author: SIMPSON, Circuit Judge:

text:
    Joe Cephas SINGLETON, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 72-2517.
    United States Court of Appeals, Fifth Circuit.
    April 12, 1974.

      Theodore R. Johns, Elmo R. Willard, III, Walter M. Sekaly, Beaumont, Tex., for petitioner-appellant.
    John L. Hill, Atty. Gen., Howard M. Fender, E. L. Hamilton, Attys., Austin, Tex., for respondent-appellee.
    Before GEWIN, SIMPSON and RONEY, Circuit Judges.
   SIMPSON, Circuit Judge:

We review here a district court order denying appellant’s petition for a writ of habeas corpus. For reasons set out below, we affirm the district court’s ruling.

I. THE FACTS

Joe Cephas Singleton, the appellant, is a black male who was charged in April, 1960, with the rape of a white female in Beaumont, Texas. At trial in the Criminal District Court of Jefferson County, Texas the State introduced as evidence against Singleton a signed confession and a single thumbprint, matching Singleton’s left thumbprint, found on the Venetian blind covering the window through which the assailant had entered the victim’s house. An all white jury convicted Singleton and recommended the death sentence. Judgment was entered accordingly, and the sentence of death pronounced on July 29, 1960. Singleton’s motion for new trial was denied by the trial court, and his conviction was affirmed by the Texas Court of Criminal Appeals on March 22, 1961. Singleton v. State, 171 Tex.Cr.R. 196, 346 S.W.2d 328. Two successive petitions for rehearing were denied by the appellate court. Singleton’s petition for certiorari to that court was denied by the United States Supreme Court on October 9, 1961. Singleton v. Texas, 1961, 368 U.S. 867, 82 S.Ct. 118, 7 L.Ed.2d 64.

Before execution of the death sentence counsel for Singleton filed a motion supported by affidavit in the trial court alleging that Singleton had become insane since his conviction. A jury hearing on this question resulted in a finding of present insanity. Singleton was, accordingly, committed to the Rusk State Hospital where he remained until August, 1968. He was then declared in the opinion of hospital authorities to have regained his sanity and returned to the custody of the sheriff of Jefferson County for retrial before a jury upon the sanity issue. Three trials were required for resolution of this issue, the first two resulting in mistrials. Singleton was found to be sane by the trial jury in February, 1970, and in March, 1970, the Criminal District Court of Jefferson County again ordered the death sentence executed.

Singleton’s counsel thereupon sought a writ of habeas corpus in the United States District Court for the Eastern District of Texas. The petition was denied without prejudice for failure to exhaust Texas post-conviction remedies. Thereafter, on May 7, 1970, Singleton filed a state habeas petition in his trial court, the Criminal District Court of Jefferson County, Texas. After a full evidentiary hearing on the petition that court denied relief by a lengthy opinion-order which included findings of fact as to each of the issues raised. The Texas Court of Criminal Appeals affirmed this order April 1, 1971 without written opinion by remanding the petitioner to custody. Vernon’s Ann.C.C.P., Art. 11.07. Eight days before Singleton’s scheduled execution in November, 1971 his attorneys returned to the district court below with their petition for a writ of habeas corpus and for a stay of execution pending consideration of the habeas petition. Stay was granted and an evidentiary hearing on Singleton’s petition was conducted on January 5, 1972. The district court, in its order of February 9, 1972, ruled that Singleton had failed to discharge his burden of proof under Title 28 U.S.C. Sec. 2254 and that the state court opinion denying the petition for writ of habeas corpus was fairly supported by the record of the proceedings below. On this reasoning the district court denied the petition and this appeal followed. We affirm.

II. ISSUES ON APPEAL

In his brief, Singleton raises two primary issues. First, he challenges the jury selection system in use in Jefferson County, Texas, at the time of his trial on grounds that blacks were systematically excluded from petit juries trying black defendants in capital cases. Second, he asserts error of constitutional proportions occurred with the admission into evidence of fingerprints taken from him by the police because he was illegally detained at the time that the prints were obtained.

The jury selection issue was squarely before the state courts, and we need only review the district court decision on this point to determine its correctness as a matter of law. With respect to the fingerprint evidence issues, there are questions whether and to what extent these issues" were presented to the state courts. Considerations of federal-state comity require that we initially determine that appellant has exhausted his available state remedies before considering his claims regarding the fingerprint evidence on the merits. Imhoff v. Jones, 5 Cir. 1972, 453 F.2d 894; Hall v. Wainwright, 5 Cir. 1971, 441 F.2d 391, 393.

III. THE FINGERPRINT ISSUE: EXHAUSTION VEL NON OF AVAILABLE STATE REMEDIES

The rape with which Singleton was charged occurred on the night of April 1 or early morning of April 2, 1960. On the night of April 2-April 3 Beaumont police conducted an investigatory roundup arrest of approximately 140 young black males in the Beaumont area. These individuals were taken to the Beaumont police station and processed in the following manner: individuals with no prior police arrest record were photographed and fingerprinted, information concerning address, occupation, etc. was obtained, and the individuals then released; individuals as to whom the police already had “rap” sheets (cards containing fingerprints, photographs and other information) were simply questioned as to the accuracy of the 'information shown on the cards and then released. The appellant was among this mass of individuals arrested. His processing at the police station consisted of pulling a “rap” sheet and updating the information contained thereon. The sheet contained fingerprints of Singleton which had been obtained in 1959. Appellant testified at his state habeas corpus hearing that he was released from police custody sometime during the morning hours of April 3.

Police investigators had discovered a latent fingerprint on the bottom slat of the Venetian blind covering the window through which the rapist had entered the home of his victim. Comparison of this latent print with the cards obtained or produced from police files as a result of the roundup arrest resulted in a matching with appellant’s left thumbprint. A warrant was obtained for Singleton’s arrest, under which he was arrested and charged with rape by Beaumont police on the afternoon of April 3, 1960. On the following day, April 4, 1960, Singleton was again fingerprinted by Beaumont police. The fingerprints of April 4 and the latent print from the scene of the crime, together with a signed confession obtained from Singleton on April 3, constituted the state’s principal evidence at Singleton’s trial in July 1960.

In his brief, appellant raises three questions with respect .to the admission of fingerprint evidence against him at his trial. First, appellant charges that the fingerprints obtained in May 1959 were illegally obtained because the arrest which led to the fingerprinting was purely investigatory in nature in violation of the principles announced in Davis v. Mississippi, 1969, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676. He urges that for this reason the 1959 prints were inadmissible as evidence against him at his trial. Appellant did not raise in the state court proceedings the legality of the 1959 arrest. Indeed, the issue was not presented to the federal district court below, since appellant chose there merely to rely on the record made in the state habeas proceedings. We decline therefore to consider the admissibility of the 1959 fingerprints, without prejudice of course, to the appellant’s raising this issue in a federal court'after exhausting his available state court remedies.

The second point raised is as to fingerprints taken during the earlier detention of appellant prior to his arrest for rape on April 3, 1960. We construe this point to question the legality as evidence of any prints obtained as a result of the dragnet arrest of April 2-3. But the facts as developed at trial showed that no prints were obtained from appellant at the time of his investigatory arrest. Rather, the Beaumont police merely pulled from their files an extant “rap” sheet containing the May 1959 fingerprints. The record therefore refutes the existence of any pre-arrest 1960 fingerprints, and we need devote no further consideration to this question.

The third attack is upon the validity of the prints obtained April 4, 1960 after appellant’s April 3 arrest on the warrant for rape. The asserted ground is that the arrest itself was invalid under Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Giordenello v. United States, 1958, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503, since the affadavit underlying the arrest warrant specified no facts from which a neutral magistrate could determine whether the complaining police officers had probable cause to believe that Singleton had committed the crime with which he was subsequently charged. Appellant asserts that the arrest being invalid, the fingerprints obtained as a result thereof would be inadmissible at trial. An examination of the record again discloses appellant’s failure to present this issue to the courts of the State of Texas before attempting to proceed in federal court on the matter. The first mention of an attack upon the validity of appellant’s arrest upon a warrant was made by amendment in the hearing in state trial court on appellant’s petition for habeas corpus filed there. At this hearing, appellant’s counsel amended the habeas corpus petition previously filed to include an allegation that any arrest of appellant subsequent to the investigatory arrest of April 2, 1960, was in violation of appellant’s constitutional rights because based neither on warrant nor probable cause. But the record shows beyond question that the arrest of April 3 was based upon an arrest warrant secured from a magistrate by the arresting officers. No claim was advanced in the state court proceedings as to any constitutional defect in the warrant or its supporting affidavit. The sufficiency of the underlying affidavit was first brought into question during the federal habeas corpus hearing. The English language is not so elastic as to permit an inference by us that by alleging that his arrest was based upon neither warrant nor probable cause appellant was in fact questioning the sufficiency of the affidavit underlying the arrest warrant. Of greater importance, we may not assume that the state habeas court so construed appellant’s allegations. We are unwilling to repudiate the exhaustion requirement and its federal-state comity underpinnings in any such fashion. In advance of exhaustion of state remedies as to the point we decline to consider arguments addressed to the validity of the affidavit upon which the arrest warrant was issued.

IV. THE JURY DISCRIMINATION QUESTION

The second issue raised by appellant on this appeal concerns the method of jury verdict of guilty in Jefferson Coun-County, Texas, at the time of his trial in 1960. Appellant argues that Negroes were systematically excluded from petit juries in trials of capital offenses against Negroes.

This claim was first raised after the jury verdict of guilty in Jefferson County Criminal Court by appellant’s motion for new trial. Appellant showed that the name cards of prospective jurors in the Jefferson County jury wheel were marked to indicate the race of each individual juror. The jury cards were marked wm, cm, wf, cf to indicate respectively white male, colored male, white female, colored female. In addition, appellant offered testimony indicating that not once within memory had a Negro been included on a Jefferson County petit jury in a trial of another Negro for a capital offense.

Appellant contended that this evidence showed discrimination in the selection of juries in capital cases such as his in violation of appellant’s Fourteenth Amendment rights to Due Process and Equal Protection of the Laws, as well as violating the Texas Constitution. Appellant’s motion for new trial was denied by the Criminal District Court without the assignment of written reasons.

The Texas Court of Criminal Appeals affirmed on appeal stating that there had been no violation of appellant’s constitutional rights in the method of jury selection employed in Jefferson County at the time of appellant’s trial. Singleton v. State, 1961, 171 Tex.Cr.R. 196, 346 S.W.2d 328, 331. The court distinguished two cases relied upon by petitioner’s appeal, Avery v. Georgia, 1953, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244, and Williams v. Georgia, 1955, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161, rehearing denied, 1956, 350 U.S. 977, 76 S.Ct. 443, 100 L.Ed. 847 on grounds (a) that there were Negroes on the panel from which the jurors were selected in appellant’s case (in Avery there had been none, in Williams only a token number; in appellant’s case 20 of 150 on the original panel were Negroes), and (b) that knowledge of the race of an individual juror could not be had in appellant’s ease until after his card had been drawn (in both Avery and Williams, the names of Negro jurors appeared on yellow cards, the names of white jurors on white cards, thus enabling discriminatory selection of the cards themselves).

The federal district court below did not address this point specifically. As already noted that court merely held that appellant had failed to discharge his burden of proof of detention in violation of the Constitution under Title 28 U.S.C. Sec. 2254, and denied the petition for habeas relief.

We begin by noting that appellant, although not raising the jury discrimination claim in state post conviction proceedings, should nonetheless be considered to have exhausted available state remedies on this issue on direct appeal from his conviction to the Court of Criminal Appeals. Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Graves v. Louisiana, 5 Cir. 1973, 472 F.2d 1191; Thomas v. Decker, 5 Cir. 1970, 434 F.2d 1033; Williams v. Wainwright, 5 Cir. 1969, 410 F.2d 144, cert. denied, 1970, 398 U.S. 943, 90 S.Ct. 1846, 26 L.Ed.2d 281. We do not consider that this court’s policy against “piecemeal” litigation of habeas corpus proceedings is contravened by disposing of the jury discrimination question even though it is joined with nonexhausted claims as to the admission of fingerprint evidence at trial. Hargrett v. Wainwright, 5 Cir. 1973, 474 F.2d 987. This policy, as we noted in Harris v. Estelle, 5 Cir. 1974, 487 F.2d 1293, 1296-1297, admits of numerous exceptions. For us to remain silent on the issue here would be to invite a situation in which yet another remand to state court might be necessary (assuming appellant further pursues the fingerprint issues in state court and is unsuccessful there). To avoid this possible diseconomy of judicial time we address ourselves to the merits of appellant’s jury selection claims.

As the district court properly noted, appellant shoulders the burden of showing his entitlement to the Writ of Habeas Corpus. Title 28 U.S.C. Sec. 2254; Irving v. Breazeale, 5 Cir. 1968, 400 F.2d 231, 236; Tyler v. Beto, 5 Cir. 1968, 391 F.2d 993. We must decide whether appellant met this burden by successfully establishing in the proceedings below a prima facie case of racially discriminatory jury selection. Whitus v. Georgia, 1967, 385 U.S. 545, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599, 603-604; White v. McHan, 5 Cir. 1967, 386 F.2d 817, 818. Proof of a prima facie case of invidious discrimination shifts the burden of proof to the respondent, who must then show that an apparently discriminatory result was not the product of racially discriminatory jury selection methods. Alexander v. Louisiana, 1972, 405 U.S. 625, 631-632, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536, 542; Gibson v. Blair, 5 Cir. 1972, 467 F.2d 842, 844; Labat v. Bennett, 5 Cir. 1966, 365 F.2d 698, 719 (en banc), cert. denied, 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334.

The threshold requirement for establishment of a prima facie case of racial discrimination in jury selection is a showing of marked disparity between the percentage of Negroes among persons putatively qualified to serve as jurors and the percentage of Negroes actually on the jury lists in the case in question. Whitus v. Georgia, supra, 385 U.S. at 552, 87 S.Ct. at 647, 17 L.Ed.2d at 605; Wright v. Smith, 5 Cir. 1973, 474 F.2d 349, 351; Gibson v. Blair, supra, 467 F.2d at 844; Black v. Curb, 5 Cir. 1972, 464 F.2d 165, 168. Beyond this initial showing, the prima facie case may be proved in one of two ways.

A prima facie case may be made by showing that the discriminatory result in the jury list accompanied a system of jury selection permitting possible racial identification of potential jurors at any stage in the process of selection of the jury list. Whitus v. Georgia, supra, 385 at 552, 87 S.Ct. at 647, 17 L.Ed.2d at 605; Williams v. Georgia, supra, 349 U.S. at 382, 75 S.Ct. at 819, 99 L.Ed. at 1170 (dictum); Avery v. Georgia, supra, 345 U.S. at 562, 73 S.Ct. at 893, 97 L.Ed. at 1248; Wright v. Smith, supra, 474 F.2d at 351. Alternatively, a prima facie case may be established by showing that the discriminatory result in the jury list in a particular case was representative of the results obtained in a history of cases in the particular jurisdiction in which the trial occurred. Patton v. Mississippi, 1947, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (total exclusion of Negroes from grand and petit juries); Smith v. Texas, 1940, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (token inclusion of Negroes in grand juries); Norris v. Alabama, 1935, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (total exclusion of Negroes from grand and petit juries); Scott v. Walker, 5 Cir. 1966, 358 F.2d 561 (token inclusion of Negroes on grand juries and in petit jury lists).

Upon testing appellant’s proof by these standards, we find that he failed to make even the threshold showing prerequisite to establishment of a prima facie ease of discriminatory jury selection. The one factor crucial to the prima facie case is some indication of the relationship between the percentage of those putatively qualified for jury duty who are Negroes and the percentage of those selected for the jury list in the instant case who are Negroes. We can easily compute that the 20 Negroes thereon represented 13.3% of the 150 jurors on the panel from which appellant’s petit jury was ultimately selected. There was no accompanying showing however, of the percentage of Negroes who might have been eligible for inclusion in the jury wheel in Jefferson County. The only statistical evidence in the record shows that, according to the 1950 census, Negroes represented 12.7% of the total population of the State of Texas. This figure standing alone fails even to show the percentage of Negroes in the Jefferson County population. Of course it reveals nothing as to the percentage of Negroes among Jefferson County jury eligibles. Inescapably we conclude that appellant failed to make a prima facie case of discriminatory jury selection. His petition for writ of ha-beas corpus was correctly denied on this ground.

We comment briefly on petitioner’s arguments going beyond the threshold issue of discriminatory results. Appellant argues that the mere existence of a jury selection system in which discrimination is possible constitutes grounds for reversal, citing Avery v. Georgia, supra, and Williams v. Georgia, supra. Avery and Williams do indeed condemn jury selection systems containing even the possibility of discrimination based on race, Williams, supra, 349 U.S. at 382, 75 S.Ct. at 819, 99 L.Ed. at 1170, and we adhere to the proposition that systems of jury selection containing even the “danger of abuse” must be eradicated. More than mere danger, however, is required to merit reversal of a criminal conviction, especially where, as here, Negroes enjoyed a not insubstantial representation on the jury list from which the petit jury was chosen. Appellant also urged reversal of his conviction on the ground that, as shown by the evidence, not once within memory had a Negro served on a petit jury in a capital case where another Negro was the defendant. This contention, even in conjunction with proof of the lack of Negroes on appellant’s particular petit jury, would be insufficient to establish a prima facie case. The Supreme Court noted in Swain v. Alabama, 1965, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, that underrepresentation or exclusion of Negroes from petit juries can be the result of many factors, one of which is challenges to individual Negro veniremen by defendant’s counsel. Absent some proof of the reasons underlying the absence of Negroes from the petit jury in his case, appellant failed to show the existence of a racially discriminatory jury selection practice existing in Jefferson County at the time of his trial.

V. CONCLUSION

In summary we conclude that appellant has failed to pursue available state court remedies with respect to some of his contentions on appeal, those having to do with the use of fingerprint evidence, and that he has failed to sustain the burden of proof as to others, those asserting racially discriminatory jury selection. For the reasons stated we affirm the district court’s order on appellant’s petition for writ of habeas corpus. This affirmance is without prejudice to appellant’s right to seek further federal habeas relief when he has exhausted his state court remedies with respect to the validity of his 1960 arrest on warrant for rape and the use of fingerprint evidence at his trial, and when he has presented additional evidence to the courts of Texas bearing on the jury selection issue sufficient to make a pri-ma facie case.

Affirmed.

      . It is asserted by the respondent-appellee’s brief and was confirmed by counsel at oral argument that Singleton’s death sentence has since been commuted to life imprisonment, as a result of Furman v. Georgia, 1972, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. The date of commutation does not appear in the record before us.

      . We note, however, that the state court record indicates that the prints introduced against Singleton at his trial were the prints obtained after his arrest on the charge of rape on April 3, 1960. This circumstance may well present further difficulties for Singleton in showing that prejudice resulted from the 1959 fingerprinting. This issue is for the district court’s initial consideration, and we withhold further comment thereon.

      . Ironically, this is the one of appellant’s claims with respect to fingerprint evidence which was exhausted at the state court level. Until the time of the state habeas corpus hearing, appellant’s counsel labored under the misconception that there were fingerprints actually taken of appellant on the occasion of the April 2, 1960, investigatory arrest. At that hearing counsel made an instanter in court amendment to appellant’s habeas corpus petition to include a challenge to use of prints obtained on the occasion of any arrest subsequent to the April 2 arrest.

      . Appellant’s petition originally attacked only the investigatory arrest of April 2, 1960, apparently in the belief that fingerprints were obtained from appellant at this time. See note 2 and accompanying text, supra.

      . Testimony was elicited from court personnel and newspaper reporters whose contact witli the Criminal District Court in Jefferson County spanned fifty years. Court personnel testified that they had seen Negroes on jury venires in such cases, but that they could recall seeing no Negro actually sitting on a petit jury.

      . The court noted that appellant had failed to make a timely challenge to the jury panel prior to the beginning of his trial, but then proceeded to approve the jury selection system on the merits, apparently pretermitting the question of waiver based on the untimeliness of the challenge to the jury selection procedure. Accordingly, we do not consider that the questions of timeliness anil waiver are before us. We also deal with the merits.

      . The Texas Court of Criminal Appeals also attached significance to the history of Williams on remand from the Supreme Court. The case was remanded to the Georgia Supreme Court for further consideration in the light of the Georgia Solicitor General’s admission that the system used was a denial of equal protection. Upon remand the Georgia Court adhered to its original opinion, and the Supreme Court denied certiorari. Singleton v. State, 171 Tex.Cr.R. 196, 346 S.W.2d at 330-331.

      . Proof merely of lack of Negroes or under-representation of Negroes on petit juries is insufficient to establish a prima facie case, See note 10 and accompanying text, infra.

      . A question arises from dictum in Williams v. Georgia, 1955, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161, whether mere proof of the existence of a jury selection system containing a “danger of abuse” is sufficient to establish a prima facie case of discrimination. Williams, and its predecessor, Avery v. Georgia, 1953, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244, both concerned the jury selection system then in operation in Eulton County, Georgia, in which the names of white jurors were placed on white cards and the names of Negro jurors on yellow cards. That scheme was struck down on Equal Protection grounds in Avery, The Court found that the petitioner had established a prima facie case of discrimination, but the Court’s grounds for so finding are somewhat unclear. On the one hand the Court indicated its agreement with the Georgia Supreme Court that the proof of a system incorporating a scheme for racially identifying potential jurors constituted prima facie evidence of discrimination. 345 U.S. at 562, 73 S.Ct. at 893, 97 L.Ed. at 1248. The Court, however, went on to say:
      And, in view of the case before us, where not a single Negro was selected to serve on a panel of sixty — though many were available — we think that petitioner has certainly established a prima facie case of discrimination.
      345 U.S. at 562, 73 S.Ct. at 893, 97 L.Ed. at 1248. The question whether proof of discriminatory results was needed in addition to proof of a system under which discrimination was possible remained unsettled until the Court’s decision in Williams, supra. There, in dictum, the Court added this gloss to its earlier holding in Avery :
      We need only add that it was the system of selection and the resulting danger of abuse which was struck down in Avery and not an actual showing of discrimination on the basis of comparative numbers of Negroes and whites on the jury lists. 349 U.S. at 382, 75 S.Ct. at 819, 99 L.Ed. at 1170.
      Though this language seems to indicate that a mere showing of the existence of a system containing an inherent capacity for discrimination based on race would be sufficient to establish a prima facie case, analysis of subsequent Supreme Court decisions indicates that some proof of actual discriminatory effect is required before criminal convictions can be set aside on the basis of jury discrimination charges. See, e. g., Alexander v. Louisiana, 1972, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (actual discriminatory effect in selection of grand jury); Whitus v. Georgia, 1967, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (actual discriminatory effect in selection of both grand and petit juries).

      . The Court pointed out in Siuain, based on testimony in the record there, that it may often be the Negro defendant himself who prefers that there be no Negroes on the petit jury in his trial. 380 U.S. at 225, 85 S.Ct. at 838, 13 L.Ed.2d at 775. In the instant case, the original venire contained the names of 150 individuals, of which 20 were Negroes. Seventy-four of these, including 11 Negroes, were excused before challenges. Of the nine Negroes remaining on the panel from which appellant’s petit jury was selected, five were excused for cause — by whom and for what reason the record does not clearly indicate— and four were challenged by the State peremptorily.

      . The approach to proof of such a case is discussed in Swain at 222-226, 85 S.Ct. at 837-839, 13 L.Ed.2d at 773-776.


source: Caselaw Access Project

author: DYER, Circuit Judge: GODBOLD, Circuit Judge

license: Public Domain

text:
    Complaint of Twenty Grand Offshore, Inc., etc. TWENTY GRAND OFFSHORE, INC., Plaintiff-Appellant, v. WEST INDIA CARRIERS, INC., Claimant-Appellee.
    No. 72-3314.
    United States Court of Appeals, Fifth Circuit.
    April 12, 1974.

      G. Morton Good, Miami, Fla., John W. Sims, New Orleans, La., for plaintiff-appellant.
    Richard F. Ralph, Miami, Fla., for claimant-appellee.
    Before GODBOLD, DYER and GEE, Circuit Judges.
   DYER, Circuit Judge:

The question posed by this appeal is whether the provisions of a towage contract, requiring the owners of a tug and tow to fully insure their respective vessels and to obtain in each of the policies a waiver of subrogation and a designation of the other party as an additional insured, are invalid and unenforceable as exculpatory clauses contrary to public policy. The district court found the towage contract invalid and entered judgment for the tow. We disagree and reverse.

On the evening of October 30, 1969, the tug EL MULO GRANDE, owned by Twenty Grand Offshore, Inc., had the barge WISCO RANGER under tow. Four miles offshore of Hollywood, Florida, the tug and tow apparently encountered heavy weather. During the storm, the towing hawser parted, and the barge WISCO RANGER, driven by the seas and waves, stranded on the beach. Subsequently, in a limitation proceeding, the district court denied the tug owner exoneration from or limitation of liability, found negligence and privity, and awarded the barge owner damages. The finding of negligent towage is not contested on appeal.

The heart of the controversy is whether, by virtue of the provisions of the towing agreement and the circumstances existing at the time of its execution, the agreement is valid and enforceable, or whether it is within the parameters of Bisso v. Inland Waterways Corp., 1955, 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911, which prohibits a contractual exemption of a towboat owner from responsibility for his own negligence.

The towing agreement sub judice provides in pertinent part as follows:

(3) Owner [Twenty Grand, the tug owner] agrees to procure, pay for and maintain in full force and effect throughout the term of this agreement, hull and machinery insurances in an amount at least equal to the value of the vessel and full form protection and indemnity insurance with a limit in the amount of at least one million dollars ($1,000,000.00). Principal shall be named as an additional assured in all of said policies and such policies shall contain a waiver of sub-rogation in favor of principal.
Principal [West India Carriers, Inc., the barge owner] agrees to procure, pay for and maintain in full force and effect through the term of this agreement, hull and machinery insurance in an amount at least equal to the value of the barge and full form protection and indemnity insurance with a limit of at least one million dollars ($1,000,000.00). Owner, the vessel, its master and crew shall be named as additional assureds in all of said policies and such policies shall contain a waiver of subrogation in favor of owner, the vessel, its master and crew. Proper evidence of such insurance shall be furnished owner.

The facts and circumstances surrounding the execution of the towing agreement are largely undisputed. Twenty Grand Offshore, Inc., the tug owner, is the wholly owned subsidiary of Tidewater Marine Service, Inc. It is one of eight to ten offshore towboat companies operating along the Gulf Coast and eastern coast of the United States. States Marine Lines, Inc., the owner of the barge WISCO RANGER, owns steamships and barges and is an affiliated corporation of West India Carriers, Inc., which was the demise owner, under a bareboat charter of the barge.

The barge owner solicited bids from several towboat companies to enter into a towing agreement for the towage of the WISCO RANGER. The tug owner was selected on the basis of competitive price which was less than other prices submitted to the barge owner for the same service. One of the factors considered by the tug owner in arriving at its bid price was the inclusion of Clause 3 in the towing agreement, since the price for the towage would have been greater without Clause 3 in the agreement. In other towing agreements the tug owner had agreed to the elimination of Clause 3 but only with an increase in the towing rate.

No contention was made or evidence introduced to show that there was a monopoly of the towboat market or that there was any form of a monopolistic agreement among towboat operators. There was likewise a clear absence of any showing that the barge owner was overreached by the tug owner, or that the tug owner was in a position to drive hard bargains.

Notwithstanding barge owner’s contractual obligation to do so, it was stipulated that barge owner failed to have tug owner or its tug named as an additional insured. In addition, the barge owner failed to obtain a waiver of sub-rogation from its underwriters, even though the underwriters had no objection to giving such a waiver. On the other hand, tug owner did comply with its contractual obligation by having barge owner named as an additional insured and by securing a waiver of sub-rogation.

The district court found that the tow-age agreement was not exculpatory but that it was an indirect attempt at exculpation because the effect of the waiver clauses was “the same as the Bisso-in-valid clauses.” It recognized that the clauses present in Bisso were not insurance clauses but simply provided that the towing would be at “the sole risk” of the barge, and “that the tug’s master, crew and employees would, in the performance of their duties, become ‘employees’ of the barge.” Pointing out that the sole risk provision was found to be exculpatory and against public policy, the district court then focused on the second, or imputed employees clause, which had again been invalidated in Boston Metals Co. v. The Winding Gulf, 1955, 349 U.S. 122, 75 S.Ct. 649, 99 L.Ed. 933, and analogized the indirect attempt to exculpate the tug by use of imputed negligence of an employee with the use of the insurance clauses sub judice, concluding that the Supreme Court forbade tug owners from doing indirectly what could not be done directly.

The barge owner supports the district court’s conclusion by this syllogism: Bisso condemns any clause that is exculpatory in relieving the legal liability of a negligent tower; compulsory insurance clauses are exculpatory; compulsory insurance clauses are therefore condemned.

The tug owner responds that the insuring provisions in the towing agreement are not an indirect attempt to accomplish what Bisso prohibits; that they make no effort to, and indeed do not, regulate the rights of the tug and tow inter se. The clause does not prevent the barge owner from suing the tug owner or from obtaining a judgment against the tug owner. It simply precludes the barge owner’s insurance company from suing and recovering from tug owner losses which it had paid or is obligated to pay to the barge owner on account of an insured casualty. The tug owner’s liability to the barge owner is unaffected by the insurance clause. Finally, tug owner argues that public policy considerations cannot dictate which party to a contract pays the insurance premium and that that is all the clause in question requires.

It is obvious that this is not, as was Bisso, a “towing movement * * * at the sole risk of the barge,” or the imputation of the employees of the tug to be the employees of the barge. Nevertheless, we are called on to determiné whether the insurance clause here involved comes within the purview of the “judicial rule, based on public policy, invalidating contracts releasing towers from all liability for their negligence,” keeping in mind that “[t]he two main reasons for the creation and application of the rule have been (1) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains.” Bisso, supra 349 U.S. at 90, 91.

Both the district court and the barge owner lean heavily on Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 1963, 372 U.S. 697, 83 S.Ct. 967, 10 L.Ed.2d 78, which reversed our holding that Bisso was inapplicable in the factual context of that case. Crescent Towing & Salvage Co. v. Dixilyn Drilling Corp., 5 Cir. 1962, 303 F.2d 237. In Crescent, the towing agreement provided that “any damage claims urged by third parties as well as any claim which may be urged by virtue of damages to the drilling rig in the course of the towage shall be for your account [the barge owner] and account of your underwriters.” 303 F.2d at 241. This Court found no overreaching to drive a hard bargain. More importantly, we found that the other reason explicated in Bis-so, i. e., to discourage negligence by making wrongdoers pay damages, was inapplicable to the facts in Crescent upon much the same ground as that expressed in Southwestern Sugar & Molasses Co., Inc. v. River Terminals Corp., 1959, 360 U.S. 411, 79 S.Ct. 1210, 3 L.Ed.2d 1334. We quoted from that cáseas follows:

If the peculiar hazards involved in towing a barge supplied by the shipper are great, and the methods of guarding against those hazards are uncertain, it may be that in an area where Congress has not, expressly or by fair implication, declared for a particular result, the federal courts should creatively exercise their responsibility for the development of the law maritime to fashion a particularized rule to deal with particularized circumstances. (Court’s emphasis)

303 F.2d at 246. We then concluded in Crescent

* * * that, under all the circumstances of this case, the Bisso rule is not applicable to prevent Dixilyn from indemnifying Crescent against third-party claims based on Crescent’s negligence or to prevent Dixilyn from binding itself to afford Crescent the benefit of Dixilyn’s liability insurance.

On certiorari, the Supreme Court found that this Court’s holding in Crescent was squarely in conflict with Bisso and that our attempt to distinguish Crescent “because the peculiar hazards of towage and other factors” brought it within the ambit of Southwestern Sugar was invalid. The Court pointed out that “Southwestern Sugar is not applicable here, for in that case the Court merely preferred to give the Interstate Commerce Commission an opportunity to rule on an exculpatory clause which was a part óf a tariff filed with the Commission.” Dixilyn, supra, 372 U.S. at 698. Mr. Justice Harlan’s concurring opinion highlighted the holding in Dixilyn: “Certainty in the law governing commercial transactions of this kind is an overriding consideration which would not be promoted by opening the Bisso rule to indeterminate exceptions, in instances where, unlike Southwestern Sugar, no functions of a regulatory agency are involved.” Id. at 698.

It would seem clear from Dixilyn that “peculiar hazards of towing” and similar “indeterminate exceptions” contained in exculpatory clauses cannot be utilized to undercut the adjuration of Bisso. But that is not this case.

Here there was a fair, arm’s length negotiation culminating in a towing agreement which neither by indirection nor otherwise relieves the tug owner or the towboat of its liability to the barge owner as the result of the towboat’s negligence. The barge owner could have sued the tug owner if the insurance underwriters had, for whatever reason, failed to pay. Indeed, it is admitted that the tug owner is liable for damages sustained as the result of loss of use of the barge, as well as any other losses not covered under the policy.

Under the circumstances of this case we must determine if the Bisso doctrine is so encompassing that in instances of fair dealing, with no anti-competitive forces at work, the parties to a towing contract cannot agree to include an insurance clause and thereby reduce the towing rate while not affecting the rights of the tug and barge inter se, or eliminate the clause and accomplish the towing at a higher rate. We are of the view that Bisso contemplated no such expansive interpretation.

The simplistic, syllogistic approach of the barge owner is inviting because we agree with the major premise that Bisso condemns exculpatory clauses that relieve the legal liability of a negligent tower. But the minor premise that compulsory insurance clauses are exculpatory per se in the context of Bisso, is unsound. Such a doctrinaire interpretation is not supported by the reasons undergirding Bisso.

This Court considered an analogous situation in Fluor Western, Inc. v. G. & H Offshore Towing Co., 5 Cir. 1971, 447 F.2d 35, cert. denied, 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793. There the tower was sought to be held for the loss of the cargo resulting from the sinking of the barge being towed. The underwriters who insured the cargo paid the owner for its loss and thus the underwriters were the real party in interest. The tower urged that by virtue of a clause in the towing agreement between the tower and barge owner the cargo owner was required to carry full insurance on the cargo with a waiver of sub-rogation. The plaintiff countered that the contractual provision was meant to absolve the tower of responsibility for negligence and was void under the principles established in Bisso and Dixilyn. We rejected this argument. Because of the pertinency of what was there said, it bears repeating here:

It appears that the overriding consideration in Bisso was the supposed inequality of the bargain position of the tug industry and those in need of its services. The other reason stated in Bisso for the rule there announced —to discourage negligence by making wrongdoers pay damages — was, I believe, of limited importance and merely served to support the decision, for, in absence of an unconscionable disparity in bargain positions, contracting parties should be free to distribute liabilities and costs as they wish.
* * * * * *
* * * Unlike the situation in Bisso, the plaintiff did not waive its right to proceed against any party responsible for the cargo loss. Although the cargo owner, pursuant to the contract, procured insurance fully covering the cargo being shipped, and presumably was reimbursed by insurance proceeds for the loss incurred, it nevertheless had the right to proceed against the barge, tug and their owner, charterers and operators if the insurance underwriters had, for whatever reason, failed to pay. With respect to the rights of the cargo owner, the carriage contract did not exculpate these potential defendants, protect them from suit by the cargo owner, or fix their respective liabilities, ■Jr #
* * * Actually, no rights at all were waived by the carriage agreement itself. The cargo owner agreed to procure cargo insurance with a waiver of subrogation clause, but the insurance underwriters’ subrogation rights were waived only by a later and independent agreement reached between the cargo owner, as the insured, and the underwriters. It is not alleged that the execution of the carriage agreement bound any insurance underwriters in any manner at all. It is difficult to imagine how any monopolistic condition that may have existed in the tug and barge industry could have been exploited to compel the underwriters to agree to waive their rights of subrogation. * * *
* * * The only thing that could conceivably have been adhesive in the towage contract involved here would be the cargo owner’s agreement to pay the premiums of the insurance that was to be procured. I do not think, however, that the public policy expressed in Bisso requires that any particular party should necessarily bear the cost of such insurance, particularly when the party that does bear the cost had an insurable interest in the cargo and is to be the named insured, as is the case with the plaintiff in this suit. See, Great American Insurance Co. v. Gulf Marine Drilling No. 1, 302 F.2d 332 (5th Cir. 1962).

The barge owner acquiesces in the holding of Fluor Western only so far as it was predicated on the finding that the insurance company was the real party in interest as subrogee and, having acted voluntarily as a non-party to the towing agreement, was bound thereby. The holding that the clauses were not exculpatory and hence not invalid is denigrated by barge owner as dictum. Moreover, it is argued, that since the insurer waived subrogation it, as the real party in interest, could not later pursue the tower. Finally, both the barge owner and the district court draw a distinction between Fluor Western and this case because that decision involved a cargo loss, while here the loss of the barge itself is of concern.

We can discern no basic difference between Fluor Western and this case. The fact that it involved cargo insurance and cargo damage rather than barge insurance and barge damage is a distinction without a difference. Fluor Western, as does the instant case, involved a towing agreement, and simply because cargo laden aboard the tow was damaged rather than the tow itself can conceptually make no difference. Likewise, the record in this case shows indisputably that the barge underwriters have paid at least $120,000 and thus must be the real party in interest. We confess our inability to comprehend barge owner’s rationale of Fluor Western, that if the towing agreement provides for a waiver of subrogation, which is ipso facto invalid under Bisso, and the barge’s underwriters have not waived subrogation, it or the barge may pursue the tower, but notwithstanding the invalidity of the towing agreement provision, if the barge’s underwriter has waived subrogation it may not pursue the tower. Said another way, if the barge complies with its contractual obligation to effect a waiver of subrogation it may not sue the tower, but if the barge breaches its contractual obligation to effect a waiver of subrogation it is free to pursue the tower.

We are of the view that the ratio deci-dendi of Fluor Western is fully applicable and controlling in this case. We thus deem it inutile to consider eases involving different legal principles concerning common carriage and the relationship between carriers and shippers.

We conclude that the provision in the towing agreement requiring each party to fully insure its vessel, to effect a waiver of subrogation, and to name the other party as an additional insured is not an exculpatory clause of the type invalidated in Bisso and Dixilyn.

Reversed.

GODBOLD, Circuit Judge

(specially concurring):

Because we struggle in this ease, as others have, to accommodate Bisso to the context in which towboat and barge seek to decide by contract who will bear the cost of insurance, it may be useful for me to state in a separate opinion my views and process of reasoning. If free to do so, I could with comfort hold that, at least absent monopolistic compulsion, towboat and towed vessel can bargain as they wish over both allocating the cost of insurance and concomitantly releasing from liability for negligence.

But the fly in the ointment is Crescent Towing & Salvage Co. v. Dixilyn Drilling Co., 372 U.S. 697, 83 S.Ct. 967, 10 L.Ed.2d 78 (1963), a per curiam decision which reversed, citing Bisso, the decision of this court, 303 F.2d 237 (C.A.5, 1962). The clause involved stated:

It is particularly understood and agreed that you are authorized to and by this agreement do release and relieve us from any liability for account of your underwriters and that any damage claims urged by third parties as well as any claim which may be urged by virtue of damage to the drilling rig in the course of the towage shall be for your account and for the account of your underwriters.
It is further understood that the amount of the insurance protection which you have in force equals the value of the hull of the barge as to hull insurance and amounts to four million dollars as to third party claims.

The Supreme Court treated this as “a contract which exempts the tower from liability for its own negligence” in violation of Bisso. In essence Dixilyn (towed) agreed to indemnify Crescent (towboat) for third party claims arising from Crescent’s negligence. It appears to me that the agreement did not contemplate that the liability to third parties would ultimately rest on Dixilyn, at least where, as was the case, the liability did not exceed $4,000,000. At first glance this looks about as much like an insurance clause as does the present contract. My Brother Dyer’s distinction is that the Twenty Grand contract does not “relieve the tug owner or the towboat of its liability to the barge owner as the result of the towboat’s negligence,” since the barge could sue the tower if the insurer fails to pay.

I believe this distinction is sound. It is not simply one between situations where the tower remains liable and upon the happening of certain contingencies will have to pay and situations in which the tower has attempted to completely eliminate his liability. The contract in Crescent Towing related to third party claims, and the tower’s liability to third parties could not be affected by an agreement between the tower and the barge — if the barge or its insurers failed to pay, the third party could go against the negligent tower. Rather the distinction is between contracts by which the barge agrees to assume liability for the towboat’s negligence and contracts by which the barge simply agrees to provide an insurer to protect the towboat from some of the financial consequences of liability. In Crescent Towing the barge agreed to indemnify the tower against the tower’s own negligence and coupled that agreement with a commitment to procure insurance assuring the barge’s ability to do so. In the instant case the barge agreed to procure insurance naming the tower as an assured and thereby to provide a third party, the insurer, who would protect the tower from the consequences of its own negligence. The difference between the two cases may initially appear slight, but it is functionally important.

In agreements of the Crescent Towing type, where the barge acts as the indem-nitor and procures insurance primarily to protect itself, it is possible that the barge’s agreement to indemnify may be more inclusive than the insurance coverage which the barge agrees to procure and that, consequently, the barge will be liable for damages in excess of the insurance coverage or even for the entire amount if the insurer is defunct or will not pay. The risk that barge owners might accept Crescent Towing-type clauses in the erroneous belief that they are accepting only the responsibility for procuring insurance may perhaps justify applying Bisso to void such agreements. But in the present agreement this risk is absent, because the responsibility for any liability beyond the insurance which West India Carriers contracted to procure remains on Twenty Grand, the tower. Thus to the extent that one of the Bisso rule’s functions is to protect the barge owner, the rule plays a part in Crescent Towing which it cannot play here.

Beyond protecting barge owners, Bis-so contains a second avowed policy prong, “to discourage negligence by making wrongdoers pay damages.” Neither Bisso nor Crescent Towing, dealing as they did with situations in which a barge rather than a third party insurer had agreed to be the indemnitor, addresses the issue of the impact of liability insurance upon this analysis. The Bisso statement does not and never has meant literally what it says. If it did then Bisso would bar the tower from avoiding responsibility for paying damages from his own pocket through the means of purchasing his own liability insurance. Although for a time in the early decades of this century judges in some dry land jurisdictions were inclined toward invalidating liability insurance contracts as contrary to public policy, we have long since decided that the benefits afforded by the availability of such insurance outweigh whatever weakening of the deterrent impact of negligence law may flow from that availability. The discouraging of negligence to which Bisso refers must, therefore, relate in the present case to the incentive to careful operation provided by the threat of increased insurance premiums which would result from careless operation, and it is relevant to inquire whether the contract in issue will significantly reduce that incentive. I believe that it does not. Barge owners, when confronted with proposed towage contracts under which they agree to procure insurance protecting the tower, will consider how much that insurance will cost and will take the cost into account in selecting a tower. Whether by purchase of a special policy or extension of the barge owner’s existing policy to a tower (as appears to be the case here) the barge owner can anticipate that sooner or later his pigeons will come home to roost. If he furnishes insurance to careless towers, he can expect an ultimate, if not an immediate impact upon his premium rates. Absent monopoly in the towers’ market, barge owners will have a choice of towers, and, other things being equal, they will avoid the tower who is a bad negligence risk, and competition among towers will provide the incentive for safe operation that would be provided by the threat of increased premiums to the tower itself.

Additionally, to find this contract invalid as against a public policy of discouraging negligence would, for no apparent reason, be a result at odds with the analysis employed in similar cases where shippers extend to carriers the benefit of the shippers’ insurance on goods shipped. In Great Lakes Transit Corp. v. Interstate S.S. Co., 301 U.S. 646, 57 S.Ct. 915, 81 L.Ed. 1318 (1937), the court had before it an insurance contract by which a shipowner had insured against damage to cargo which it carried as a common carrier. The cost of the insurance was included in the rate charged shippers. Through the negligence of the shipowner, cargo was damaged. The insurance company paid the shippers and thereafter sought to recover part of its payment from the shipowner on the theory that even though the insurance named the shipowner as an assured, the insurance was ultimately paid for by and for the benefit of the shippers and, therefore, the insurer was subrogated to the rights of the shippers against the carrier. The court rejected this argument noting,

The underwriters seek to sustain the decree by invoking the doctrine of subrogation, but the equity of subrogation invests the underwriters with the rights of the assured against third persons [citations omitted], not with a right to override its own obligation to the assured. Thus, when a bill of lading provides that in a case of loss the carrier, if liable therefor, shall have the full benefit of any insurance effected upon the goods, the provision limits the right of subrogation of the insurer, upon payment to the shipper, to recover over against the carrier. [Citations omitted.] Such a clause giving the carrier the benefit of insurance effected by the shipper is valid “because the carrier might himself have insured against the loss, even though occasioned by his own negligence ; and if a shipper under a bill of lading containing this provision effects insurance and is paid the full amount of his loss, neither he nor the insurer can recover against the carrier.” Luckenbach v. W. J. McCahan Sugar Ref. Co., 248 U.S. 139, 146, 39 S.Ct. 53, 54, 63 L.Ed. 170, 174, 1 A.L.R. 1522.

301 U.S. at 654, 57 S.Ct. at 918, 81 L.Ed. at 1323-1324. The instant ease appears to present a similar situation. The barge was to procure insurance and extend the benefit of that insurance to the towboat by having the tug and its owner named as an additional assured and by obtaining a waiver of subrogation from the barge’s insurer. Had it done so and had the insurer then sought recovery against the towboat on the theory that such an extension of insurance benefits was invalid under Bisso, I believe that we could properly refuse to allow recovery on the strength of the analogy to a shipper’s extending the benefits of his cargo insurance to a water carrier. Indeed, we have previously refused to allow a cargo insurer to obtain recovery from a towboat where, pursuant to a contract with the towboat, a cargo owner obtained cargo insurance containing a waiver of subrogation. Fluor Western, Inc., v. G & H Offshore Towing Co., 447 F.2d 35 (C.A.5, 1971). I find no reason to treat the instant case as distinctive because it involves damage to a barge rather than damage to cargo. Nor do I believe that this barge or its insurer should be rewarded because the barge failed to perform its contractual obligation.

In Crescent Towing, Justice Harlan, while expressing his conviction that Bis-so was wrongly decided, cautioned against the hazard of creating indeterminate exceptions to the Bisso rule. Certainty in rules of law governing commercial transactions is clearly desirable. Our decision in this case is consistent with that goal. If pushed to extremes, the deterring negligence rationale of Bisso would demand that towers be barred from insuring themselves against negligence at all. But Bisso has never been so interpreted, and the question, therefore, is not whether to draw a line at all but where to draw it. I believe that the line can, consistent with reason, precedent, and existing business practices, be drawn between valid agreements, such as the one here, which operate purely to allocate the responsibility for obtaining insurance, and agreements, such as the one condemned in Crescent Towing, which go further and seek to shift to the barge the primary responsibility for damage not covered by insurance.

      . The barge owner’s insurance company has reimbursed the barge owner $120,000 and is, at least to this extent, the primary party in interest.

      . The towing agreement also contained the following clause:
      Anything to the contrary notwithstanding, [n] either Owner, the vessel, its Master or crew shall be liable for loss of or damage to the cargo, the barge or equipment aboard the tow, however arising, including but .not limited to errors in navigation or management of the vessel, fire or explosion, or defect in the hull, machinery and equipment of the vessel or unseaworthiness thereof, or the negligence of the Owner or otherwise. The Principal agrees to protect, defend, hold harmless, and indemnify Owner, the vessel, its Master and crew of and from any claims, suits, actions, liability, loss or damage to the cargo, the barge or equipment aboard the tow, however arising, whether through errors of navigation or management of the vessel, fire or explosion, defect in the hull, machinery and equipment of the vessel, or the unseaworthiness thereof, or the negligence of Owner or otherwise.
      The tug owner disclaimed any reliance on this clause as being clearly within the reach of Bisso and offered to pay to barge owner whatever damages were not validly collected from barge owner’s ' underwriters. Hence the only issue before the district court, after negligent towage was found, was the legal effect of Clause 3 of the towing agreement. This was the sole issue argued on appeal.

      . The barge owner’s hull policy provided: “The assured shall not be prejudiced by reason of any agreement limiting or exempting the liability of tugs and/or towboats and/or their owners when the assured, . . . accepts such contracts in accordance with the established local practice.”

      . The word “compulsory” as used to describe the insurance clause was coined by proctor for the barge owner as a word of art to differentiate the insurance clause sub judice from clauses giving the benefit of voluntary insurance. It is not used to demonstrate or imply that the barge owner is under any compulsion to obtain insurance without waiver of subrogation.

      . Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955).

      . Even where the tower lias monopoly power, it is by no means clear that Bisso serves much purpose. To the extent that the tower has such power he has the ability to pass on to the barge in the form of an increase in price his cost of insurance. Thus, preventing the tower from contractually assigning to the barge the responsibility for obtaining insurance may accomplish no change in payor but only a transformation in the form in which the barge pays for the insurance — price for towage rather than payments to the insurance company.

      . See, e. g., Coffman v. Louisville & N. R. Co., 184 Ala. 474, 63 So. 527 (1913); Employers’ Liability Assur. Corp., Ltd. v. Kelly-Atkinson Const. Co., 182 Ill.App. 372 (1913); Aetna Life Ins. Co. v. Week, 163 Ky. 37, 173 S.W. 317 (1915); Standard Life & Acc. Ins. Co. v. Bambrick Bros. Const. Co., 163 Mo.App. 504, 143 S.W. 845 (1912); In re Aldrich, 86 Vt. 531, 86 A. 801 (1913). See generally, W. Prosser, Handbook of the Law of Torts 542-543 (4th Ed. 1971).


author: AINSWORTH, Circuit Judge:

text:
    PORT ARTHUR TOWING COMPANY, Plaintiff-Appellee, v. OWENS-ILLINOIS, INC., Defendant-Appellant.
    No. 73-1870.
    United States Court of Appeals, Fifth Circuit.
    April 12, 1974.

      William E. Shaddock, Oliver P. Stockwell, Lake Charles, La., for defendant-appellant.
    Everett R. Scott, Jr., Lake Charles, La., for plaintiff-appellee.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   AINSWORTH, Circuit Judge:

In this case a declaratory judgment is sought by Port Arthur Towing Company [PATCO], the lessee-assignee and successor to the original lessee of a tract of land in Calcasieu Parish, Louisiana, against Owens-Illinois, Inc. [Owens], lessor-vendee and successor in title to the original lessors. PATCO asked the court to declare that the lease was in full force and effect. Owens filed a counterclaim for rent allegedly due by plaintiff. The district judge held that PATCO was the owner of all rights emanating from the original lease agreement of October 19, 1953, and declared the lease to be valid and binding. The judgment denied Owens’ counterclaim for rent.

Owens contends on appeal that the lower court erred (1) in reversing a finding of an ultimate fact previously determined by valid and final judgment in the Louisiana state courts between the same parties, and (2) in failing to find that plaintiff owed additional rent of $24,000 for a five-year sublease, the nonpayment thereof having thus terminated the lease.

We find no error in the findings or conclusions of the district court and consequently affirm.

On October 19, 1953, Stanford L. Walters and Mary P. Leveque leased to Cal-casieu Ship Building Corporation a tract of land containing 20 acres situated in Calcasieu Parish, Louisiana, for the consideration of an annual rental of $2,400. The lease was timely recorded' in the Conveyance Records of Calcasieu Parish. The original agreement contained certain provisions which have become the subject of controversy between Owens, the present lessor-landowner, and PAT-CO, lessee, resulting in a suit in a Louisiana state court and finally the present suit in federal court. The pertinent provisions of the lease follow:

This lease shall be for a total term of ten years from the date hereof and for a valuable consideration hereby acknowledged to have been received the Lessor hereby grants to Lessee the option to renew this lease for five additional periods of ten years each beginning at the expiration of the first total term of ten years under the same terms and conditions and for the samé rent as agreed to herein for the first ten years, provided Lessee shall give to Lessor written notice at least thirty days prior to the expiration of each ten-year period of its decision to exercise its said option to renew this lease for each additional ten-year period. .
The rent to be paid by Lessee to Lessor is the sum of $2,400.00 per year . • . . .
If Lessor decides during the initial terms of this lease, or any renewal thereof, to sell the subject land, and a legitimate offer has been received therefor from some financially responsible third party or parties, the Lessor shall give Lessee written notice of the name of said proposed purchaser and the consideration and terms of said offer and Lessee is hereby given an option to buy said land for said consideration and on the terms of said offer at any time within thirty days from receipt of said written notice.
Lessee is specifically granted the right to sublet or sublease or assign the lease and any and all rights hereby granted in whole or in part. In the event, however, that Lessee sublets or subleases the subject property, or any part thereof, for more than $2,400.00 per year, then Lessor will receive one-half of any said amount or amounts over $2,400.00.
This lease specifically, but not by way of limitation, shall be binding upon any person or persons, actual, fictitious, and/or legal entities who may succeed to or acquire any of the rights or liabilities of the parties hereto.

The lease further gave lessee the right to construct shipyard facilities on the property and at the expiration of the lease to remove all such improvements from the land, which was acknowledged by lessor to be vacant.

Upon acquiring the lease, the original lessee constructed a shipyard facility on the land as contemplated by the contract. Approximately ten years later, on April 22, 1963, the lease, having passed through the hands of several transferees, was acquired by plaintiff PATCO, and on August 20, 1963, PATCO renewed the lease for a ten-year term. Shortly thereafter, on January 1, 1964, PATCO subleased the land and improvements thereon to its sister corporation, Fredeman’s Calcasieu Lock Shipyard, Inc. [Fredeman’s] for a five-year term at a monthly rental of $1,000.

On November 19, 1964, the Leveque heirs, lessors of the leased property, notified the sublessee Fredeman’s that an option to purchase the property for $100,000 cash had been received from a named financially responsible third party, and accordingly were thereby giving written notice so that lessee might exercise its option within thirty days to buy the land if it so desired. On the same day W. F. Fredeman, president of both PATCO and Fredeman’s, who with his family owned all the stock in both corporations, replied that Fredeman’s was not interested in exercising the option and was therefore waiving that right. Under the terms of the lease PATCO as lessee, and not sublessee Fredeman’s, was entitled to such notice. No reply was made by PATCO until October 9, 1965, when W. F. Fredeman replied on behalf of that corporation. The letter in effect challenged the written notice given to Fredeman’s as insufficient under the terms of the lease to cancel any rights of PATCO. In the interim, however, lessors had granted the option to the party named in its letter of November 19 to purchase the property. Title to the property was conveyed to defendant Owens on March 2, 1966. The instrument transferring title to Owens recited that the property was affected by the 1953 lease and that the sale was made contingent upon vendee assuming the obligations of lessor under the original lease. Subsequently Owens informed Fredeman’s that future rentals were payable to it. Thereafter, on October 14, 1966, PATCO tendered a cheek for rent in the sum of $2,400 to defendant. The check, however, contained restrictive terms stating that “payment is made with full reservation of rights of Port Arthur Towing Company to set aside and have sold to it the property described in the lease dated October 19, 1953 owned by Port Arthur Towing Company.” Owens returned the cheek on October 27, 1966 and informed PATCO that it was in default.

On November 2, 1966, PATCO filed suit in the Fourteenth Judicial District Court of Louisiana, which suit as amended sought judgment “decreeing specific performance of those option and first refusal rights stipulated in such lease agreement [the original agreement of October 19, 1953].” Defendants filed exceptions of no right and no cause of action and pleas of prescription and laches. The exception of no right of action was sustained by the state trial judge which was affirmed on appeal: Port Arthur Towing Company v. Leveque, La.App., 3 Cir., 1971, 247 So.2d 595. PATCO later filed the present suit seeking a declaratory judgment “declaring that the contract of lease [the original agreement] is now in full force and effect and binding upon Owen-Illinois, Inc., as Lessor-vendee of and successor in title to the original lessors, and Port Arthur Towing Company, as Lessee-assignee of and successor to the original lease in 'all respects as originally written [except that the paragraph relating to the option to purchase is of no force and effect as to the acquisition by Owen-Illinois, Inc.].” Judgment was rendered for PATCO from which Owens appeals.

Appellant contends that the lease terminated either on November 2, 1966, when PATCO filed the state court suit allegedly attacking the title of Owens, or on October 19, 1966, the anniversary date of the lease, for failure of PATCO to pay the full rent.

It is conceded by appellant that the basic facts, consisting almost exclusively of deeds, letters and other documentary materials, are not in dispute. Appellant contends that PATCO, having been unsuccessful in Louisiana state court, has now filed this action in federal court in an attempt to retry the factual issues already adjudicated in the state court action, but is prevented from doing so under. the doctrine of collateral estoppel. Appellant argues that the ultimate fact found by the state court was that plaintiff was seeking not to exercise its option, but to set aside the sale to Owens and its predecessors in title. Appellant further contends that PATCO’s state court suit constituted a denial of its landlord’s title, thereby severing the relationship between lessor and lessee under the holding by the Louisiana Supreme Court in Thayer v. Waples, 26 La.Ann. 502 (1874). Thus, says appellant, the federal district judge’s finding that PATCO’s state suit sought only to exercise an option to purchase the leased property improperly reversed the ultimate fact found by the state court.

We disagree with this interpretation of the state court’s findings. A reading of the decision by the Louisiana appellate court refutes appellant’s contention that PATCO filed its suit not to exercise its option to purchase but to set aside the sale by lessors to Owens. The opening sentence of the Louisiana state court opinion characterizes the suit as a “suit against the lessors and, their successors for specific performance of the alleged obligation of the lessors to sell the leased premises to the plaintiff under a purchase option contained in the original land lease.” Port Arthur Towing Company v. Leveque, La.App., 3 Cir., 1971, 247 So.2d 595, 596. Following a detailed statement of facts, and as a preface to its legal analysis of the nature and effects of a bill for specific performance, the court again states, “This is a suit for specific performance.” 247 So.2d at 599. Again, the court makes it clear that the rights relinquished by PATCO are the rights to exercise the option to purchase: “In view of the pleadings and evidence and the chronology of events it is evident that the plaintiff forfeited any rights that it may have had under the lease agreement to purchase the subject property.” 247 So.2d 600.

We agree with the federal district judge below that plaintiff in its prior state action sought only to exercise an option to purchase the leased property, and that this cannot be construed as a denial of the validity of the lease or of the landlord’s title. Thayer v. Waples, supra, is inapposite. Likewise, under the circumstances present here, collateral estoppel is inapplicable. The only issue determined by the state court proceedings was that plaintiff asserted no right of action to compel specific performance under the option clause. The issue decided here by the district judge is a new one, not previously litigated, that is, that the original lease remains valid and binding between Owens and PATCO. For the foregoing reasons we find that decision to be correct.

Appellant’s second contention that the lease was dissolved because of PATCO’s failure to pay rent as required by the contract is based on two clauses in the lease agreement. The first provides for an annual rental of $2,400, and the second grants lessee the right to sublease but requires that “In the event, however, that Lessee sublets or subleases the subject property, or any part thereof, for more than $2,400.00 per year, then Lessor will receive one-half of any said amount or amounts over $2,400.00.” Appellant also asserts in its counterclaim that the amount due it as a result of appellant’s sublease to Fredeman’s at an annual rental of $12,000, is an additional $4,800 per year for the term of the sublease. The evidence shows that the improvements to the property, consisting of a valuable shipyard facility, were made by the original lessee and were the property of the lessee. When the sublease for $1,000 a month between PATCO and Fredeman’s was executed, the Board of Directors of the two sister corporations apportioned $200 to land and $800 to equipment. Appellant implies that this allocation by sister corporations, with identical members on their respective boards, was in effect a convenient method of avoiding paying additional rent required by the contract. There was evidence, however, to show that the apportionment of land rent and equipment was proper and reasonable. We cannot say the court was clearly erroneous in so concluding.

Affirmed.

      . The written instrument erroneously referred to a transfer of the “fee title” to the premises. This was not corrected until February 12, 1968 to reflect a transfer of the lease rather than the land. There is no suggestion, however, that PATCO was misled by what was apparently an inadvertent error. PATCO obviously considered itself the lessee as on August 20, 1963, four months after the transfer, PATCO notified the lessor, who was then Mary P. Leveque, that it was exercising its option to renew the lease for an additional ten years.

      . The same check was re-tendered by letter to Owens on November 8, 1966. Owens again returned the tender on November 11, 1966, taking the position the lessee was in default, that Owens was exercising its right under the lease to declare due and exigible all future unpaid installments, and its intention to seek a dissolution of the lease. On December 13, 1966, PATCO deposited the sum of $16,800, representing the accelerated rent due, with a depository bank and so notified Owens. On December 20, 1966, Owens informed PATCO that it was not accepting the deposit and considered the lease terminated.

      . Rule 8(c), Fed.R.Civ.P., requires that the defense of estoppel be affirmatively set forth in the pleadings. Appellant Owens failed to so plead, and the issue was not raised in the district court.

      . By amendment to its petition in the state trial court, PATCO deleted certain allegations of fraud by which it sought to set the various sales aside, leaving as the remaining issue the question of whether or not plaintiff was entitled to specific performance because of the option-to-purchase clause in the agreement. This issue was decided against plaintiff on defendant’s exceptions of no right of action. It was the only issue decided by the state court. See Port Arthur Towing Company v. Leveque, La.App., 3 Cir.1971, 247 So.2d 595 at 598 and 602.

      . The federal district judge accepted the general principle of Thayer, that the denial by a tenant of the title of his landlord, severs the relationship between them, but properly distinguished the case on its facts. Thayer was evicted by his landlord for failure to pay rent. He sued for wrongful eviction contending that Waples was not the owner of the property and therefore no rent was due him, thus repudiating the lease contract between them. In the instant case, PATCO continued to make attempted rental payments while litigating the matter in the state court. We agree that such action was not a repudiation of the lease but, to the contrary, an affirmation thereof. As the court below said in assessing plaintiff’s contentions in the state court, what PATCO was saying was: “You own this property; I have an option to purchase it on my recorded lease; I want the court to order you to recognize my rights and sell it to me.”

      . Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). See also James Talcott, Inc. v. Allahabad Bank, Ltd., 5 Cir., 1971, 444 F.2d 451, 458-459, in which we listed three traditional requirements for the application of the doctrine of collateral estop-pel, none of which is present here : “(1) [T]he issue to be concluded must be identical to that involved in the prior action; (2) in the prior action the issue must have been ‘actually litigated’ ; and (3) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment.”


author: GODBOLD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. C. B. DUKE, Jr., Defendant-Appellant.
    No. 73-1276.
    United States Court of Appeals, Fifth Circuit.
    April 12, 1974.
    Rehearing Denied May 8, 1974.

      Jack N. Price, Longview, Tex., for defendant-appellant.
    Roby Hadden, U. S. Atty., Dale Long, and Dennis R. Lewis, Asst. U. S. Attys., Tyler, Tex., for plaintiff-appellee.
    Before GODBOLD, DYER and GEE, Circuit Judges.
   GODBOLD, Circuit Judge:

The appellant was convicted of two counts of misapplication of bank funds and six counts of making false entries, while president of a bank in the town of Atlanta, Texas. The convictions must be reversed for improper cross-examination by the prosecution in an effort to impeach testimony concerning appellant’s reputation for honesty and integrity.

The defense put in issue the appellant’s reputation for honesty and integrity by introducing the testimony of Ransom C. Hardy, who was a resident of Atlanta and general manager of an oil, land and timber company and a director of the other bank in the town. Hardy testified to Duke’s good reputation for truth and veracity and as a peaceable and law abiding citizen. The government then advised the court that it intended to question any character (i. e., “reputation”) witness as to whether the witness had heard that defendant Duke took $7,500 from the (bank) account of George Eaves and did not return it to him. The trial judge took up the matter in chambers, where he required the Assistant United States Attorney conducting the trial to be sworn and to state the factual basis for asking the question. The basis described was that George Eaves had testified before the grand jury investigating charges against appellant Duke to the following effect. Eaves had relinquished his large safe deposit box in the bank of which Duke was president to make it available to a customer requiring a large box, and at that time Eaves had entrusted $5,400 in cash to Duke for safekeeping until another box was available. According to Prosecutor Long, Eaves told the grand jury that he and his wife asked several times for return of the money, that Duke refused to return it and admitted he had used it for his own benefit, that Duke stated to Eaves that “the money was as much his (Duke’s) as it was Mr. Eaves’, in view of the fact that he felt Mr. Eaves was concealing this money from the Internal Revenue Service.” On being cross-examined in chambers, Prosecutor Long acknowledged that he had in his file photocopies of a note from Duke to Eaves for $5,400 and a check of later date from Duke to Eaves for $5,400. Long acknowledged also that he was aware that other officers of the bank (one of them the chairman of the board) knew of the Eaves-Duke matter, and that Duke continued as president of the bank for nine months after the note was paid. Defense counsel pointed out to the court that there was a dispute whether the $5,400 was in fact a loan to Duke by Eaves.

After timely objections by the defense, the court permitted witness Hardy to be cross-examined by Long in the presence of the jury as follows:

Q. Mr. Ransom (sic), have you heard that Mr. C. B. Duke took $5400.-00, $5,400.00 from Mr. George (Pete) Eaves and refused to pay it back?
A. I don’t know anything about that. I never heard of it.
Q. Well, have you heard that he refused to pay the money back until the Chairman of the Board, Mr. T. L. Richey, forced him to do so ?
A. I never heard anything — first I have heard it mentioned.

The same questions were later asked by the prosecution of another reputation witness, Vasco Brabham, president of a savings and loan association in Atlanta, and he answered all in the negative.

It was reversible error to permit this cross-examination of the reputation witnesses. Our concern is with a body of law that the Supreme Court in the leading case of Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), has termed “archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other.” Id. at 486, 69 S.Ct. at 223, 93 L.Ed. at 179. The defendant may introduce evidence of his reputation (“character”), and such a witness not only may but must base his testimony upon hearsay, in effect summarizing what he has heard in the community. As a counterweight the prosecution may present contradictory witnesses as to defendant’s reputation and may subject defendant’s character witness to cross-examination as to the contents and extent of the hearsay on which he bases his conclusion, and he may be required to disclose rumors and reports that are current even though they do not affect his own conclusion. Id. at 477-479, 69 S.Ct. at 219-220, 93 L.Ed. at 174-175. The prosecution may not meet the defendant’s reputation evidence by cross-examination (or testimony of contradictory witnesses) directed to specific acts and occurrences. Evidence of reputation must be met by other evidence of reputation, else the trial degenerates into a confusing and distracting trial of innumerable collateral issues. Permitting this anomalous type of hearsay testimony is predicated upon the concept that the evidence “is not as to the personality of defendant but only as to the shadow his daily life has cast in the neighborhood.” Id. at 477, 69 S.Ct. at 219, 93 L.Ed. at 174. The prosecutor may, however, inquire into the character witness’ grounds of knowledge in order to test the underpinnings for his statement that the defendant enjoys a good reputation, that is, “to test the qualifications of the witness to bespeak the community opinion.” Id. at 483, 69 S.Ct. at 222, 93 L.Ed. at 177.

When witness A is called to support the character of B (either a witness or an accused), by testifying to his good reputation, that reputation must signify the general and unqualified consensus of opinion in the community (§§ 1610-1614 infra). Such a witness virtually asserts either (a) that the testifier has never heard any ill spoken of the other or (b) that the sum of the expressed opinion of him is favorable. Now if it appears that this sustaining witness knows of bad rumors against the other, then, in the first instance, his assertion is entirely discredited; while, in the second instance, his assertion is deficient in good grounds, according to the greater or lesser prevalence of the rumors. On this principle, then, it is proper to probe the asserted reputation by learning whether such rumors have come to the witness’ knowledge; for if they have, it is apparent that the alleged reputation is more or less a fabrication of his own mind.
It is to be noted that the inquiry is always directed to the witness’ hearing of the disparaging rumor as negativing the reputation. There must be no question as to the fact of the misconduct, or the rule against particular facts would be violated; and it is this distinction that the courts are constantly obliged to enforce ....

IIIA Wigmore, Evidence (Chadbourn ed.) § 988 at p. 912. From this right to inquire into grounds of knowledge comes the “have you heard” genus of questions such as were employed in this case.

In Michelson the Court recognized that there is a heavy responsibility on the trial judge to prevent misuse by defense or prosecution of the scope of examination permitted in this battle of hearsay. It approved a procedure under which the trial judge “took pains to ascertain, out of the presence of the jury, that the target of the question was an actual event, which would probably result in some comment among acquaintances if not injury to defendant’s reputation.” Id. at 481, 69 S.Ct. at 221, 93 L.Ed. at 176.(emphasis added). Hypothetically, if the inquiry is to be: “Have you heard that on Jan. 1, 1970, the defendant was arrested on a charge of embezzlement?”, the court ascertains that the prosecutor has reasonable basis to believe that defendant in fact was arrested on an embezzlement charge. If the existence of the event is disputed, then the trial should not degenerate into the collateral inquiry which the use of composite hearsay is intended to make unavailable.

In the present case the court employed the correct procedure. Since the factual basis for the proposed question was in doubt, the District Judge required a statement from the prosecutor, given outside the presence of the jury. But at the end of the in camera proceeding the doubt remained. As defense counsel told the court, Duke claimed that Eaves had lent him $5,400. The existence of the note and the later-dated cancelled check tended to support that interpretation of the Eaves-Duke transaction. The knowledge of other bank officers, and retention of Duke as president for nine months after the note was paid, tended to negate misconduct on Duke’s part. In its discretion the court could have gone deeper, giving the'prosecution further opportunity to show a factual basis for its proposed line of inquiry, but it could not stop in midstream and accept as the predicate for a counterattack on defendant’s reputation an event whose existence remained in such doubt.

Secondly, the transaction described by Eaves, and redescribed by Long, was essentially private in nature and, at least without further proof, was not shown to be the kind of occurrence likely to have become a matter of general knowledge, currency or reputation in the community. The most logical inference is to the contrary, since embraced within it was an alleged assertion by Duke that Eaves was himself violating the law by concealing the $5,400 from the Internal Revenue Service, a charge which Eaves and his wife could hardly be expected to release for general consumption. Prosecutor Long’s own knowledge came from the carefully guarded proceedings of the grand jury. The government’s assertion that the dealings with Eaves “necessarily affected Duke’s reputation in the community” has no evidentiary support.

Finally, we note an additional defect in the trial procedure. The Eaves-Duke transaction had been the subject of a voluntarily dismissed count of the same indictment under which appellant was tried and convicted. The potential for undue prejudice to the appellant from permitting a question based on such a closely-related and serious charge is obvious. Cf. Shimon v. United States, 122 U.S.App.D.C. 152, 352 F.2d 449 (1965). Moreover, having inquired whether the witness had heard that appellant accepted the money and refused to pay it back, and having elicited a negative response, the prosecutor pressed ahead and asked whether the witness had heard that appellant had refused to make repayment until forced to do so. By sharpening the inquiry and introducing an aspect of the alleged transaction not previewed at all in chambers, the prosecutor crossed the line between cross-examining so as to cast doubt upon a “character” witness’ ability to reflect accurately the community opinion of appellant’s reputation, and seeking affirmatively to prove to the jury the appellant’s alleged prior misconduct. See United States v. Franklin, 471 F.2d 1299, 1303-1304 (CA5, 1973).

Because of the possibility of retrial we point out that the court gave an erroneous version of the “-Allen” charge. This court has permitted continued use of the “Allen” charge. United States v. Bailey, 480 F.2d 518 (CA5, 1973) (en banc); United States v. Ozuna-Amador, 480 F.2d 610 (CA5, 1973). But in this case the court went beyond the limits permitted by Bailey, because, inter alia, it added this:

This issue has been tried out very ably by both sides, and all the available evidence has been adduced before you, and a decision has to be reached by a jury. You are that jury, and it seems to me that you ought to make every effort to arrive at a unanimous verdict and to reach a conclusion. (Emphasis added.)

While the last qualifying clause of the second sentence tended to ameliorate the earlier (italicized) words, we are unwilling to speculate on whether the jury was disabused of what it had just been told, which was that a jury was required to reach a decision and it was that jury.

Reversed and remanded.

      . In violation of 18 U.S.C.A. § 656.

      . In violation of 18 U.S.C.A. § 1005.

      . We attach no significance to the fact that the prosecutor, in orginally stating to the court what lie intended to cover in cross-examination, referred to $7,500 and to its coming “from the account” of Eaves. Those discrepancies were ironed out in the hearing in chambers at which Prosecutor Long testified.

      . Indeed, some courts have declined to permit such inquiry into arrest unless the prosecution has in hand official documents to support the existence of the event.

      . Our conclusion that this was the correct way for the District Court to proceed does not conflict with United States v. Franklin, 471 F.2d 1299 (CA5, 1973). There we held that the prosecution’s cross-examination of defendant himself, and its quizzing its own witnesses on the subject of his alleged prior acts, constituted a blatant attempt to prove up the prior misconduct. Hence we reversed, but in doing so approved a “have you heard” question directed, as in the present case, only at the defendant’s own reputation witnesses, even though the prosecution had not previously proved the existence of a factual basis in chambers. But the difference is that in Frcmlclin the defendant did not dispute the existence of a factual basis, and, indeed, events at the trial, though cause for reversal on other grounds, showed that he could not reasonably have disputed it.

      . Cf. Aaron v. United States, 397 F.2d 584 (CA5, 1968) (question held improper when its basis was an event wholly immaterial to the aspect of his reputation that defendant placed in issue; but error held harmless because other evidence made guilt clear).

      . The government had chosen to dismiss the count before trial because of statute of limitations problems.

      . To which the defense did not object.