballantyne v. Central Railroad, 409 U.S. 879, 93 S.Ct. 133, 34 L. Ed.2d 133 (1972); Yodice v. Koninklijke Nederlandsche Stoomboot Maatschappij, 443 F.2d 76, 77 (2nd Cir. 1971), (wherein Judge Friendly states that the request for the award for future lost earnings to be discounted to present value was “in line with so many familiar and controlling, decisions that extended citation would be supererogatory.” Id. at 77-78); Taylor v. Denver and Rio Grande Western R. R., 438 F.2d 351, 353 (10th Cir. 1971); Petition of United States Steel Corp., 436 F.2d 1256, 1279-1280 (6th Cir. 1970), cert. denied, Lamp v. United States Steel Corp., 402 U.S. 987, 91 S.Ct. 1649, 29 L. Ed.2d 153 (1971); Downie v. United States Lines Co., 359 F.2d 344, 347 (3d Cir.), cert. denied, 385 U.S. 897, 87 S.Ct. 201, 17 L.Ed.2d 130 (1966); Pennsylvania R. R. v. McKinley, 288 F.2d 262, 264 (6th Cir. 1961); Chicago & N. W. Ry. v. Candler, 283 F. 881, 884 (8th Cir. 1922).

The failure of the trial court to give, the instruction proffered by Rock Island which is set forth in E. Devitt & C. Blackmar, Federal Jury Practice & Instructions § 78.13 at 205-206 (1970) was prejudicial error.

III. INTERPRETATION AND CONSTRUCTION OF OPERATING RULES

Rock Island attempted, on two different occasions, to introduce into evidence the testimony of railroad employees relative to the meaning and interpretation of certain terms relevant to Rock Island’s defense of contributory negligence, said terms being found in Rock Island’s Uniform Code of Operating Rules, specifically the phrase “safe flagging distance” found in Rule 11(a). That Rule, in pertinent part provides as follows:

“The explosion of two torpedoes is a signal to immediately reduce speed and proceed for a safe flagging distance at Restricted Speed.”

This excerpt from the Uniform Code was offered into evidence as “Plaintiff’s Exhibit 16” along with other portions of said Operating Rules. The term “Restricted Speed” was defined in a portion of the exhibit, but the Rules did not define the phrase “safe flagging distance.” For that reason Rock Island attempted to elicit testimony from Mr. Ham, a safety officer of Rock Island, and from Mr. Gray, an assistant to the general manager of Rock Island, as to the customary interpretation given this phrase by those familiar with the rules and practices of the railroad profession. The trial judge denied admission of such testimony on the ground that the wording of Rule 11(a) was clear and did not require extrinsic evidence as to its meaning. Rock Island argues that the exclusion of this testimony was prejudicial error.

At the outset it should be noted that whether one characterizes this as a question of interpretation and explanation of the phrase “safe flagging distance” as it relates to Rule 11(a) or one of custom or practice in applying said Rule, the purpose of the attempted offer was to explain to the jurors the meaning of this phrase in the ordinary usage and operations of the trains of Rock Island. Beanland had previously testified on cross-examination that he was familiar with Rule 11 and that he has fulfilled the rules as to restricted speed for a “sufficient distance” and Rock Island’s obvious purpose in attempting to adduce the excluded testimony was to rebut that of Beanland and to show that he had, in fact, not proceeded at a restricted speed for a safe flagging distance, and that his failure to do so contributed to the accident, all in an attempt to diminish damages.

Generally, in situations where written . instruments contain words which have a technical trade usage or meaning which the jurors are consequently unable to intelligently interpret, extrinsic evidence in the form of expert testimony is allowed to explain such written terms. 7 J. Wigmore, Evidence § 1955 at 85-86 (1940). See e. g., Knierim v. Erie Lackawanna R. R., 424 F.2d 745, 748 (2nd Cir. 1970); Carter v. Atlanta & St. Andrews Bay Ry., 170 F.2d 719, 721 (5th Cir. 1948), rev’d on other grounds, 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236 (1949); Wiggins v. Powell, 119 F.2d 751, 753-754 (5th Cir.), cert. denied, 314 U.S. 649, 62 S.Ct. 94, 86 L. Ed. 520 (1941); Finnegan v. Missouri Pac. Ry., 261 Mo. 481, 169 S.W. 969, 974 (1914). Also, competent expert testimony is generally admissible in cases involving the operations of a railroad which necessarily involve facts peculiar to such railroading. ‘Such eases represent specific applications of the general rule enunciated in the case of Associated Dry Goods Corp. v. Drake, 394 F.2d 637, 644 (8th Cir. 1968), to-wit:

“It is the general rule that expert testimony is appropriate when the subject of inquiry is one which jurors of normal experience and qualifications as laymen would not be able to decide on a solid basis without the technical assistance of one having unusual knowledge of the subject by reason of skill, experience, or education in the particular field.” See also Schillie v. Atchison, T. & S. F. Ry., 222 F.2d 810, 815 (8th Cir. 1955).

See e. g., Detroit, T. & I. Ry. v. Banning, 173 F.2d 752, 756 (6th Cir.), cert. denied, 338 U.S. 815, 70 S.Ct. 54, 94 L. Ed. 493 (1949); Atchison, T. & S. F. Ry. v. Simmons, 153 F.2d 206, 208-209 (10th Cir. 1946); Cruce v. Gulf, Mobile & Ohio R.R., 361 Mo. 1138, 238 S.W.2d 674, 678 (1951). In this case the only testimony of what was meant by “safe flagging distance” insofar as it related to Beanland’s action subsequent to 74 hitting the torpedoes in reducing his speed was that of Beanland himself. Rock Island should have been permitted to answer this testimony with its own expert opinion as to what constitutes a safe flagging distance.

In view of the decision we have reached relating to the first three points of Rock Island’s appeal, we do not deem it necessary to reach the other assignments of error.

Reversed and remanded with directions to hold a new trial.

BRIGHT, Circuit Judge

(concurring).

I concur in Judge Ross’ opinion in this case, including requirement of an instruction on the present worth of future loss of earnings. I believe, however, that fairness to the plaintiff requires consideration of.likely increases in future earnings attributable to offsetting inflationary trends in the economy. In light of changes in the economic picture for the past 40 years, the present-worth instruction should be supplemented by appropriate comment of the court permitting the jury to take into account such increases in future earnings as may be likely to occur to offset decreases in the value of the dollar.

      . Beanland testified that at this point he noticed the “switching banner” was visible. “Switching banners” are devices, also referred to as “targets” or “switch targets” which are in the shape of round discs and located about five feet above the rail. When the full circular disc appears to the oncoming engineer it warns him that the switch is open.

      . Just before trial Judge Oliver eliminated from the trial the counts relating to the discharge and the punitive damages claimed in connection therewith. He stated he “was going to order a separate trial basically of that portion of Count I which presents an ordinary garden variety F.E.L.A. case.” The case proceeded to trial then, on that basis.

      . Rock Island’s initial offer of a present worth instruction, was from W. Matlies & E. Devitt, Federal Jury Practice & Instructions § 76.12 at 433 (1965). However, the instruction ultimately offered was a modified form of the revision of § 76.12, such revision appearing in E. Devitt & C. Blackmar, Federal Jury Practice & Instructions § 78.13 at 205-206 (1970), the modification limiting reduction only for future lost earnings.

      . The “rule of thumb” instruction was apparently conceived by the trial judge from the case of Sleeman v. Chesapeake & O. Ry., 305 F.Supp. 33, 34 (W.D.Mich. 1969), rev’d, 424 F.2d 547 (6th Cir. 1970) (per curiam). It instructs as follows:
      “To determine the present cash value or worth of future loss of earnings, if any, which you may award, you may use the following rule of thumb: discount or reduce the estimated future loss by a per cent equal to the number of years it is assumed that the loss will be sustained. In other words, in the illustration which I gave, I think I referred to a 21-year period of work expectancy. You discount the total by 21 per cent.”

      . The trial judge’s rejection of the testimony appears to have been partially attributed to his concern that said evidence was related to the assumption of risk which has been abrogated in F.E.L.A. cases (App. at 175). Although it is true that assumption of risk no longer applies in F.E.L.A. cases, the defense of contributory negligence remains viable to the extent that it diminishes recovery. 45 U.S. O. § 53. See Dennis v. Denver & Rio Grande R. R., 375 U.S. 208, 210, 84 S.Ct. 291, 11 L.Ed.2d 256 (1963) ; New York Central R. R. v. Marcone, 281 U.S. 345, 350, 50 S.Ct. 294, 74 L.Ed. 892 (1930). This partial defense of contributory negligence cannot be denied the railroad merely because the evidence relating thereto may also be pertinent to assumption of risk. See e. g., Murray v. New York, New Haven & Hartford R. R., 255 F.2d 42, 44 (2nd Cir. 1958).

      . While courts are divided on the question, consideration of inflationary trends in computing future loss of earnings has been approved in the case of a plaintiff who lost a foot in a train accident. Pierce v. New York Central R. R. Co., 304 F. Supp. 44 (W.D.Mich.1969). See Will-more v. Hertz Corp., 437 F.2d 357, 359-360 (6th Cir. 1971) ; of. Southern Pac. Co. v. Zehnle, 163 F.2d 453, 454-455 (9th Cir. 1947) (wrongful death action) ; Golden v. Sommers, 56 F.R.D. 3, 6 (M.D. Pa.1972) (no prejudice in allowing plaintiff’s reference to inflation) ; Brooks v. United States, 273 F.Supp. 619, 627-628 (D.S.C.1967) (wrongful death action) ; but see Johnson v. Penrod Drilling Co., 469 F.2d 897, 904-906 (5th Cir. 1972) ; Petition of United States Steel Corp., 436 F.2d 1256, 1279 (6th Cir. 1970), cert. denied, 402 U.S. 987, 91 S.Ct. 1649, 29 L. Ed.2d 153 (1971) ; Sleeman v. Chesapeake & Ohio Ry. Co., 414 F.2d 305, 308 (6th Cir. 1969) ; of. Williams v. United States, 435 F.2d 804, 807 (1st Cir. 1970) (wrongful death action).


author: PER CURIAM:

text:
    Hipolito MARTINEZ-MARTINEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 73-1302
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 11, 1973.
    Albert Armendariz, Sr., El Paso, Tex., for petitioner.

      Elliot L. Richardson, Atty. Gen. of the U. S., U. S. Dept. of Justice, Washington, D. C., Troy A. Adams, Jr., Dist. Dir., Imm. & Nat. Serv., New Orleans, La., William S. Sessions, U. S. Atty., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for respondent; William E. Weinert, Trial Atty., Immigration and Naturalization Service, El Paso, Tex., of counsel.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir); see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

Hipólito Martinez-Martinez petitions this court for review of a deportation order of the Immigration and Naturalization Service, pursuant to 8 U.S.C.A. § 1105a. Petitioner’s deportation is predicated on Section 241(a) (13) of the Immigration and Naturalization Act, 8 U. S.C.A. § 1251(a) (13), which provides for the deportation of any alien who

prior to, or at the time of any entry, or at any time within five years after any entry, shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law

The Special Inquiry Officer found that the petitioner accepted money for assisting five aliens to illegally enter the United States during September of 1970. It was undisputed that the petitioner had entered this country as an immigrant during June of 1966. Thus, the Officer concluded that the petitioner was deportable as an alien, who within five years of entry, committed the acts described in Section 241(a)(13). The Board of Immigration Appeals affirmed the decision of the Special Inquiry Officer.

In this proceeding the petitioner challenges this determination, claiming that he originally entered this country illegally in August of 1965 and voluntarily departed the country in May of 1966, shortly before making his legal re-entry the following month. He contends that for the purposes of Section 241(a) (13) his illegal entry in 1965 should be considered the beginning point of the five year period.

Section 101(a) (13) of the Act, 8 U.S. C.A. § 1101(a) (13), provides:

The term “entry” means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary : Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.

The language of the statute will not bear the construction urged by the petitioner. Petitioner had no “lawful permanent residence” in the United States prior to June of 1966. Therefore, his legal coming into the United States at that time was an “entry”. The privilege of legally entering this country in 1966 could not and did not carry with it retroactive legality as to petitioner’s prior illegal residence. Thus, the acts committed during September of 1970 occurred within five years of entry.

The other points raised by Petitioner do not merit discussion. The Petition for Review is

Dismissed.

      . Of. Section 101(a) (20) of the Act, 8 U. S.C.A. § 1101 (a) (20) which provides:
      The term “lawfully admitted for permanent residence” means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.

      . This is not a case where lawful residence is temporarily interrupted, where the promise is that “it is * * * important that the continued enjoyment of [our] hospitality once granted, shall not be subject to meaningless and irrational hazards.” See Rosenberg v. Fleuti, 374 U.S. 449, 459, 83 S.Ct. 1804, 1810, 10 L.Ed.2d 1008 (1963).