author: EUGENE A. WRIGHT, Circuit Judge: KOELSCH, Circuit Judge

text:
    David J. BRANDENBURGER, for himself and all other persons similarly situated, Plaintiffs-Appellants, and Clyde E. Reighard, Plaintiff-Intervenor, v. Myron B. THOMPSON, Individually and in his capacity as duly appointed Director of the Department of Social Services and Housing of the State of Hawaii, Defendant-Appellee.
    No. 72-2224.
    United States Court of Appeals, Ninth Circuit.
    March 25, 1974.

      Koelsch, Circuit Judge, concurred specially and filed opinion.

      John S. Edmunds (argued), Mattoch, Edmunds, Kemper & Brown, Peter A. Lee, Legal Aid Society, Honolulu, Hawaii, J. Anthony Kline, Public Advocates, Inc., San Francisco, Cal., for plaintiffs-appellants.
    Robert P. Jaress, Deputy Atty. Gen. (argued), George Pai, Atty. Gen. of Hawaii, Honolulu, Hawaii, for defendant-appellee.
    Before KOELSCH, WRIGHT and TRASK, Circuit Judges.
   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Brandenburger appeals from a denial of his motion for reasonable attorneys’ fees following the entry of a consent judgment. We reverse and remand.

In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), the Supreme Court ruled unconstitutional state statutes denying welfare benefits to residents who had not resided within the state for at least one year immediately preceding their application for assitance. Two years later, in 1971, Hawaii established as a condition of eligibility for state welfare benefits a one-year durational residency requirement substantially identical to those struck down in Shapiro. Relying on Shapiro, Brandenburger brought this suit under 42 U.S.C. § 1983, for himself and all others similarly situated, challenging the constitutionality of the Hawaii statute and seeking injunctive relief against the defendant, the Director of Hawaii’s Department of Social Services. Prior to the entry of judgment, he also moved for an award of reasonable attorneys’ fees relying on the dual bases of Hawaii’s alleged bad faith and the “private attorney general” doctrine.

Prior to trial, the defendant abandoned his position and stipulated to judgment in favor of plaintiff. Plaintiff thereafter moved for attorneys’ fees, the question was reserved for decision and, after a hearing, the motion was denied. The district judge filed no written opinion, but his oral comments reveal two bases for his decision. First, he believed that he should not award attorneys’ fees to the plaintiff since the defendant had not acted in bad faith. Second, he believed that an award of attorneys’ fees to Brandenburger would be improper since he was represented, without charge, by the American Civil Liberties Union. *****Brandenburger’s appeal is from that portion of the judgment denying his motion for reasonable attorneys’ fees.

I.

Although American courts historically have not awarded attorneys’ fees to successful litigants without explicit statutory or contractual authority, see Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-718, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); Ehrenzweig, Reimbursement of Counsel Fees in the Great Society, 54 Calif.L.Rev. 792, 793 (1966), federal courts have equitable power, in the absence of legislation, to award attorneys’ fees in the interest of justice. Hall v. Cole, 412 U.S. 1, 4-5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-392, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Thus, even though § 1983 does not explicitly authorize an award of attorneys’ fees, the coui't’s equitable power may be invoked to make such an award in appropriate cases. See e. g., Sims v. Amos, D.C., 340 F.Supp. 691 (Three-Judge Court, per curiam), aff’d mem. Amos v. Sims, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972) (§ 1983); cf. Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) (§ 1982); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971) (§ 1982) And an award of attorneys’ fees assessed against a state official acting in his or her official capacity is not proscribed by the Eleventh Amendment. Sims v. Amos, supra, 340 F.Supp., at 694 n. 8.

We next consider whether the instant case is an appropriate one to exercise the court’s power to award attorneys’ fees. Plaintiff argues that it is, relying on two bases. First, he argues that Hawaii acted in bad faith. Second, he contends that attorneys’ fees should be awarded since he acted as a “private attorney general.” Since we agree with plaintiff’s latter contention, we need not reach and do not consider the issue of bad faith.

Under the “private attorney general” doctrine, an award of attorneys’ fees should be made to a litigant who (1) furthers the interests of a significant class of persons by (2) effectuating a strong congressional policy. The award serves the purpose of encouraging such public-minded suits. See Sims v. Amos, supra, at 694-695; Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970); Lee v. Southern Home Sites, supra; La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972). Under this doctrine, the good or bad faith of the defendant is irrelevant. Sims v. Amos, supra 340. F. Supp. at 694-695.

The instant case falls squarely within the ambit of the “private attorney general” doctrine. The plaintiff benefited a significant class, persons who are both potential welfare recipients and interstate travelers, by vindicating the federally protected right of interstate travel free from the forfeiture of welfare benefits. And, since § 1983 expresses a strong policy of vindicating federal constitutional rights against infringement by state officials, id. at 694, the plaintiff furthered congressional policy by challenging the Hawaii statute.

Because the plaintiff met the requirements of a “private attorney general,” the district court should have granted his motion for attorneys’ fees. While an award of attorneys’ fees is generally discretionary, see e. g., Hall v. Cole, supra, 412 U.S. at 15, 93 S.Ct. 1943, when a litigant qualifies as a “private attorney general,” “the award loses much of its discretionary character and becomes a part of the effective remedy a court should fashion to encourage public-minded suits . . . and to carry out congressional policy.” Sims v. Amos, supra 340 F.Supp. at 694, citing Mills v. Electric Auto-Lite Co., supra; Lee v. Southern Home Sites, supra. Cf. also, Anderson v. Pass Christian Isles Golf Club, Inc., 488 F.2d 855, 858 (5th Cir. 1974). Therefore, a remand on the issue whether an award should be given in this case is unnecessary.

II.

The district court’s second basis for denying plaintiff’s motion for attorneys’ fees was that they should not be awarded to a litigant who was represented without charge by a public interest group, here the American Civil Liberties Union. But the fact that the plaintiff was not obligated to pay the ACLU for its services is not a bar to an award of attorneys’ fees. All that is required is the existence of an attorney-client relationship. See Miller v. Amusement Enterprises, Inc., supra.

The policy underlying the “private attorney general” doctrine supports this conclusion. It is true that the prospect of attorneys’ fees does not discourage the litigant from bringing suit when legal representation is provided without charge. But the entity providing the free legal services will be so discouraged, and an award of attorneys’ fees encourages it to bring public-minded suits when so requested by litigants who are unable to pay. Thus, an award of attorneys’ fees to the organization providing free legal services indirectly serves the same purpose as an award directly to a fee paying litigant. See Note, Awards of Attorneys’ Fees to Legal Aid Offices, 87 Harv.L.Rev. 411 (1973). Of course, the award should be made directly to the organization providing the services to ensure against a windfall to the litigant. Miller v. Amusement Enterprises, Inc., supra 426 F.2d at 539.

In so far as the judgment of the district court did not award attorneys’ fees to the plaintiff, it is reversed. The case is remanded to the district court for a determination of the amount of a reasonable fee to be paid to the ACLU.

Reversed and remanded.

KOELSCH, Circuit Judge

(specially-concurring) :

The majority rests decision upon the easy pronouncement that “under the ‘private attorney general’ doctrine, an award of attorneys’ fees should be made to a litigant who (1) furthers the interests of a significant class of persons by (2) effectuating a strong congressional policy”. The many cases and commentators indicate no such general test, and I decline to uncritically join in giving it currency. Instead, in reaching my conclusion, I choose to follow a well established rule having clear guideposts.

The material facts are undisputed. The Legislature of Hawaii, at its regular session in 1971, enacted a bill which imposed a one-year durational residency requirement as a condition of eligibility for public assistance benefits provided by the State.

Shortly afterward Brandenburger, personally and as representative of a purported class, commenced this suit under 42 U.S.C. § 1983, against the State Director of the Department of Social Services, whose duty it was to administer the statute. Relying upon Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), he charged that the one-year requirement violated the equal protection provision of the Fourteenth Amendment; he requested in-junctive relief and, in addition, a monetary allowance for the services of his attorneys in the litigation.

At the request of the district judge, a three-judge court was duly created to hear and determine the cause; but before the matter went to trial, he issued an order to the defendant to show cause why, in the light of the rule in Shwpiro, defense of the action would not be frivolous. Defendant immediately capitulated and stipulated to entry of a judgment striking down the residency requirement ; however, the matter of attorneys’ fees was reserved for decision.

The judge denied the fees. His reasons are not entirely clear. He filed no written opinion, but his oral observations tend to indicate that decision was rested variously upon a supposed lack of power, a view that although power existed, no award should be made because no bad faith was shown, or a belief that an allowance of attorneys’ fees was largely impermissible where, as here, the litigation was prosecuted without charge to Brandenburger by the A.C.L.U. This appeal followed.

(1) Section 1983, upon which plaintiffs’ action was predicated, contains no provision for attorneys’ fees. However, this does not end the inquiry. The Supreme Court, only recently, in Hall v. Cole, 412 U.S. 1, 4-5, 93 S.Ct. 1943, 1945, 36 L.Ed.2d 702 (1973), has carefully pointed out that:

“[ajlthough the traditional American rule ordinarily disfavors the allowance of attorneys fees in the absence of statutory or contractual authorization, federal courts, in the exercise of their equitable powers, may award attorneys fees when the interests of justice so require. Indeed the power to award such fees ‘is part of the authority of the chancellor to do equity in a particular situation.’ Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939), and federal courts do not hesitate to exercise this inherent equitable power whenever ‘overriding considerations indicate the need for such a recovery.’ Mills v. Electric Auto-Lite Co., 396 U. S. 375, 391-392, 90 S.Ct. 616, 625, 24 L.Ed.2d 593 (1970).” (footnotes omitted)

And a number of federal courts have, and I think correctly, held that this “inherent equitable power” to award attorneys’ fees extends to suits under Section 1983 and related statutes. See Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971); Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972); Callahan v. Wallace, 466 F.2d 59 (5th Cir. 1972); Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972). See also, Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972). Thus I conclude that, to the extent judgment was predicated upon a lack of power, the court was in error.

(2) Whether attorneys’ fees should be awarded in a proper case, of course, in■volves a determination of the equities and, generally, an exercise of discretion.

“[I]t is unquestioned that a federal court may award counsel fees to a successful party when his opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Hall v. Cole, supra.

Here, the district court concluded that defendant had not acted in bad faith. Such a finding would perhaps be correct with respect to defendant’s conduct in the lawsuit itself. But the real inquiry, as Brandenburger argues, should be upon the defendant’s conduct which precipitated this litigation, with particular attention to the question whether Shapiro was dispositive and, if so, whether defendant’s failure to follow that decision constituted bad faith. I conclude that the answer is “yes.”

In Shapiro, the Supreme Court struck down statutes of several jurisdictions which contained requirements identical to those appearing in the Hawaii statute. The Court’s rationale, in substance, was that the durational residency requirement violated the Equal Protection Clause of the Fourteenth Amendment, because it created an impermissible classification between short- and longer-duration residents which was not justified by a compelling state interest. In answer to the defendant’s argument that discouraging the influx of potential welfare recipients protected the fiscal integrity of their welfare programs, and that this purpose constituted such a compelling interest, the Court responded:

“We do not doubt that the one-year waiting-period device is well suited to discourage the influx of poor families in need of assistance.
“An indigent who desires to migrate, resettle, find a new job, and start a new life will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute. But the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible.” 394 U.S. at 629, 89 S.Ct. at 1328.

The Court further emphasized:

“We recognize that a State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assitance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens.” 394 U.S. at 632, 89 S.Ct. at 1330.

I cannot accept the defendant’s argument that the justification for the Hawaii residency requirement differs in any material respect from that unsuccessfully asserted by the defendants in Shapiro. True, the Hawaii legislative committee stated that it “has . carefully considered [its] legislative findings in light of Shapiro v. Thompson * * * . If the sole purpose of the waiting-period requirement is designed to serve no greater purpose than to deter in-migration to Hawaii, it would seem, then, to be clearly unconstitutional.” However, the Committee, having paid lip-service to Shapiro, went on to say that:

“Your Committee looks upon the proposed residency requirement as a protective device not only to preserve the fiscal integrity of the State public assistance program, but as a source of relief upon the strain placed upon the State’s general revenues necessary to provide other essential services also.
* * * The Court in Shapiro does not define what constitutes a ‘compelling state interest.’ Even though, in our support of the residency requirements we are not endeavoring thereby to deprive the truly needy of shelter, food, and clothing necessary to sustain him through a temporary hardship during the waiting period. However, we are firm in our resolve that there should be exempted from the public welfare rolls those individuals who are capable of earning a living wage but scheme their way into the taxpayer generosity of our citizens.
It is essential that some means be found to decrease and reverse the rate of influx of transients who arrive in the State with insufficient funds with which to support themselves and who almost immediately, refusing to seek employment, turn to public assistance for support.
Your committee finds that the only effective method by which this can be accomplished is for the State to exercise its right to spend its financial resources as it sees fit by limiting general assistance benefits to those residents who have been in the State for a period of at least one year.”

In substance, this latter statement offered the same reasons in support of the Hawaii statute as those emphatically rejected by the Court in Shapiro. As in Shapiro, the Hawaii statute created what “in effect was [a] nonrebuttable presumption that every applicant for assistance in his first year of residence came to the jurisdiction . . . ” for the purpose of collecting welfare benefits to which he should not be entitled. Shapiro, supra, 394 U.S. at 631, 89 S.Ct. at 1330. If the State’s goal is deterring fraud, “it is unreasonable to accomplish this, objective by the blunderbuss method of denying assistance to all indigent newcomers for an entire year.” 394 U. S. at 637, 89 S.Ct. at 1333. Neither can the State’s other stated objective, to-wit, to encourage new residents to seek work, justify the residency requirement. 394 U.S. at 637-638, 89 S.Ct. at 1333.

Moreover, the fact should again be noted that the Hawaii statute was not a pioneer; nor could the defendant justify his refusal to honor claims in the reasonable belief that the statute was valid. In sum, the conclusion is manifest that defendant’s enforcement of the statute, in the face of Shapiro, constituted bad faith as a matter of law.

(3) That Brandenburger was under no legal obligation to pay his attorneys a fee for services is no bar to an award.

As the Fifth Circuit pointed out in Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970):

“What is required is not an obligation to pay attorney fees. Rather what — and all — that is required is the existence of a relationship of attorney and client, a status which exists wholly independently of compensation, as witness the effective service of counsel in the defense of criminal cases, the assertion of post-conviction habeas remedies, and the now widespread organized services on behalf of the poor.
Any other approach would call either for a fictional formal agreement by persons legislatively recognized as frequently unable to pay for such services . . . or a frustration of the congressional scheme to effectuate the policies of the Act through private suits in which, of course, an attorney is a practical necessity.” 426 F.2d at 539.

See also, Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971); Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971). Since it is the policy of the courts in such cases to grant fee awards, at least in part, to encourage the bringing of such lawsuits, I agree with the Fifth Circuit that it should be the attorney-client relationship, rather than any formal fee arrangements, which affords the basis for fees in an otherwise proper case. To prevent any unjust enrichment of a party, the court can always exercise its equity powers to “assure that the fees allowed are to reimburse and compensate for legal services rendered and will not go to the litigants . . . ” Miller, supra, 426 F.2d at 539.

In sum I conclude that the district court possessed the power to award counsel fees in this case; that the relationship between plaintiff and his attorneys was such as to permit the award of such fees; that the refusal to make an allowance constituted an abuse of discretion; that the judgment, so far as it disallows attorneys’ fees, should be accordingly reversed; and the cause remanded to the district court with directions to-determine a reasonable fee and to enter judgment for plaintiff.

      . It should be noted that the district court’s action -was. taken prior to the Supreme Court’s affirmance of Sims v. Amos, 340 F. Supp. 691 (Three-Judge Court, per curiam), aff’d mem., Amos v. Sims, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972). The district court did not consider the “private attorney general” doctrine.

      . The judgment was entered and the motion for attorneys’ fees was denied by a single-judge district court. Therefore, this court has jurisdiction on appeal pursuant to 28 U.S.C. § 1291. Because the plaintiff sought to enjoin enforcement of a state statute on constitutional grounds, a three-judge court was convened under 28 U.S.C. § 2282. The court then ordered the defendant to show cause why its defense was not precluded under prior decisions thereby eliminating the need for a three-judge court under Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). The state then stipulated to judgment. Thereafter, all actions taken by the court, including the entry of judgment, were by the district judge purporting to act as a single-judge district court. While there was no formal dissolution of the three-judge court, it is clear from the record that the court and the parties considered the case to have been remanded to the jurisdiction of the single-judge district court. We treat the case accordingly.

      . For analysis and criticism of this historical doctrine, see Stoebuck, Counsel Fees Included in Costs: A Logical Development, 38 U. Colo.L.Rev. 202 (1966) ; Kuenzel, The Attorneys’ Fee: Why Not a Cost of Litigation?, 49 Iowa L.Rev. 75 (1963).

      . It is clear, however, that federal courts do not have the power to award attorneys’ fees in every suit brought under a federal statute. See, e. g., Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967) (Lanham Act).

      . Two aspects of this case demonstrate the need for such an award. While the individual plaintiff vindicated the rights of a group of persons, his own monetary interest is not sufficiently large to provide an incentive to bring the suit. See Sims v. Amos, supra, at 695. Also, Hawaii’s attorney general, normally the person called upon to act pro bono publico, was unavailable as he was representing the defendant. But while these elements of the case render it acute for an award of fees, neither is necessary to invoke the “private attorney general” doctrine under its purpose. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct. 964, 19 L.Ed.2d 1263 (1968), and Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970) (state attorney general not aligned with defendant) ; A. C. Becken Co. v. Genex Corp., 314 F.2d 839 (7th Cir.), cert, denied, 375 U.S. 816, 84 S.Ct. 49, 11 L.Ed.2d 51 (1963), and other cases compiled in Comment, Attorneys’ Fees in Individual and Class Action Antitrust Litigation, 60 Calif.L.Rev. 1656, 1679 (1972) (attorneys’ fees awarded in antitrust suits to encourage private enforcement regardless of other financial incentives, including treble damages).

      . Miller involved a suit under the Civil Rights Act of 1964 where there is statutory authority for an award of attorneys’ fees. But the discussion of awards in cases where the litigant is not obligated to pay for the legal services is equally applicable here.

      . In determining what is a reasonable fee, the district judge might consider the factors referred to in recent cases from other circuits. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir., January 21, 1974) ; Lindy Bros. Bldrs. Inc. v. American R. & S. San. Corp., 487 F.2d 161 (3rd Cir. 1973).

      . Connecticut, Pennsylvania, and the District of Columbia.

      . Nor did it make any difference on the constitutional issue that the Hawaii welfare program was entirely state funded, rather than federally assisted. Pease v. Hansen, 404 U.S. 70, 92 S.Ct. 318, 30 L.Ed.2d 224 (1971) (per curiam) ; Cf. Edwards v. California, 314 U.S. 160, 175, 62 S.Ct. 164, 86 L.Ed. 119 (1941).

      . The then Attorney General, in fact, issued a legal opinion immediately prior to the time the bill was signed into law in which he expressly advised the Governor that the residency requirement was invalid under Shapiro.

      . Miller, it is true, arose under the 1964 Civil Rights Act, which includes a provision authorizing fee awards [42 U.S.C. § 2000a-3(b)], but that fact is irrelevant to the court’s discussion of fees to pro bono counsel inapplicable to this case. Section 1983, like the 1964 Act, has as its purpose the vindication of individual constitutional rights. Suits to enforce these rights under section 1983 can be brought only by individuals; there is no provision in the statute for government-initiated litigation. In many injunc-tive suits brought under the statute (where there is no possibility for damage awards to attract private attorneys), the plaintiffs are indigents, putting both private and pro bono lawyers in essentially the same situation— they cannot realistically look to their clients for payment for either legal services or other litigation costs. Whatever they might expect to receive as a fee for services would come only from the defendant, via court-awarded counsel fees.
      In this action, for example, the plaintiffs are welfare recipients. liad they entered into a fee arrangement either with a private or a “charity” lawyer, such arrangement could have been largely illusory, except to the extent that it might provide that counsel would receive whatever fees the court might award.

      . In light of my conclusion that the record manifests the defendant’s bad faith, I have no occasion to consider Brandenburger’s alternative theory for recovery of counsel fees, i. e., that Brandenburger acted as a “private attorney general,” vindicating strong public policy. See, e. g., Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) ; Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971) ; Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) ; La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972). Cf. Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) ; Callahan v. Wallace, 466 F.2d 59 (5th Cir. 1972) ; Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971) ; Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970) ; Hall v. Cole, 412 U.S. 5-6, n. 7, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973) ; Northcross v. Board of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973).


source: Caselaw Access Project

author: MATTHES, Senior Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Curtis Charles OVERSHON and John Overshon, Appellant.
    Nos. 73-1810 and 73-1811.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 15, 1974.
    Decided April 10, 1974.
    Rehearing and Rehearing En Ranc Denied in No. 73-1810 April 30, 1974.

      Charles L. Merz, and Burton C. Bernard, St. Louis, Mo., for appellants.
    Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before VAN OOSTERHOUT and MATTHES, Senior Circuit Judges, and LAY, Circuit Judge.
   MATTHES, Senior Circuit Judge.

Appellants, John Overshon and Curtis Charles Overshon, who are brothers, and five other persons, were named as defendants in a thirteen-count indictment filed in the United States District Court for the Eastern District of Missouri. Eleven of the thirteen counts alleged the commission of substantive offenses by one or more of the defendants. Relevant here is Count 3, which charged that appellant Curtis Charles Overshon, having previously been convicted of a felony, did knowingly receive, possess and transport in commerce a firearm in violation of 18 U.S.C. App. § 1202(a)(1).

Count 12 charged that defendants Sharp, Hodges, John Overshon and Curtis Charles Overshon entered into a conspiracy with diverse other persons unknown to the grand jury to engage in the business of dealing in firearms without a license, in violation of 18 U.S.C. §§ 371 and 922(a)(1). Twenty-four overt acts were allegedly committed in furtherance of the conspiracy. Count 13 also alleged a conspiracy, but since appellants were not named as conspirators in that count, we forego further discussion of the allegations of Count 13.

All of the charged parties except appellants pleaded guilty to at least one of the charges. All other charges against those pleading guilty were dismissed. Marvin Sharp, who the evidence demonstrates played a dominant role in overt acts forming the basis of the conspiracy, pleaded guilty to engaging in the business of dealing in explosive materials without a license in violation of 18 U.S. C. § 842(a)(1).

Appellants were tried jointly but were represented by different court-appointed counsel. Both were convicted on the conspiracy charge, and Curtis was found guilty of the substantive offense of receiving and possessing a firearm. These appeals are from the judgments of conviction.

The crucial issue for consideration is the sufficiency of the evidence to support the verdicts of the jury and the judgments entered thereon. Curtis mounts several attacks against the substantive charge and he joins with John in challenging the conviction under the conspiracy count. For reasons stated below, we affirm the conspiracy conviction of both appellants and reverse the substantive conviction of Curtis.

Preliminarily, and in view of the arguments urged upon us in support of the claim that the conspiracy convictions cannot stand, we review the principles which have been enunciated by the courts as guidelines in resolving whether the evidence is of sufficient quantity and quality to support a conviction under the conspiracy statute, 18 U.S.C. § 371.

Of course, the government carries the burden at trial of proving the existence of the conspiracy alleged. But the existence of a criminal conspiracy or a defendant’s participation in that scheme need not be proven by direct evidence. “A fraudulent scheme . may be and usually is established by circumstantial evidence; by inferences from the evidence of relationship of the parties and by overt acts, conduct and other probative circumstances.” Isaacs v. United States, 301 F.2d 706 (8th Cir.), cert, denied, 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58 (1962). See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Langel v. United States, 451 F.2d 957 (8th Cir. 1971); United States v. Hanon, 428 F. 2d 101 (8th Cir. 1970), cert, denied, 402 U.S. 952, 91 S.Ct. 1608, 29 L.Ed.2d 122 (1971); Jacobs v. United States, 395 F.2d 469 (8th Cir. 1968); Cave v. United States, 390 F.2d 58 (8th Cir.), cert, denied, 392 U.S. 906, 88 S.Ct. 2059, 20 L.Ed.2d 1365 (1968).

Moreover, once the government has established the existence of a conspiracy, even slight evidence connecting a particular defendant to the conspiracy may be substantial and therefore sufficient proof of the defendant’s involvement in the scheme. United States v. Hutchinson, 488 F.2d 484 (8th Cir. 1973); Langel v. United States, supra; United States v. Warner, 441 F.2d 821 (5th Cir. 1971); Cave v. United States, supra; Isaacs v. United States, supra; Hernandez v. United States, 300 F.2d 114 (9th Cir. 1962). See also United States v. Henderson, 446 F.2d 960 (8th Cir.), cert, denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971).

If a defendant’s participation in a conspiracy has been established, then the defendant is culpable for everything said, written or done by any of the other conspirators in furtherance of the common purpose of the conspiracy. United States v. Guy, 456 F.2d 1157 (8th Cir.), cert, denied, 409 U.S. 896, 93 S.Ct. 136, 34 L.Ed.2d 153 (1972); United States v. Francisco, 410 F.2d 1283 (8th Cir. 1969); Wangrow v. United States, 399 F.2d 106 (8th Cir.), cert, denied, 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270 (1968); Nassif v. United States, 370 F.2d 147 (8th Cir. 1966); 16 Am.Jur.2d Conspiracy § 14 (1964). Even if the defendant joined the conspiracy subsequent to its original formation, he may be held responsible for acts committed by other conspirators in furtherance of the conspiracy before he joined it. United States v. Cimini, 427 F.2d 129 (6th Cir.), cert, denied, 400 U. S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970); United States v. Cerrito, 413 F.2d 1270 (7th Cir. 1969), cert, denied, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495 (1970); Nassif v. United States, supra; 16 Am.Jur.2d Conspiracy § 15 (1964) .

Finally, we note the well-established rule that an appellate court considering the record in a criminal case on appeal from a jury verdict of guilty must view the evidence in the light most favorable to the verdict rendered. Likewise, the appeals court must accept as established all reasonable inferences from the evidence that tend to support the action of the jury. See, e. g., United States v. Francisco, supra; Jacobs v. United States, supra; Cave v. United States, supra; Koolish v. United States, 340 F.2d 513 (8th Cir.), cert, denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965) ; Thogmartin v. United States, 313 F.2d 589 (1963).

Mindful of appellants’ main claim that there was a lack of proof of the conspiracy and of their participation therein if it in fact existed, we review the evidence in some detail.

In January, 1973, two special agents of the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department, Robert Beattie and Bruce Bennett, began undercover work in Phelps County, Missouri, particularly in and near Rolla, the county seat, to investigate federal criminal activity. The agents rented a trailer in the Crestview Trailer Court, a facility located approximately six miles south of Rolla and managed by the above-named Marvin Sharp, one of the conspirators.

The government agents, through association with Sharp, gained his confidence, and in late January he offered to sell Beattie and Bennett guns and other items. This initial approach was followed on February 22, 1973, by a firm offer to the agents by Sharp in the presence of Betty Hodges, Lorraine Sharp (Marvin Sharp’s wife), and John Over-shon to sell them articles the group had obtained in a burglary.

Since Beattie and Bennett expressed interest, the entire group drove in three ears to a location on a secluded road several miles from the trailer park. There John Overshon and Marvin Sharp retrieved two guns from the car Overshon had been driving, and allowed the agents to inspect the firearms. Beattie negotiated with Marvin Sharp about the price of the guns and a television set, and the $125 agreed upon was tendered to Sharp in the presence of John Overshon. Both Sharp and Overshon stated to the agents that it had been a pleasure “doing business” with them. When Beattie and Bennett explained that they would be out of town for a few days, John Over-shon responded: “Well, we’ll probably have some more guns for you by the time you get back.”

On March 13, 1973, the government agents met with Marvin Sharp, Betty Hodges, and the Overshon brothers. John Overshon introduced Beattie and Bennett to Curtis Overshon for the first time. John reassured his brother by explaining, “These boys are all right. I’ve done business with them before.” Marvin Sharp advised the agents that Curtis and John were going to assist Sharp in obtaining seventeen guns for Beattie and Bennett, a deal which Sharp and the agents had discussed previously.

Two days later, on March 15, Beattie and Bennett again met Sharp and Hodges. Sharp stated that he had a “real load” of guns for the agents and noted that he would have to get a good price for the lot because there would be a four-way split of the proceeds. Sharp and Hodges then drove with the agents to the Overshon residence near Rolla. Passing by the Overshon home, Sharp wordlessly motioned to the Overshons from the car.

John and Curtis Overshon, occupying their own car, followed the auto containing Sharp, Hodges, and the agents to a shed in a wooded area outside Rolla. Everyone but Betty Hodges entered the shed. Inside, Sharp and Curtis Overshon uncovered a cache of eight firearms— five rifles, two shotguns, and a pistol, hidden underneath a sheet and debris in one corner of the shed. The guns were passed around and inspected by everyone.

Beattie and Sharp once again did the negotiating over price, and a sum of $545 was agreed upon between them. At that point Sharp turned to Curtis Overshon and asked, “Curt, this is our deal, does that sound all right to you?” To which Curtis replied, “Sure, that sounds good to me.” At this point John Overshon abruptly left the shed to stand outside, and appeared to the agents to be agitated. When Beattie later inquired of Sharp about John Overshon’s behavior, Sharp replied, “Oh, he didn’t like the price. But he’ll be all right once he gets his cut.”

On March 19, the agents happened to meet John Overshon in a pool hall in Rolla, Missouri. In the course of a general conversation, Overshon stated that he had spent all the money he had received from the “last deal” in attempting to repair his automobile, but that he had about 100 guns spotted around the county for eventual sale to the agents. A similar proposal was extended to the agents a week later by John Overshon, when he revealed his intention to steal guns from a local Western Auto store. Before such a scheme was .executed, all the defendants were arrested.

Appellants submit that the conspiracy conviction cannot be sustained because the government failed to prove that they engaged “in the business of * * * dealing in firearms” without a license as provided by 18 U.S.C. § 922(a)(1), and as charged in the indictment. 18 U.S.C. § 921(a) (11) defines a “dealer” as “any person engaged in the business of selling firearms or ammunition at wholesale or retail * * Simply stated, appellants contend that the record is barren of probative' evidence that they were personally engaged in the sales of firearms. They assert that the evidence conclusively shows that any and all sales were consummated solely by Marvin Sharp, that appellants were in reality innocent bystanders and did not in any manner participate in the sales of the weapons. The government proved without contradiction that neither of the appellants had been licensed to deal in firearms, but the appellants argue that in order to prove a conspiracy to deal in firearms without a license it was incumbent upon the government to prove also that Marvin Sharp was unlicensed.

This record dictates that we reject appellants’ theory. The fatal weakness of this defense lies in a faulty factual premise which appellants have espoused in brief and oral argument; namely, that only Marvin Sharp was actively involved in the two sales to Beattie and Bennett. Quite to the contrary, as shown above, the evidence viewed in the light most favorable to the government provides adequate proof that appellants were not only partners in the conspiracy and thus bound by Sharp’s actions, but they actively participated in the sales of the firearms to the government agents and received a part of the proceeds from the sales. To rehash the evidence would constitute an exercise in redundancy. It is sufficient to state in summary that there is substantial evidence from which the jury could reasonably conclude that the conspirators themselves did not consider Sharp to be the sole vendor of the firearms, although he was a key actor in the unlawful venture. Appellants were instrumental in the proscribed activities ; indeed, the guns sold in the second transaction were concealed in a building apparently under the control of appellants.

Nevertheless, the Overshons urge that, even if the government proved a criminal conspiracy, it did so with inadmissible hearsay and the convictions should therefore be reversed. The appellants contend that the district court allowed Beattie and Bennett to testify over objection at trial to certain prejudicial hearsay statements by Marvin Sharp, out of the presence of the Overshons, which served to inculpate John and Curtis as principals in the conspiracy.

The statements by Sharp about which the agents testified were indeed hearsay, but it is an accepted exception to the hearsay rule that out of court statements made by a conspirator can be admitted against both the declarant and his coconspirators if there is independent evidence of the conspiracy and if the statements were made during the pen-dency of the conspiracy in furtherance of the conspiracy itself. See, e. g., United States v. Richardson, 477 F.2d 1280 (8th Cir. 1973); United States v. Schroeder, 433 F.2d 846 (8th Cir. 1970), cert, denied, 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224 (1971); McCormick’s Handbook of the Law- of Evidence § 267 (1972); IV Wigmore on Evidence § 1079 (Chadbourne ed. 1972).

Here there was substantial independent evidence of the conspiracy, as developed in the agents’ testimony from their personal observations and the appellants’ own conduct and admissions. Likewise, it is apparent that the hearsay statements by Sharp objected to by the appellants were made while the conspiracy was still active. The Overshons contend, however, that the hearsay statements were not in furtherance of the conspiracy, and therefore should not have been admitted.

Several commentators have noted that courts have tended to broadly construe the requirement that the co-conspirator’s statement be made in furtherance of the conspiracy, so long as the hearsay statement sought to be admitted was uttered during the active life of the conspiracy under circumstances indicating reliability and provided the statement related to the conspiracy itself. McCormick’s Handbook of the Law of Evidence § 267, at 645 (2d ed. 1972); Developments: Criminal Conspiracy, 72 Harv.L.Rev. 920, 985-986 (1959); c/., e. g., Salazar v. United States, 405 F.2d 74 (9th Cir. 1968); United States v. Annunziato, 293 F.2d 373 (2d Cir.), cert, denied, 368 U. S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961).

But in any event, we conclude that the statements uttered by Sharp clearly were in furtherance of the conspiracy. Several of his remarks implicating the Overshons were intended as solicitations for business from Beattie and Bennett. Sharp’s explanation of John Overshon’s reaction to the second sale evinced a desire to allay any apprehension Beattie and Bennett might have over John’s conduct and to insure good relations for future sales of guns to the agents. There was no error in admitting the statements.

Finally, the appellants urge that the United States District Court for the Eastern District of Missouri was without venue to try either the conspiracy counts or the substantive count against Curtis. Appellants challenged the venue in their motions for judgment of acquittal. Rule 18, Fed.R.Crim.P., provides that, except as otherwise permitted by statute or the rules, the prosecution shall be had in the district in which the offense was committed. Thus, it follows that prosecution of the substantive count against Curtis must be in the district where the alleged receipt of the firearms took place.

The uncertainty of venue derives from the location of Rolla in the Eastern District of Missouri. This city is the seat of government of Phelps County, which is the westernmost county in the Eastern District and is a relatively short distance from the eastern border of the Western District of Missouri. The evidence concerning the sales of the firearms shows that both transactions were at locations “approximately” several miles south of Rolla. The government made no attempt to pinpoint exactly where in Phelps County the substantive offense was committed. This deficiency in the proof was conceded by the Assistant United States Attorney who prosecuted the case in the district court and represented the government on appeal. Because of the lack of any evidence as to venue and considering that the place where the substantive offense occurred was near the borderline between the Eastern and Western Districts of Missouri, we have no alternative but to reverse the ■ conviction against Curtis Ov-ershon on the substantive count.

Nevertheless, appellants’ contention that there was no evidence of venue for trial on the conspiracy in the Eastern District must fail. The applicable statute provides:

Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

18 U.S.C. § 3237(a). Accordingly, it is settled law that venue as to prosecution of all members of a conspiracy lies either in the jurisdiction in which the conspiratorial agreement was formed or in any jurisdiction in which an overt act in furtherance of the conspiracy was committed by any of the conspirators. Hyde v. United States, 225 U.S. 347, 72 S.Ct. 793, 56 L.Ed. 1114 (1912); United States v. Guy, 456 F.2d 1157 (8th Cir.), cert, denied, 409 U.S. 896, 93 S.Ct. 136, 34 L.Ed.2d 153 (1972); United States v. Phillips, 433 F.2d 1364 (8th Cir. 1970); 8 Moore on Fed.Prac. |f 18.03[1] (1968).

In the present case the proof shows several overt acts to sell firearms made to Beattie and Bennett by Sharp at the Crestview Trailer Court and similar overtures to the agents by John Over-shon during pool hall conversations in Rolla. These overt acts are sufficient to establish venue of the conspiracy count in the Eastern District.

By way of summary, we are convinced that the evidence clearly established that appellants and their co-conspirators concocted a deliberate scheme for the purpose of engaging in illicit sales of large numbers of firearms. The evidence likewise shows that by concerted action they were able to accomplish the purpose of the conspiracy.

For the reasons stated, we affirm the judgments of conviction against both appellants on the conspiracy count and reverse the judgment of conviction against Curtis Charles Overshon on the substantive count.

      . The other defendants were Marvin Sharp, and Rodney Lewis. Betty Hodges, Jesse Hussey, Pamela Campbell

      . An attempt was made through the testimony of Curtis and his wife to disprove appellants’ knowledge of or participation in the conspiracy. John Overshon did not testify. Obviously the jury did not credit the Over-shon testimony.

      . Although the government did not introduce evidence that Sharp was unlicensed, no one contended at trial or during oral argument that he actually did have a license. In fact, Sharp himself made a pre-trial motion to dismiss certain counts involving offenses under 18 U.S.C. § 922(a) (1) on the grounds that no license was required for the particular sales alleged. In addition, the government’s attorney at trial stated flatly without contradiction during a bench conference that Marvin Sharp was unlicensed. Furthermore, Sharp pleaded guilty to a substantive violation of 18 U.S.C. § 842(a) (1), dealing in explosive materials without a license.
      Of course, the jury had no knowledge of the pre-trial motion, Sharp’s guilty plea, or the government attorney’s statements to the judge.

      . The hearsay statements of Sharp to which the Overshons objected included: a statement that the group had some items for sale which they had acquired in a burglary; Sharp’s remark on March 13 that John and Curtis would help obtain seventeen more firearms; and Sharp’s explanation of John’s anger after the $545 sale.

      . 28 U.S.C. § 105(a) provides that Phelps County is within the Eastern Division of the Eastern District of Missouri.

      . Quite apart from the failure of the government to prove venue for the substantive offense, we have serious doubts as to whether the evidence of receipt of the weapon, which is the gist of the substantive offense, would be sufficient to sustain a conviction under 18 U.S.C. App. § 1202(a) (1).


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    Anibal OTERO-RIVERA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
    No. 73-1298.
    United States Court of Appeals, First Circuit.
    Submitted Feb. 6, 1974.
    Decided March 28, 1974.

      Rafael Benet, Hato Rey, P. R., on brief, for appellant.
    Julio Morales Sanchez, U. S. Atty., and Jorge Rios Torres, Asst. U. S. Atty., San Juan, P. R., on brief for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Appellant Otero-Rivera appeals from the denial of his pro se motion filed under 28 U.S.C. § 2255 to vacate his 1959 conviction for sale of narcotics in violation of 26 U.S.C. § 4705(a). The court had imposed the minimum five year sentence, 26 U.S.C. § 7237(b) as amended, and recommended commitment to an institution for treatment and cure of drug addiction. In 1968 when appellant pleaded guilty to violations of other federal narcotics laws, he received a mandatory ten year sentence as a second offender!

Appellant now asserts that when the court accepted his 1959 guilty plea, it did not comply with the then existing Rule 11 in that he was not informed nor made aware of the consequences of his plea. After examining the records of the case, the district court held that they conclusively showed that the plea was properly accepted. The motion was denied without an evidentiary hearing.

The record reveals that appellant appeared at his arraignment with court-appointed attorney, waived the reading of the indictment, and entered a plea of not guilty. Twelve days later he appeared with a different court-appointed attorney to change his plea. The following colloquy is then reported:

“Mr. Rivera: We have been appointed by the Court, Your Honor, to represent the defendant, and we have been talking to the defendant for the last hour. He has decided to change his plea of not guilty, as I have explained to him the meaning of the indictment.
The Defendant: Yes, Your Honor.
The Court: Have you explained to him the consequences of his plea of guilty, the penalty that the Court is bound to impose upon him, etc.?
The Defendant: That is correct,
Your Honor.
The Court: Have any promises
been made to you ?
The Defendant: No, Your Honor.
The Court: Have any threats been made to you ?
The Defendant: No threats, and this is a voluntary plea.
The Court: All right. The motion for change of plea is granted, and the new plea of guilty as charged in the indictment is accepted.”

Appellant asserts in his motion that he spoke with his counsel for a few minutes, and was advised to change his plea because of the seriousness of the offense and his poor chances for acquittal before a jury. He further alleges: (1) his plea was coerced by defense counsel; (2) he lacked knowledge of the English language; (3) defense counsel served as interpreter of the court; (4) he “did not know the statement that the defense counsel made to the court on his behalf”; (5) the trial judge did not personally ask him whether he was coerced into pleading guilty; (6) he was not personally informed by the court that a guilty plea involved waiver of trial by jury and the right to confront one’s accusers; and (7) neither the trial judge nor his counsel advised him of the consequences of his plea, in particular the maximum sentence he could have received and his ineligibility for parole.

The central question is whether it was proper to deny the motion without an evidentiary hearing. This depends upon whether the record conclusively reveals compliance with Rule 11 as it was written in 1959 and excludes all other possibility of relief. We must take petitioner’s factual allegations “as true, except to the extent that they are contradicted by the record or are inherently incredible, and to the extent that they are merely conclusions rather than statements of fact.” Domenica v. United States, 292 F.2d 483, 484 (1st Cir. 1961).

Most of the allegations are plainly lacking in merit. That the plea “was coerced by defense counsel” is a mere conclusion unbuttressed by specific facts. Appellant originally told the court “this is a voluntary plea”, a representation he cannot now so easily repudiate. Cf. Benthiem v. United States, 403 F.2d 1009 (1st Cir. 1968). That the court did not inquire into the voluntariness of the plea is belied by the record. That a plea waives the right to trial by jury and to confront one’s accusers is so evident that a judge, even under amended Rule 11, does not commit fatal error by neglecting so to state. United States v. Webb, 433 F.2d 400, 403 (1st Cir. 1970). Nor is the judgment to be vacated because the defendant may not have realized the maximum sentence since he, in fact, received the minimum sentence. See Eakes v. United States, 391 F.2d 287 (5th Cir. 1968); Murray v. United States, 419 F.2d 1076 (10th Cir. 1969).

The only allegation that raises a serious question concerning the defendant’s understanding of the nature of the charge is his claim that he was not advised by either court or counsel of his ineligibility for parole. 26 U.S.C. § 7237(d)(1). Ineligibility is a material consequence of a guilty plea. Durant v. United States, 410 F.2d 689 (1st Cir. 1969). In dismissing the motion, the district court erred in construing pre1966 Rule 11 as not requiring a court to have reason to believe that a defendant had knowledge of such a consequence. See, e. g., Munich v. United States, 337 F.2d 356 (9th Cir. 1964); Berry v. United States, 412 F.2d 189 (3d Cir. 1969); Jenkins v. United States, 420 F. 2d 433 (10th Cir. 1970). The pre-1966 Rule does refer only to an “understanding of the nature of the charge” and not to “the consequences of the plea”. However, the 1966 Committee Note to Rule 11 states that the revision was not intended as a substantive change, but rather to make clear existing law. 8 J. Moore, Federal Practice 11.01 [3] (Cipes; Thompson rev. 1973). Federal courts have always been required to be “careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” Ker-cheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927). Accord, Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948). A plea of guilty waives fundamental constitutional rights; in order to be valid, the waiver must involve “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). If it is not both voluntary and knowing, there has been a violation of due process. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

The pre-1966 Rule was, of course, less formalistic. It did not require compliance with a particular ritual. The court, indeed, did not have to address the defendant personally. That he knew the consequences might be gleaned from what his attorney said in his presence, or from the fact that defendant had been previously punished for a similar offense. United States v. Swaggerty, 218 F.2d 875, 879 (7th Cir.), cert, denied 349 U.S. 959, 75 S.Ct. 889, 99 L.Ed. 1282 (1955). The mere fact that counsel was available might be given some, though not conclusive, weight in gauging, overall, defendant’s understanding. See Gundlach v. United States, 262 F.2d 72, 76 (4th Cir. 1958). But even before 1966, whether through its own inquiry or by other means, the court had to have before it facts from which it could reasonably determine the plea was knowing. See Turner v. United States, 325 F.2d 988 (8th Cir. 1964); Munich v. United States, supra, 337 F. 2d at 360.

Otero-Rivera’s inability to understand English, the record’s lack of clarity as to which questions or responses were translated, and our uncertainty as to who actually responded to the court’s inquiry directed at counsel, make it impossible to conclude without more that this particular plea was sufficiently probed or that appellant, in fact, possessed sufficient understanding of the consequences of the plea. From the sparse and confusing record, it is not apparent that Otero-Rivera knew what was being said by the court or counsel. We cannot, therefore, impute acquiescence therein, much less understanding of the consequences. The very case relied upon by the government, United States v. Denniston, 89 F.2d 696, 698 (2d Cir. 1937) indicates that the circumstances must “fairly show that the attorney speaks for his client who understands what is being done and its import and who acquiesces . . . ”

As the record does not establish that the court had a factual basis for believing that Otero-Rivera understood a conviction would make him ineligible for parole, there must be a hearing. The government will have the burden of proving that the plea was, in fact, entered voluntarily and with the requisite understanding. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1968). Appellant’s understanding at the time may be established not only directly but by reasonable inferences from proof of his prior participation in other relevant court proceedings or sentences for drug crimes carrying similar disabilities. The district court may also wish to consider what, if any, inference to draw from appellant’s prolonged failure to attack the 1959 conviction.

Reversed and remanded to the district court for proceedings consistent with this opinion.

      . Before it was amended in 1966 Rule 11 was worded as follows: “The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.”

      . “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing . . . . ” 28 U.S.C. § 2255.

      . Rule 11 as amended reads, “The court may refuse to accept a plea of guilty, and shall not accept such a plea, or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequence of the plea .... The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”

      . See Halliday v. United States, 394 U.S. 831, 834, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1968) (Harlan, ,T., concurring) ; Halliday v. United States, 380 F.2d 270, 272 n. 2 (1st Cir. 1967) ; “1966 Committee Note to Rule 11,” 8 J. Moore, Federal Practice U 11.01 [3] (Cipes; Thompson rev. 1973).

      . At defendant’s 1968 guilty plea proceeding, the court asked whether he heard and understood the words of his attorney and whether he was in agreement with his attorney.

      . Given the ambiguity of the record, heightened as it is by the language problem, we need not decide whether merely asking if “the penalty that the Court is bound to impose” had been explained, without further elaboration, and receiving an affirmative answer, would have been enough in the case of an English-speaking defendant. Compare United States v. Davis, 212 F.2d 264 (7th Cir. 1954) and United States v. Lester, 247 F.2d 496, 500 (2d Cir. 1957), with Murray v. United States, 419 F.2d 1076 (10th Cir. 1969).

      . Otero-Rivera was apparently serving a Commonwealth of Puerto Rico sentence in 1959, for what offense we do not know. Even a non-federal prior conviction, if for a non-parolable drug offense, might be material to the issue of understanding.


author: LIVELY, Circuit Judge.

text:
    AMERCO MARKETING COMPANY OF MEMPHIS, INC., Defendant-Appellant, v. Carlos MYERS, Administrator, Estate of Junior J. Myers, Deceased, et al., Plaintiff-Appellee, and James A. Seymour and Elphreda B. Seymour, Defendants-Appellees.
    No. 73-1524.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 30, 1974.
    Decided April 16, 1974.

      Charles E. English, Bowling Green, Ky., for defendant-appellant; English, Lucas, Priest & Owsley, Bowling Green, Ky., on brief.
    Paul R. Huddleston, Bowling Green, Ky., for plaintiff-appellee; Marion Vance, Glasgow, Ky., on brief.
    H. Francis Stewart, Stewart & Estes, Nashville, Tenn., on brief for defendants-appellees.
    Before McCREE and LIVELY, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   LIVELY, Circuit Judge.

This diversity action arose out of a collision which took place on Interstate Highway 65 (1-65) a short distance north of Bowling Green, Kentucky. The plaintiff is the personal representative of three occupants of a south-bound Ford Pinto who received fatal injuries in the collision. The other vehicle was a 1966 Plymouth owned by the defendant James A. Seymour and his wife Elphre-da B. Seymour who was driving the automobile north on 1-65 at the time of the collision. The Seymour automobile was pulling a U-Haul trailer which Mr. Seymour had rented from an agent of the defendant Amerco Marketing Company of Memphis, Inc. (Amerco) in Memphis, Tennessee the previous evening. Amerco also furnished a trailer hitch which was attached to the rear bumper of the Seymour automobile. The complaint alleged that Amerco was “negligent in hooking said trailer and hitch to said automobile, so that, the attachment was defective and unsafe. Consequently . . . the connection fell apart causing the automobile to go out of control and into a violent collision with another vehicle operated by Junior J. Myers.” The complaint also alleged that Mr. and Mrs. Seymour were careless in the operation of their automobile and trailer and that this was a contributing cause of the collision.

All of the occupants of the Myers car were killed, and Mrs. Seymour was the only occupant of her car who was awake at the time of the collision. She testified that she was running normally in the outside, or slow, lane of 1-65 prior to the events immediately preceding the collision and that the trailer was pulling easily. She and her husband both testified to previous stops between Memphis and Bowling Green at which times the trailer connection seemed to be all right. Mrs. Seymour’s description of the collision was as follows:

And I noticed this Chrysler Corporation place after we passed it — it’s sort of a landmark, because when we first started coming it was just being built. I noticed that, and I was just driving along and everything was seemingly just lovely. The radio was playing and I was driving along, and all of a sudden that car just out of the clear blue, just out of nowhere, the car just took a lunge like it was taking off like an airplane, just taking off to the right, and I just didn’t know what was happening and I — my only instinct was to grip that wheel, grip that wheel (Indicating), and by that time it was just going on to the left, and we were over in the median, and I just held the wheel trying my best to guide it, because I saw it was out of — I was just trying to guide it, and I tried to keep it in that median and I tried hard to keep it in that median. And when I — I thought it had come to a stop, and about the time I thought it had come to a stop, you know, slowed down, well, I didn’t know anything, it had gone over in the next lane, and just at that point was this brown car and I realized we were collided, had collided, and we landed into the bank, and when we landed into the bank, well I — I looked down and I saw flame.

Almost immediately Mrs. Seymour corrected this testimony to state that the automobile lunged to the left, not to the right, and went straight into the grass median. Mrs. Seymour first said she did not remember hearing any sound immediately prior to losing control of the car, though on cross-examination it was brought out that she had previously testified that she did hear a noise, described as a “pop,” just as the car started veering. She said that she glanced in her rear view mirror and the trailer was “sort of swaying.” She heard a bumping noise behind her but did not remember hearing any dragging or scraping noise. Mrs. Seymour estimated her speed at between 50 and 55 miles per hour, though there wTas other evidence that she had told an investigating Kentucky State trooper that she was driving about 65 miles per hour. She stated that she had not noticed a sign on the rear of the trailer indicating a maximum safe speed of 45 miles per hour.

While no witness testified that he actually observed the collision between the vehicles, two truck drivers who were in the vicinity testified concerning what they saw and heard. James D. Earp who was operating a tractor-trailer south bound on 1-65 made this statement:

Well, anywhere between six to six-thirty in the morning, it just started getting daylight, I noticed this car on the left side of the interstate going north. It got just about parallel with me and it sounded like, something like a shotgun blast, like a tire blew out, and the car started weaving and I started stopping and pulled over to the edge of the interstate and I got stopped just about at the entrance to the rest area and by the time I got out of the truck and started back the Plymouth that was pulling a U-Haul trailer was headed into the bank on the south-bound side.

Earp further stated that after the collision the Ford and Plymouth were sitting up against a bank on the west side of the south-bound lanes of the highway and that the trailer and trailer hitch were all intact, but separated from the Seymour automobile and sitting in the passing lane of south-bound 1-65.

Another truck driver named Aiken was also proceeding south on 1-65 and saw a set of lights flash or dip in the north-bound lane. He didn’t see the Seymour car cross the median or collide with the Myers ear. However, he was confronted with the trailer and hitch in the passing, or east lane of south-bound 1-65, and maneuvered his truck between the U-Haul trailer and the two automobiles which had collided and were sitting side by side on the west side of the highway. This witness examined the trailer and hitch and found them intact with the chains still wrapped around the hitch. He also noticed a gouge in the passing lane of the north-bound portion of the highway near the median. The witness testified that the right front tire of the Plymouth was down and looked as if it had been penetrated by the bumper or bumper arm. He did not notice the left front tire as it was against the earth bank on the west side of the highway.

The first officer to arrive at the scene of the collision was Sheriff Montgomery who described marks which he found in the north-bound portion of the highway and the grass median. He testified that there were no marks made by the rim of a wheel. State Trooper Pitcock located the point of impact as near the center of the two south-bound lanes of the highway and testified concerning marks which he found in the road. He stated that in his opinion none of the marks was made by the rim of a deflated tire or wheel and that his examination indicated that the marks in the highway and median were made by the trailer hitch. He told of a trench two and one-half inches deep and six to eight feet long in the grass median leading to the point where the trailer overturned. Trooper Lusher who went to the scene of the accident later in the day for the purpose of making pictures observed a gouge mark in the roadway in the right lane of the north-bound portion of the highway and testified that there were no tire marks south of this gouge.

The garage mechanic who removed the trailer from the scene of the accident to Bowling Green testified that he found the trailer in the grassy median between the north and south-bound lanes of the highway. He said that the trailer hitch was still connected to the trailer with the chains attached. He stated that he was sure that “the safety chains were wrapped from the trailer tongue to the trailer hitch.” The owner of the agency from whom the U-Haul trailer was leased testified that safety chains are required on all towed vehicles and that their purpose is to maintain control of the trailer and prevent trailer hitches from dropping to the pavement “in case a bumper tears off or something.” He said that the safety chains are hooked to the frame of the automobile rather than to the bumper on which the trailer hitch is mounted. An experienced employee of the same agency, Roosevelt Hale, testified that the chains should be crossed under the tongue to keep it from hitting the ground if it comes loose and that the hooks at the end of the chains must be fastened to the frame of the car, rather than to the bumper or the trailer hitch. Another employee of the agency testified that if the hitch bar should come off of the bumper the trailer would still be attached to the car by chains properly secured to the frame of the automobile.

Neither employee of the Amerco agency who testified could remember dealing with the Seymours. Mrs. Seymour’s son testified that he observed a young man, not Roosevelt Hale, install the trailer hitch on the rear bumper of the Seymour ear. He said that he noticed that two chains which were attached to the trailer were dragging and that the employee making the installation attached them to the bumper of the car. He said that they were not attached any place else and that he was certain that the chains were not attached to the frame of the car. He further testified that no written or oral instructions concerning installation or operation of the U-Haul trailer were given either to him or to Mr. Seymour. This was confirmed by James Seymour, who signed the lease agreement for the trailer. Mr. Seymour, also testified that his automobile was in good mechanical condition, told of recent maintenance which it had received and stated that it was equipped with heavy-duty shock absorbers.

The hitch which accompanied the trailer consists of a bar several feet wide on which a metal ball having a diameter of two and one tenth inches is mounted. Sliding clamps are mounted on each side of the ball and these are secured to the rear bumper of an automobile in such a manner as to place the ball in the center of the vehicle. The clamps are secured to the bumper by means of large wing nuts which are tightened by hand. A flat washer and a lock washer are inserted under the wing nut and when it is tightened to the point that the lock washer is compressed to a flat condition the wing nut is locked in place. The manager of Amerco’s national office was called by the plaintiff as if on cross-examination and he agreed that the design of the trailer hitch and clamps permits the use of a spring lock washer and a “jamb nut” above the wing nut. This witness testified that it is not necessary to use these devices above the wing nut since the use of a flat washer and lock washer below the wing nut makes the installation safe.

The designer of the hitch was called as a witness for the defendant and testified that the jamb nut is never used on a multi-clamp bumper hitch because it is rendered safe by use of a lock washer beneath the wing nut. He further testified that the applicable standards of safety do not require a jamb nut and stated on cross-examination that the standards do not specify the use of wing nuts at all. A qualified metallurgist testified for the defendant that he had examined the trailer and the hitch and the vehicles involved in the accident. He stated that he was able to determine that the bumper and trailer hitch were attached to each other at the time the Seymour automobile swerved, pulling the trailer hitch “severely from the bumper.” He described the sequence of events as he had reconstructed them and stated that the first thing that happened in connection with the collision was the loss of control of the Seymour automobile. This witness also testified that in his opinion the lock washers were sufficient to prevent the wing nuts from backing off and while a jamb nut would be an additional safety device “. . . in this case it would have been a redundant system because the lock washers themselves acted to prevent the wing nuts from backing off.” The other expert witness called by the defendant Amerco, a mechanical engineer who specializes in traffic accident reconstruction, answered a hypothetical question that the cause of the loss of control of the Seymour automobile was that its left front tire blew out. He explained the gouge marks in the highway and ruled out any mechanical failure other than a blowout. He testified that the wing nut and clamps were in position prior to the accident but that when the car swerved sharply to the left the trailer rotated to the right and the hitch bar was torn off of the bumper. He stated that the gouges in the highway and the median were not caused by the hitch bar or the skid plate.

Amerco made a motion for a directed verdict at the conclusion of the plaintiff’s case and this motion was renewed when all parties had rested. The jury returned a verdict in favor of James Seymour and Elphreda Seymour and against Amerco as follows:

For Junior J. Myers
Estate............. $124,832.92
For Linda Ann Myers
Estate ............ $125,759.15
For Anna Lois Myers Estate ............ $ 51,387.00.

Motions for a new trial and for judgment not withstanding the verdict were overruled.

On appeal there is no objection to the instructions under which the case was submitted to the jury. Throughout the trial the defendant Amerco objected to the use and subsequent introduction of various exhibits which had not been listed in advance of trial by the plaintiff in accordance with a pretrial order. In cross-examining defense witnesses, counsel for the plaintiff exhibited jamb nuts, lock nuts, bolts, springs and other mechanical devices and requested the witnesses to demonstrate the use of these devices on the multi-clamp bumper hitch. The exhibits were introduced for the purpose of showing that the design of the hitch would permit the use of additional devices to secure the wing nuts, and did not constitute an attack on the design of the hitch. It was within the discretion of the court to waive the requirement of the pretrial order and to permit the introduction of these exhibits since they were used to demonstrate the single theory upon which the plaintiff proceeded throughout the trial. Amerco relies on Warner v. Kewanee Machinery and Conveyor Company, 411 F.2d 1060 (6th Cir. 1969), cert, denied, 398 U.S. 906, 90 S.Ct. 1685, 26 L.Ed.2d 65 (1970), where a judgment was vacated because the trial court improperly admitted certain exhibits. As in the present case, the exibits were introduced during cross-examination of witnesses for the defendant. All of the exhibits in question were printed publications and it was held that error was committed with respect to two of them by the failure of the court to instruct the jury that they were received solely for the purpose of impeaching testimony of a witness for the defendant. The error which the court found in the admission of the third exhibit was stated by the court in the following language:

Had the exhibit been identified by and offered during the testimony of a witness called by plaintiff, defendant would have been afforded an opportunity to cross-examine concerning the authenticity and particularly the date of publication of the booklet. Not only was defendant denied this opportunity, but obviously the witness undergoing cross-examination by plaintiff lacked the ability to provide information in these areas. In other words, not only was proper evidence on these crucial points not offered, it was not even available from the witness through whom the exhibit was offered. 411 F.2d at 1064.

No such problem existed in the present case because the witnesses to whom the exhibits were shown readily identified them and agreed that they might be put to the use suggested by the plaintiffs, but insisted that they were not needed to obtain a secure connection of the trailer hitch to the automobile bumper. Furthermore, the first reference to “a lock nut - lock-wash” came in the deposition of Roosevelt Hale, a witness for the plaintiff who was cross-examined by counsel for Amerco. This witness was admittedly experienced in installation of multi-clamp, bar-type trailer hitches. It was the position of the defendant that Roosevelt Hale had made the installation on the Seymour automobile, while witnesses for the plaintiffs maintained that a younger man had done it. Referring to the wing nuts which secured the clamps of the hitch to the bumper, the witness Hale said, “It’s nothing to tightening it. You put it on there and that lock nut on there holds it.” The hitch which the defendant produced at the trial had flat washers and lock washers between the wing nuts and the top of the clamps, but nothing on the bolt above the wing nuts. It was for the purpose of illustrating the simplicity of also using a lock or jamb nut above the wing nut that the demonstration involving these exhibits was conducted. We find no error in the admission of these exhibits or the use of toy-size models of an automobile, trailer, and hitch.

A more serious issue was presented to the district court by the defendant’s motion for judgment notwithstanding the verdict, where it was claimed that no submissible jury case was presented on the question of whether the hitch and trailer were negligently installed on the Seymour automobile. The defendant argued that the plaintiff’s evidence at best supported the possibility that the trailer hitch came apart and that the plaintiff failed to carry his burden of producing evidence to establish the probable cause of the accident. On appeal, Amerco relies principally on Midwestern V. W. Corporation et al. v. Ringley et al., 503 S.W.2d 745 (Ky.1973). In that case the Kentucky Court of Appeals held that the plaintiff failed to establish a jury issue as to causation. The Kentucky rule on the plaintiff’s burden of introducing evidence of causation was stated as follows:

Although the jury may draw reasonable inferences from the evidence of a defect in manufacturing, it is incumbent on the plaintiff to introduce evidence that will support a reasonable inference that the defect was the “probable” cause of the accident as distinguished from a “possible” cause among other possibilities; otherwise, the jury verdict is based on speculation or surmise.

This rule has been applied to negligence cases as well as those based on strict liability. See Huffman v. SS. Mary and Elizabeth Hospital, 475 S.W.2d 631 (Ky.1972); Briner v. General Motors Corporation, 461 S.W.2d 99 (Ky.1971); Holbrook v. Rose, 458 S.W.2d 155 (Ky. 1970). Amerco maintains that the only evidence in the record of negligence or causation consists of a pyramiding of inferences as to possible, rather than probable, causes. It is claimed that the plaintiff failed to introduce sufficient proof “to tilt the balance from possibility to probability.”

When presented with a motion for a directed verdict, the trial court must view all the evidence most favorably to the party against whom the motion is made. Rock v. Creacy, 430 S.W. 2d 137 (Ky.1968); Price v. Firestone Tire & Rubber Company, 321 F. 2d 725 (6th Cir. 1963). On appeal, we are bound to view the evidence in the same way and to give the non-moving party “the benefit of all inferences which the evidence fairly supports, even though contrary inferences might be drawn.” Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). Viewed in this light, the evidence reveals that the safety chains attached to the trailer hitch were hooked to the bumper of the Seymour car rather than to its frame. Furthermore, no lock nut or jamb nut was placed on the bolt which secured the clamps to the bumper above the wing nuts. Although the testimony of Roosevelt Hale concerning the use of lock nuts was confusing, the jury could conclude from it that the use of such a nut above the wing nut was required. There was direct evidence that the purpose of requiring the safety chains to be attached to the frame of the car was to control the trailer in the event that the bumper hitch should somehow become disengaged from the bumper. Roosevelt Hale testified that the purpose of crossing the safety chains under the tongue of the trailer assembly was to prevent the tongue or its skid plate from falling to the surface and dragging in such an event. The opinion of at least one of the investigating officers was that the gouges and marks in the passing lane of the northbound section of 1-65 and in the grass median were caused by the trailer hitch or the skid plate. In addition, Mrs. Seymour testified that immediately after the automobile began veering to the left she looked in the rear view mirror and saw that the trailer was swaying from side to side. The evidence is clear, also, that at some point the trailer and the hitch, including the safety chains, became disengaged from the bumper of the Seymour automobile and ended up in the easterly or passing lane of south-bound 1-65 whereas the car itself came to rest against an earth bank off the west side of the south-bound lanes of the highway.

If the jury believed the evidence just recited, it could reasonably have found that the 'safety chains on the multi-clamp trailer hitch were not crossed beneath the tongue of the trailer or attached to the frame of the Seymour car and that an attendant much younger than Roosevelt Hale had made the installation and failed to secure the wing nuts with lock nuts. It could also reasonably have found that the trailer was swaying from side to side immediately after Mrs. Seymour heard a noise behind her and felt her car veer to the left. The jury could also have found from the direct evidence of qualified witnesses that a gouge in one of the north-bound lanes of 1-65 and the grass median separating it from the south-bound lanes was caused by the trailer hitch becoming disengaged from the bumper of the Seymour car and the hitch or trailer tongue falling to the surface of the road. These findings, based on direct evidence, could reasonably have led the jury to the inference that the multi-clamp, bar-type trailer hitch was improperly installed on the Seymour car, that it became separated from the automobile while it was being operated in a normal fashion and that this separation caused the Seymour vehicle to veer to the left, cross the median and strike the Myers’ automobile. Thus the jury verdict is not based on inferences drawn from other inferences. Rather, it may be viewed as being based on an inference which was drawn from a number of facts which were shown by direct evidence. We do not believe that the verdict in this case was based on sheer speculation, a condition which justifies a judgment notwithstanding the verdict under Kentucky law. Miller v. Watts, 436 S.W.2d 515 (Ky.1969).

Despite the fact that the defendant produced a strong case in support of its theory that the trailer and hitch separated after the Seymour automobile went out of control and was not the cause of its sudden lunge to the left, the plaintiff’s evidence created more than a mere possibility that the contrary was true. Furthermore, the jury might have accepted the defendant’s theory that the left front tire blew out before the Seymour car began its erratic course and still held the defendant liable. If the trailer hitch came loose and eventually pulled free of the rear bumper following a blow out because it was not properly attached in the beginning, the jury could have found that an otherwise manageable event (a blow out) resulted in complete loss of control of the car. If a blow out merely activated a dangerous condition created by the negligence of the defendant, the blow out was not a superseding cause which would relieve the defendant of liability for its negligence. The jury could reasonably have found that the proximate cause of the collision, though not of the first lunge to the left, was the failure of the agents of the defendant to install the trailer hitch properly. Seelbach v. Cadick, 405 S.W. 2d 745, 750 (Ky.1966); United Fuel Gas Co. v. Thacker, 372 S.W.2d 784, 787 (Ky.1963).

Amerco argues that the verdict is excessive and that the amounts awarded to the estates of the three decedents were based on improper elements of damages. The plaintiff called an economist who projected the work life expectancy and probable future earnings of each of the decedents. In making his calculations, he assumed no increased earnings for Junior J. Myers and no adjustment was made for inflation. He used assumed annual earnings for Anna Lois Myers who was not working full time at her death and for Linda Ann Myers, the daughter of Junior J. and Anna Lois Myers, who had never worked. The assumed gross earnings over the period of work life expectancy for each of the decedents were discounted to their present value and further reduced by an assumed cost of maintenance of each. In addition to earnings, the witness took into account Social Security benefits of all and retirement benefits which Junior J. Myers would have accrued with his employer. The jury accepted the testimony of this witness and awarded damages to each estate exactly equal to the discounted future earnings testified to, plus stipulated special damages.

This witness was qualified as an economist and very carefully testified concerning the methods which he used in reaching his estimates of future earnings. He also specified a number of publications which he stated are generally relied upon by economists in making similar calculations and which he referred to in reaching independent conclusions with respect to each of the decedents. The measure of damages in wrongful death actions in Kentucky is the value of the destruction of the power of the decedent to earn money, not the destruction of income from a particular job or occupation. Roland v. Beckham, 408 S.W.2d 628 (Ky.1966). The award in such a case is not limited to the past earnings of the decedent, as these may not be indicative of his power to earn. Humble v. Mountain State Construction Co., 441 F.2d 816 (6th Cir. 1971). Under this rule, there is necessarily an element of speculation involved in determining the power to earn money, particularly in the case of children and others who have not established a history of earnings. Yet the Kentucky courts have consistently upheld verdicts in such cases in the face of argument that they are based on speculation. See, e. g. Rice v. Rizk, 453 S.W.2d 732 (Ky.1970). Under the Kentucky rule of damages a great deal of latitude must necessarily be allowed in wrongful death cases. City of Louisville v. Stuckenborg, 438 S.W.2d 94 (Ky.1968). The amount of damages to be awarded for a wrongful death is for the jury to determine, and a verdict will not be set aside as excessive unless at “first blush” it appears to result from passion and prejudice. Cassidy v. Quis-enberry, 346 S.W.2d 304 (Ky.1961). We find that the evidence of Dr. Cann was competent and the verdicts are not excessive.

The final issue concerns Amerco’s claim that it is entitled to indemnity against James A. Seymour for the full amount of the verdicts because of the following provision which was contained in the lease contract between Amerco and Mr. Seymour.

Customer agrees to indemnify and hold harmless Lessor and its duly authorized agents from any and all damages and/or liability arising out of or resulting from Customers’ use of said trailer and/or equipment.

At the conclusion of all the proof, Amer-co made a motion for a directed verdict on the question of indemnity in reliance on this contract provision. The court did not pass on the motion at that time, but after the jury verdict had exonerated Mr. and Mrs. Seymour and found Amerco guilty of negligence, the court entered a judgment dismissing all claims against the Seymours. Thereafter, Amerco filed a motion to amend the judgment so as to grant indemnity for the full amount awarded. Both parties have proceeded on the assumption that Kentucky law controls this issue. In General Accident Fire and Life Assurance Corporation, Ltd. v. Smith and Oby Company, 272 F.2d 581 (6th Cir. 1959), we held that an action to recover under an indemnity provision was governed by the law of Ohio where the contract was made in Ohio between Ohio companies. The contraci in this case was made in Tennessee between a Tennessee resident and a Tennessee corporation. Under the law of Tennessee an indemnity agreement does not indemnify the indemni-tee’s own negligence unless it is clear and unambiguous from the language of the contract that this was the intention of the parties. Kroger Company v. Giem, 215 Tenn. 459, 387 S.W.2d 620 (1964); Brogdon v. Southern Railway Company, 384 F.2d 220 (6th Cir. 1967). The Kentucky Court of Appeals, in Fos-son v. Ashland Oil and Refining Company, 309 S.W.2d 176 (Ky.1957), stated, “It is true that when there is doubt as to the meaning of an indemnity clause the construction should be against the contention that the contract was meant to indemnify against an indemnitee’s own negligence. We have said that every presumption is against such an intention.” 309 S.W.2d at 178. Thus, it appears that the rule is the same, whether the law of Tennessee or that of Kentucky is applied. The quoted language from the lease contract does not clearly show an intent that the customer will indemnify Amerco for damages or liability resulting from Amerco’s own negligence. The district court correctly held that, in view of the jury finding, Amerco was not entitled to indemnity.

The judgment of the district court is affirmed.