author: CECIL, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Edgar WRIGHT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel STUBBLEFIELD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Willie Black CRAWFORD, Defendant-Appellant.
    Nos. 73-1286, 73-1127, 73-1128.
    United States Court of Appeals, Sixth Circuit.
    Argued June 13, 1973.
    Decided Feb. 13, 1974.

      Thomas A. Conroy (court-appointed), Cincinnati, Ohio, on brief, for Nathaniel Stubblefield (No. 73-1127).
    James J. Chalfie (court-appointed), Cincinnati, Ohio, on brief, for Willie Black Crawford (No. 73-1128).
    William J. Dammarell (court-appointed), Cincinnati, Ohio, on brief, for Charles Edgar Wright (No. 73-1286).
    William W. Milligan, U. S. Atty., Byron E. Trapp, Asst. U. S. Atty., Cincinnati, Ohio, on briefs, for United States of America.
    Before EDWARDS and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.
   CECIL, Senior Circuit Judge.

The defendants-appellants, Charles Edgar Wright, Nathaniel Stubblefield and Willie Black Crawford appeal from their convictions before a jury in the United States District Court for the Southern District of Ohio. The appellants were tried jointly but each one has filed a separate appeal. We will consider all of the appeals in this opinion.

There were four counts in the indictment upon which the appellants were tried and convicted. The first count charges appellant Wright with unlawfully distributing about 38.519 grams of cocaine, a schedule II controlled substance. (Sec. 841(a)(1), Title 21, U.S.C.). Count two charges appellants Stubble-field and Crawford with aiding and abetting Wright in the commission of the offense charged in the first count of the indictment. (Sec. 2(a), Title 18, and Sec. 841(a)(1), Title 21, U.S.C.). Count three charges all of the appellants with unlawfully possessing with intention of distributing about 10,338 grams of cocaine. (Sec. 841(a)(1), Title 21, U.S.C.). The fourth count involves appellant Crawford, only, charging him with carrying a firearm during the commission of a felony against the United States, to wit, aiding and abetting the commission of an offense as charged in count two and possession of cocaine as charged in count three.

Charles Edgar Wright was found guilty under counts one and three of the indictment and sentenced to ten years imprisonment on each count, the sentences to run concurrently. Nathaniel Stubblefield was found guilty under counts two and three of the indictment and sentenced to five years imprisonment on each count, the sentences to run concurrently. Willie Black Crawford was found guilty under counts two, three and four of the indictment and sentenced to five years imprisonment on each of counts two and three and to one year of imprisonment on count four, all of the sentences to run concurrently.

On December 8, 1971, the appellant Wright, according to his testimony, went to the Dennis Tire Company in Cincinnati to buy a tire. Wright was a native of Cincinnati but had recently returned there after spending a couple of years in Cleveland. At the Dennis Tire Store he met Jerry Price, sometimes called Jerry Wright, whom he had known for about eight years. In conversation with Jerry Price, as we will refer to him, the appellant Wright said he was unemployed and needed some money. Price said that there was a lot of money in the narcotics traffic.

This led to some telephone conversations and ultimately to a meeting with Price in his room at the Alms Hotel. At another meeting with Price at the Alms Hotel, the appellant, Wright, was introduced to Donald L. Ashton, a government undercover agent. Ashton took over at this point and after some negotiations between him and appellant Wright a deal was set up for the evening of February 22, 1972, which culminated in the arrest of all three of the appellants.

At about six o’clock in the evening arrangements were completed between Ashton and Wright, by a telephone call to Wright’s home, for Wright to deliver a quantity of cocaine to Ashton at the Sharonville Holiday Inn Motel. Wright went by “bootleg taxi” to the Kum Bak Inn where according to his testimony he requested appellant Stubblefield to drive him out to the Motel to see a girl. Wright claimed that his car was impounded and that he didn’t have the money to take a taxi. As they were leaving the Inn Stubblefield asked Crawford to accompany them. Wright testified that when he arrived at the Inn he had two sacks containing cocaine which he carried in his outside overcoat pocket.

When they arrived at the Motel Wright left Stubblefield and Crawford in the automobile while he went to meet Ashton in his room. Wright checked to see if Ashton had the money and if everything was “cold”. He then went back to the automobile and procured one of the sacks of cocaine which had been left in the automobile. As he was in the process of delivering this cocaine to Ashton he was placed under arrest. At this point Ashton radioed a signal to officers waiting on the outside of the Motel who placed appellants Stubblefield and Crawford under arrest.

It is claimed on behalf of appellants Wright and Stubblefield that the court erred in refusing to grant their requests to waive a jury. The case was tried on December sixth and both parties cite a headline in the Cincinnati Post of December fourth reading “Drug abuse at epidemic level”. In addition to the inflammatory and prejudicial potential of this headline Wright claims that his defense of entrapment which requires the admission of the fact of possession is too technical for the jury to comprehend. He also claims that he was “hooked” by a professional informer and the deal directed by a federal agent and that the informer was not presented at the trial by the prosecutor. (We see no relation between this and the refusal to grant a waiver of jury.) Stubblefield claimed potential prejudice to a jury by reason of the newspaper headline and the admissions of Wright in his entrapment defense.

Waiver of a jury in a criminal ease is governed by Rule 23(a) of the F.R. of Cr.P.

“Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.”

Both appellants claim that there may be an exception to this rule where the circumstances are such that the parties could not have a fair trial to a jury. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630. The court held in this ease that trial by jury was the Constitutional method for a criminal trial. It inferred that there might be circumstances where the “Government’s insistence on trial by jury would result in the denial to a defendant of an impartial trial” p. 37, 85 S.Ct. p. 791. In Adams v. U. S. ex rel. McCann, 317 U.S. 269, 63 S.Ct. 263, 87 L.Ed. 268, cited by counsel for Wright, there was waiver by the defendant and consent of the prosecutor and approval of the court.

Whether the facts and circumstances of a case come within the exception suggested by the court in Singer, is in the first instance a matter of discretion with the trial judge. We do not consider that the newspaper headline would per se be so prejudicial as to deny the appellants an impartial trial. Neither do we consider that the defense of entrapment would be so technical that it could not be considered by a jury. It is not unusual for defendants to invoke the defense of entrapment in jury trials. The trial judge did not abuse his discretion in denying the appellants Wright and Stubblefield the right to trial without a jury. We find no merit to the claims that the requests to waive a jury were denied.

In the brief on behalf of appellant Wright the argument is limited to the question of jury waiver. While no argument is made on the defense of entrapment there is scant evidence in support of it. The trial judge submitted this defense to the jury under proper instructions and we find no error either in the instructions or the verdict of the jury. In our opinion it is discernible from the evidence that Wright was ready and willing to engage in the illicit drug traffic and that Jerry Price and Ashton merely gave him an opportunity to become involved but did not persuade or induce him to do it. Barring the entrapment defense appellant Wright was obviously guilty under the first and third counts of the indictment.

We come now to a consideration of whether the hearsay testimony of Ash-ton allegedly quoting Wright with reference to his suppliers was so prejudicial to appellants Stubblefield and Crawford as to require reversal as to them.

When Ashton in his testimony first mentioned that he had met appellant Wright, counsel for appellant Crawford objected on the ground that such testimony had no relevance to Crawford. The trial judge then gave an explanation of the exception to the hearsay rule to the effect that if two or more persons joined together to accomplish a common end then each of them was responsible for what each did and said. He qualified this by saying that the exception was only applicable after there was evidence of a combination or concerted action on the part of defendants. Although conspiracy was not charged in the indictment this was a proper instruction relative to joint defendants.

In United States v. Williams, 435 F.2d 642, 645 (C.A. 9), cert. den., 401 U.S. 995, 91 S.Ct. 1241, 28 L.Ed.2d 533 (1971), the court said,

“The admissions and statements of a co-defendant are admissible as against the other even in the absence of a conspiracy count where there is independent evidence of a concert of action.”

See also United States v. Rinaldi, 393 F.2d 97, 99 (C.A. 2), cert. den., 393 U.S. 913, 89 S.Ct. 233, 21 L.Ed.2d 198 (1968); Davis v. United States, 409 F.2d 1095, 1100 (C.A. 5); Campbell v. United States, 415 F.2d 356, 357 (C.A. 6); United States v. Jones, 438 F.2d 461, 466 (C.A. 7); United States v. Johnson, 463 F.2d 216, 217 (C.A. 9), cert. den., 409 U.S. 1028, 93 S.Ct. 472, 34 L.Ed.2d 322 (1972); Mares v. United States, 383 F.2d 805, 809 (C.A. 10), aff’d., 409 F.2d 1083 (C.A. 10), cert. den., 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969).

We have examined the record of the trial and find that there is no independent evidence that Stubblefield and Crawford ever entered into an agreement or arrangement with Wright to sell or distribute cocaine in violation of the law. The only evidence, undisputed, is that Wright stopped at the Kum Bak Inn to get someone with an automobile to take him out to the Sharonville Holiday Inn to see a girl. Stubblefield agreed to do this and he asked Crawford if he wanted to accompany them.

The trial judge correctly ruled that at that point of the trial the evidence should only be considered against the appellant Wright.

Following this as Ashton’s story of his relation to Wright unfolded, Ashton testified,

“and he (Wright) stated that his source of supply was going to come with him and stay outside and then he could come in and give me the money, take it back out to the source of supply.” Tr. 67.

Counsel for Crawford objected and said he understood he had a continuing objection. The judge agreed and counsel for Stubblefield made a similar objection. In view of the inflammable nature of this alleged admission of Wright, it is our opinion that there should have been a specific ruling and an admonition to the jury.

And again at Tr. 90, Ashton testified, “he told me that he wouldn’t . I wouldn’t have to give him the money in advance, that he could bring the stuff to me because the source of supply was going to drive him out there, stay outside the motel and that he would come in, give me the cocaine, get the money and take it back out.”

This presumably was admitted under counsel’s continuing objection and no admonition was given to the jury.

A similar statement was made at Tr. 92,

“I asked him if he had the cocaine, and he said that his people have it downstairs in the car; they are very nervous. He said they are very nervous and they want to get out of here as soon as possible.”

Again, no specific objection and no admonition to the jury.

The appellant Wright denied making the statements quoted herein.

Early in his final argument, counsel for the government said,

“And that bothers me about this case, and I suppose I feel sorry for Wright over there, and that is why I put my arm around on him, because for one lie that Wright tells, hopefully, at least Wright hopes, he hopes that his two buddies will go free. Wright is dead and he knows it. He has got no defense. But he hopes by lying he can save his two buddies; for one lie two of his buddies who are a lot more guilty than he is will go free. He hopes that.” Tr. 324.

Counsel for the government specifically mentioned appellants Stubblefield and Crawford at p. 327 of the Tr.,

“There is no guy by the name of Joe, unless their names are alias Joe. Stubblefield and Crawford are the sources of supply. Let’s use our common sense.”

An objection was made and the court ruled,

“That will stand. That is for the jury to pass on the argument. All the court can say is it’s sayable.”

It is claimed that counsel, in his final argument, made seven references to appellants Stubblefield and Crawford as Wright’s source of supply. These were based upon hearsay evidence pertaining to asserted prior statements by Wright which he denied at trial.

In a recent case we have reiterated that this circuit does not admit hearsay evidence of prior inconsistent statements of a declarant as substantive proof of a crime. United States v. Lester, 491 F.2d 680, decided February 11, 1974. See also United States v. LaRose, 459 F.2d 361 (C.A. 6) (1972); United States v. Lipscomb, 425 F.2d 226 (C.A. 6) (1970); United States v. Classen, 424 F.2d 494 (C.A. 6) (1970); United States v. Crowder, 346 F.2d 1 (C.A. 6) (1965), cert. den., 382 U.S. 909, 86 S.Ct. 249, 15 L.Ed.2d 161; United States v. Barnes, 319 F.2d 290 (C.A. 6) (1963).

In this case we do not have proof (absent the disputed hearsay) of any agency relationship between Wright and Crawford and Stubblefield. Cf. United States v. Talbot, 470 F.2d 158 (C.A. 6) (1972); United States v. Miller, 246 F.2d 486, 490 (C.A. 2) (1957).

In his instructions to the jury the trial judge said that in their consideration of whether either Stubblefield or Crawford was an aider and abettor they should eliminate from their deliberations any reference to the statements of Ash-ton quoting Wright as saying that Stubblefield and Crawford were his source of supply. Upon request of counsel, the judge further instructed the jury,

“Just one thing we should have mentioned about hearsay, and these out of presence statements apply as well to Count 3 as Count 2.”

These hearsay statements were highly prejudicial and inflammatory. It required the utmost caution on the part of the trial judge to see that the jury understood that the appellants Stubblefield and Crawford could not be bound by them since there was no evidence of any concerted action between them and Wright. What makes the situation more aggravating is that Stubblefield and Crawford logically fit into the pattern of Wright’s alleged statements. It is our opinion that these appellants were entitled to have the jury admonished at every point, that they could not consider the statements in question against them. Counsel for the government should have been cautioned against making references to Stubblefield and Crawford as sources of supply and the jury properly admonished against considering such references.

It is doubtful that appellants Stubble-field and Crawford could have had a fair trial even under the most cautionary instructions concerning the alleged Wright statements. We conclude that the probability of prejudice against these appellants is too great to warrant sustaining their convictions. Consequently the judgments against Stubblefield and Crawford on counts two and three are reversed and their cases remanded to the District Court for further proceedings consistent with this opinion.

We do not decide whether, under the circumstances, omitting the evidence of the hearsay statements involved here, there is sufficient evidence from which a jury can infer guilt of Stubblefield and Crawford. That will be a question for the trial judge in a new trial.

Since count four against Crawford was contingent on his conviction of count two or three, the judgment on that count will be reversed.

We do not reach other claims made by appellants Stubblefield and Crawford.


source: Caselaw Access Project

author: FEINBERG, Circuit Judge:

license: Public Domain

text:
    A. LEO NASH STEEL CORPORATION, Plaintiff-Appellee, v. C. D. PERRY & SONS, INC., Defendant-Appellant.
    No. 235, Docket 72-2228.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 18, 1973.
    Decided Feb. 15, 1974.

      Leslie F. Couch, Albany, N. Y. (DiFabio & Couch, Albany, N. Y., on the brief), for defendant-appellant.
    Max Gordon, Albany, N. Y. (O’Connell & Aronowitz, P. C., Albany, N. Y., on the brief), for plaintiff-appellee.
    Before FRIENDLY, FEINBERG and OAKES, Circuit Judges.
   FEINBERG, Circuit Judge:

Appellant C. D. Perry & Sons, Inc., (“Perry”) appeals from a judgment of the United States District Court for the Northern District of New York, Peirson M. Hall, J., awarding appellee A. Leo Nash Steel Corporation (“Nash”) $15,113.95 with interest, the amount owing on a contract for steel sold and delivered to Perry, and dismissing Perry’s counterclaim for breach. Our role in reviewing a case tried to the court is limited to determining whether or not the judge’s findings were “clearly erroneous,” Fed.R.Civ.P. 52(a), or his conclusions of law incorrect. Although our task would have been considerably lightened had the trial court provided us with even a short written opinion instead of an oral decision, rendered in open court and supplemented by incomplete findings of fact and conclusions of law submitted by Nash, we have nonetheless concluded that the right result was reached. We therefore affirm the judgment of the court below.

The record reveals the following sequence of events. Early in 1967, Perry contracted with the State of New York to reconstruct a bridge in Saratoga County, New York. The agreement originally called for completion by December 1, 1968; it was twice extended, at Perry’s behest, so that the final date for performance was August 8, 1969. In order to fulfill its commitment to New York State, Perry entered into a written contract with Nash whereby the latter, on July 21, 1967, agreed to sell structural steel to Perry “for delivery in early spring.” Nash then subcontracted the order, as Perry had known it would do, to Connecticut Structures, Inc. (“Connecticut”).

From then on, Perry continually backed and filled on the tentative date for delivery, although Nash, needing the money, pressed for delivery. On May 1, 1968, Nash wrote Perry, acknowledging that Nash had been advised “that delivery on the bridge we are fabricating for you will not be required until about September 1, 1968.” Nash added that it wished to be paid on approximately July 1, “inasmuch as were told to have it [the steel] ready for the end of May; and ... do not feel that we should bear the consequences of tying up our money until September or October . . . . ” On August 7, 1968, an involuntary petition in bankruptcy was filed against Nash’s subcontractor, Connecticut. After unsuccessfully trying to arrange for the completion of the steel fabrication with Connecticut’s receiver in bankruptcy, Nash ordered the steel for the bridge from Anthracite Bridge Company (“Anthracite”). As Nash informed Perry, however, the earliest time for delivery would now be November since Anthracite had to obtain steel prior to fabrication. During the oral discussions about this problem, Perry suggested to Nash: “[W]hy don’t you see what you can do, being that November is going to be too late for us, . about getting the steel to us in the spring of ’69.” This was one year later than the original contract date.

Thereafter—apparently out of the blue—on August 20, 1968, Perry wrote Nash the following curt missive:

The failure to deliver the Structural Steel for the above project this summer will result in extra costs to us. We wish to inform you that we will hold you responsible for these extra costs.

On August 26, Perry sent another letter. After alluding to a purported August 15 delivery date which Nash had been unable to meet, Perry concluded: “The latest date we believe that we can accept delivery and finish our project this year is October 1, 1968.” On December 3, however, in a typical about-face, Perry wrote:

We are ready for the structural steel on the above project at present. It is our intent to commence erecting said structural steel the last week of March 1969. Therefore, please schedule your fabrications and delivery to insure that our schedule will be met.

Nash delivered the steel in March as requested. Perry accepted the deliveries and finished the bridge, but failed to pay Nash $15,113.95, the unpaid balance on the contract. Alleging diversity of citizenship, Nash brought the instant suit to recover the amount owing. Perry counterclaimed for $16,526.80 in damages, which it asserted were caused by Nash’s breach of contract in failing to make “timely delivery” of the steel. Having lost in all respects below, Perry pursues this appeal.

The mere recital of the facts shows that the equities favor appellee Nash, and the equities here accord with the law. The original written contract provided for “delivery in early spring [1968].” It is true that although time was not of the essence under the contract, Nash’s agreement to deliver in the spring would not have been fulfilled by delivery in August. But the correspondence makes clear that the last thing Perry wanted was delivery in that spring. In its May 1968 letter to Perry, Nash reluctantly expressed its understanding that delivery should not be made to Perry until September 1, a date obviously forced upon Nash by Perry. Clearly, then, Nash could not have been in breach by failing to deliver in August. The August 20 note from Perry, purporting to hold Nash “responsible for extra costs” incurred by late delivery, was therefore wholly ineffective. The earliest day on which Nash could have been in default was September 1, 1968. But on August 26, Perry wrote Nash: “The latest date we believe we can accept delivery and finish our project this year is October 1, 1968.” The fair intent of this letter is that performance by the extended date would satisfy Perry' and discharge Nash’s duty.

To be sure, Nash did not deliver the steel by October 1. (It had already indicated in August, in oral exchanges with Perry, that the bridge would not be ready until November.) This failure to perform by October 1 did not, however, subject Nash to damages. Under all the circumstances, we will not say that delivery by Nash to Perry in November or even in early December would not have been timely enough. On that assumption, Perry’s advice to Nash on December 3 to deliver by “the last week of March,” Perry’s intended date “to commence erecting,” rendered timely Nash's subsequent delivery in March 1969. Finally, even if Nash had actually delivered the steel by October 1, the record supports a finding that Perry would not, in any event, have been able to complete the bridge that year. Assuming arguendo that Nash had technically breached the contract by failing to deliver on October 1, 1968, Perry’s damages would not have been caused by Nash.

Thus, on the record, Nash had the right to the full contract price for its goods. Accordingly, we affirm the judgment of the district court, awarding Nash the balance due on the contract of sale and dismissing Perry’s counterclaim for damages.

      . Senior judge of the United States District Court for the Central District of California, sitting by designation.

      . These findings omit many of the most important facts regarding the crucial issue on this appeal: the timeliness of Nash’s delivery of steel to Perry.

      . In November 1967, Perry projected a date of approximately May 1968. In February 1968, this was postponed to approximately July 1, 1968. In March, the estimate was updated to June 3.

      . Perry claimed that the “delay” in delivery forced it to incur additional expenses—particularly for labor, since new union contracts in 1968-69 resulted in increased wages.

      . There was testimony that, among other things, concrete cannot be poured economically when the temperature is less than 45 degrees, and bituminous paving cannot be laid on the New York state highway system without special permission after October 15. These factors explain Perry’s oral discussion in August and its December 3 letter, both indicating that its real concern was delivery by March 1969.


author: JAMESON, District Judge:

text:
    Nelson L. PHILLIPS, Plaintiff-Appellant, v. City and County of San Francisco: ADULT PROBATION DEPARTMENT OF THE CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants-Appellees.
    No. 72-1074.
    United States Court of Appeals, Ninth Circuit.
    Jan. 29, 1974.

      Stuart Weinberg, of Levy & Van Bourg, Paul N. Halvonik, Charles C. Marson, of American Civil Liberties Union, Jerome B. Falk, Jr. (argued), San Francisco, Cal., for plaintiff-appellant.
    Thomas M. O’Connor, City Atty., Raymond D. Williamson, Jr., George E.
    Krueger, Deputy City Attys. (argued), San Francisco, Cal., for defendants-appellees.
    Before DUNIWAY and CHOY,. Circuit Judges, and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   JAMESON, District Judge:

This appeal is from a summary judgment of dismissal of an action under the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, and 1985.

Statement of Facts

Appellant was a deputy probation officer in the Family Support Section of the Adult Probation Department of the City and County of San Francisco. His work involved divorce and child support problems among a clientele which was approximately 75% black, 10% Latin American or Spanish-speaking, and 15% Caucasian or Oriental. In September, 1970 he placed on the walls of his office a poster, approximately two feet by three feet in size, which contained the legend “Wanted by the F.B.I.” Beneath this legend were drawings of H. Rap Brown, Angela Davis and Eldridge Cleaver, who at the time were fugitives sought by the Federal Bureau of Investigation for the offense of unlawful flight to avoid prosecution. Below these likenesses were three additional lines:

“Faith, Beauty, Integrity

REWARD

Love-Peace-Happiness”

Appellant stated that he placed the poster in his office as “a symbolic statement and protest” because he believed “that the individuals depicted in the poster * * * were not being depicted fairly by the mass media and public opinion”.

Appellant’s co-workers brought the poster to the attention of appellee Jenkins, Chief Adult Probation Officer, who, upon observation, directed appellant to remove the poster within two days or face suspension. Jenkins stated that in his opinion “the poster was offensive to law enforcement, was unprofessional, had no place in a public building, was disrespectful and in poor taste”. Several employees stated that if appellant was permitted to keep the poster on his wall, they would, as a form of protest to appellant’s poster, place upon their walls posters offensive to various other ethnic or religious groups. Jenkins “had no doubts that if [he] did not take immediate action, these other posters would have gone up on office walls and the result on work production and morale would have been devastating at a time when tremendously heavy case loads impose a severe burden upon my staff.”

Appellant disobeyed Jenkins’ order to remove the poster and was suspended for a period of five days, the letter of suspension stating that it was “based on your refusal to remove from the wall of your office a poster sign that I deem to be unprofessional and in poor taste”.

Appellant sought administrative review of his suspension pursuant to the rules of the Civil Service Commission of the City and County of San Francisco. The matter was heard by an Employee Grievance Appeals Committee, which found that appellees had violated appellant’s constitutional right of free expression. The Committee’s decision was advisory only and was rejected by Jenkins. This action followed, appellant contending in the district court, as he does on this appeal, that appellees’ actions were in violation of his First, Fifth and Fourteenth Amendment rights.

Opinion of District Court

The district court was of the opinion that appellant had failed to state “a cause of action under the Civil Rights Act”, and that even if a cause of action had been stated, the affidavits filed on behalf of the appellees “show that the poster * * caused a substantial and material interference with the working of the Probation Department”, and that the “conclusory statements” in appellant’s complaint and affidavit that “no disruption was caused by the poster was not sufficient to put the matter in issue”. Indulging “every legitimate inference to be drawn” from appellant’s evidence, the court concluded that “there is no evidence of sufficient substance to support a verdict” for the appellant and that the appellees “are entitled to summary judgment”.

Contentions on Appeal

Appellant contends that (1) the exercise of his right cf. free expression may not be infringed by his superiors in the absence of a clearly defined policy which describes the circumstances in which such expression will not be allowed; and (2) his poster was constitutionally protected expression, and no showing of a countervailing and compelling state interest which would justify suppression has been made by appellees.

Absence of Formal Regulations

Appellant first argues that his suspension was constitutionally impermissible since the Probátion Department did not have “carefully delineated” regulations which “forbid the placing of posters on the walls of its employees’ offices”, and other employees “have decorations of a political or social nature on their walls and are not subjected to discipline”. We find no merit in this contention and agree with appellees that they had discretion to determine that appellant’s office was an inappropriate place to display a poster expressing approval of persons who were then fugitives from justice.

It is not essential that a public employer spell out in detail all conduct which is deemed improper and may result in disciplinary action. It is “inherent in the employment relationship as a matter of common sense”, Meehan, supra at 835, that a probation officer does not have the right to place on his walls a poster favorably depicting persons who are fugitives from justice. His supervisor could reasonably conclude that the poster was unprofessional, in poor taste, and inconsistent with the proper performance of appellant’s duties as a probation officer. The supervisor was acting within his discretion in directing appellant to remove the objectionable poster within two days or face suspension. The sanction of a five-day suspension was imposed only after appellant failed to comply with the warning and order.

Applicability of First Amendment

The district court found that the “main issue” was “whether the First Amendment is applicable * * * [where] a public employer seeks to regulate the manner in which a particular employee may express himself during work hours and on work premises”. Appellant argues that his poster was constitutionally protected expression and that no compelling reason has been given to justify its suppression by appellees.

It is well settled that First Amendment rights of expression are not absolute, and that regulation as to time, place and manner of exercise is proper when reasonably related to a valid public interest. Cox v. Louisiana, 379 U.S. 536, 558,. 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). While “[t]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected”, Keyishian v. Board of Regents, 385 U.S. 589, 605-606, 87 S.Ct. 675, 685, 17 L.Ed.2d 629 (1967), “it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). The problem “is to arrive at a balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees.” Id.

The governmental interest in maintaining a high level of service by assuring the efficiency of its employees in the performance of their tasks “comprehends the maintenance of discipline, the prevalence of harmony among coworkers, and the elimination of conduct which may reasonably be thought to have ‘impeded’ the proper performance” by a public employee of his duties. Goldwasser v. Brown, 135 U.S.App.D.C. 222, 417 F.2d 1169, 1176 (1969), cert. denied, 397 U.S. 922, 90 S.Ct. 918, 25 L.Ed.2d 103 (1970). This governmental interest may, consistent with the First Amendment,' require public employees “to suspend or refrain from certain activities * " * that are embraced within the constitutional rights of others, when such activities are reasonably deemed inconsistent with their public status and duties”. Meehan, supra 392 F.2d at 832.

Appellant’s major function as a probation officer was to deal with divorce and child support problems by emphasizing “the need for faithfully paying the amounts either ordered by the court or agreed by the parties”. His supervisor could reasonably conclude, as he did, that it was inconsistent with appellant’s function as a probation officer to place on the walls of his office a poster favorably depicting persons who were then fugitives from justice. In addition, the supervisor reasonably concluded from the reaction of appellant’s co-workers that the poster would impair the efficiency of the Department through dissension and disharmony among the employees.

At oral argument counsel for appellant relied heavily upon the recent decision of the District of Columbia Circuit in Waters v. Peterson, D.C.Cir., 495 F.2d 91 (1973). In that case employees were suspended for five days for demonstrating in a public cafeteria and during lunch hour against alleged racial discrimination by two white female supervisors in the employment practices of the Bureau of the Census. It was held that a sign carried by the employees was constitutionally protected expression and that their interest in free expression outweighed the asserted governmental interest in “a tranquil environment for government employees during their lunch hour”. The court expressly distinguished Goldwasser, supra, decided by' the same court, which involved classroom statements by a teacher during work hours, “with the court noting that an altogether different question would be presented by speech off-hours outside the classroom”. In Waters the court noted also that unlike Meehan, supra, and Goldwasser, there had been “a suspension notwithstanding the lack of a specific warning”. Here appellant was given a specific warning and reasonable opportunity to remove the objectionable poster before any disciplinary action was taken.

We concude that in this case the governmental interest in promoting the efficiency of the public service outweighs appellant’s asserted rights of expression “during work hours and on work premises ”, and that the district court properly granted summary judgment of dismissal.

Affirmed.

      . Appellant sought injunctive and eompensatory relief. Following denial of an application for a preliminary injunction, appellees filed a motion to dismiss. The court decided to consider matters outside the pleadings, treated the motion as one for summary judgment under Rule 12(b), and granted the motion on the basis of the pleadings and affidavits filed by both parties. The parties agree that the facts are essentially undisputed.^

      . Jenkins stated in Ms affidavit that the employees had informed him that “they would be entitled to post, and would or probably would post, posters dealing with such subjects as a Nazi officer with phraseology insulting to Jewish persons, a white-sheeted Ku Klux Klan member with insulting language directed toward Black People, a picture favorably depicting the person who shot Martin Luther King.”

      . Appellant gave as his reasons for failing to comply with the order that (1) there were no regulations regarding the decoration of offices; (2) “other employees within the Department have decorations of a political or social nature on their walls and are not subjected to discipline”; and (3) he “dealt with many minority people, who upon observing the poster identified strongly with [him], became more relaxed, less guarded and more willing to talk and listen to Mm.”

      . Two affidavits of Jenkins and affidavits of four other employees of the Probation Department were filed on behalf of the appellees. The clerk typist and receptionist in the Family Unit stated that the poster was disruptive to her, she was unable to concentrate on lier work, and she would not do any more typing for ajjpellant. Two others stated that the poster made them “extremely upset” and “extremely angry”, one of them (a senior probation officer) stating further that it was a “detrimental morale factor”. Another senior probation officer stated that as a former police officer the poster personally offended him and that unless it was removed “a problem would arise within the department since other former police officers were also offended by the poster”.

      . There is no evidence that any of the “decorations” placed on the walls by other employees were objectionable or inappropriate for a probation department.

      . See Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822, 835 (1968) quoted with approval in Waters v. Peterson, infra, at n. 9.

      . The probation department is in effect an arm of the Superior Court and engaged in law enforcement.

      . This case is factually distinguishable from those cases which have held that disciplinary sanctions may not be imposed for an employee’s violation of a vague or uncertain statute or regulation.

      . Appellant relied heavily on Pickering in the district court. In that case a public school teacher wrote a letter to a local newspaper criticizing the board of education and superintendent for their handling of a bond issue and allocation of funds. The Court found that the interest of the teacher in commenting on matters of public concern outweighed the interest of the State in promoting the efficiency of its school system. In distinguishing Pickering the district court properly noted the critical distinction between expressions outside work premises during off-duty hours and those carried on during work hours and on the work premises.

      . As the district court well said :
      “It is essential to the success of every business enterprise or the operations of government that a working atmosphere be created which is conducive to both the majority of the employees of the enterprise and to its clients. It is clear that one who is charged with establishing this atmosphere cannot be successful if each of his subordinates is free to express himself in any manner and in any place that he so pleases, within the course and scope of his employment.”

      . One of the panel of three dissented and would have affirmed the summary judgment of dismissal on the opinion of the district court, 341 F.Supp. 441 (D.D.C.1972).


author: MOORE, Circuit Judge: FEINBERG, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. ONE REEL OF 35MM COLOR MOTION PICTURE FILM ENTITLED "SINDERELLA", SHERPIX, INC., Claimant-Appellant.
    No. 52, Docket 73-1171.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 31, 1973.
    Decided Feb. 11, 1974.

      Edmund C. Grainger, Jr., New York City (O’Brien, Raftery, Rosenbloom & Grainger, New York City, on the brief), for claimant-appellant.
    Donald B. Nicholson, Atty., U. S. Dept. of Justice, Washington, D. C. (John L. Murphy, Chief, Government Regulations Section, Crim. Div., Dept. of Justice, Robert A. Morse, U. S. Atty., for the Eastern District of New York, Brooklyn, N. Y., and Carl I. Stewart, Asst. U. S. Atty., on the brief), for plaintiff-appellee.
    Before MOORE, HAYS and FEINBERG, Circuit Judges.
   MOORE, Circuit Judge:

A short color motion picture film entitled “Sinderella” was offered for entry into the United States, was screened for entry by Customs officials and was then seized by them as being in violation of 19 U.S.C. § 1305 which prohibits the importation of obscene material. On June 6, 1972, the government filed a complaint in rem to have the film forfeited, confiscated and destroyed. Thereafter, the owner-claimant of the film, Sherpix, Inc., filed its claim and answer directed towards securing the release of the film. On November 3, 1972, the case came on for trial before Chief Judge Jacob Mishler without a jury and on December 29, 1972, he filed his decision directing the forfeiture of the film. On January 4, 1973, a judgment was entered ordering the film “forfeited and condemned pursuant to section 305 of the Tariff Act.” From that judgment the claimant Sherpix, Inc., takes this appeal.

The government’s case consisted solely of placing the film in evidence and exhibiting it to the Court. The claimant then introduced the testimony of three experts. Their respective qualifications, the subject matter of their testimony and their conclusions have been so well and succinctly set forth in the trial court’s opinion, 369 F.Supp. 1082 (U.S. D.C.E.D.N.Y.1972) that our affirmance could rest upon that opinion were it not for the fact that on June 21, 1973 the Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, in Paris Adult Theater I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446, and companion cases purported to vary somewhat previous standards set by that Court for the determination of so-called pornography cases by stating:

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work taken as a whole, appeals to the prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller, supra, 413 U.S. at 24, 93 S.Ct. at 2615.

At the time of the trial, neither trial court nor counsel had the benefit of Miller and related cases. Nor did the trial court when writing his opinion. Our task now must be to ascertain whether the Judge improperly decided any questions of law and/or fact in light of Miller and Paris Adult Theater I upon the proof before him.

The trial judge did not restrict the testimony which claimant proffered in any way including the opinions of the three “experts”, and his opinion makes clear the basis for his decision. Therefore, it is unnecessary for us to ask for a rebriefing and reargument in light of Miller. The film has been exhibited to us. This exhibition plus the record are quite adequate for reviewing purposes.

A judge trying a case without a jury must, of necessity, be “the trier of fact”. It was for him to decide as a matter of fact whether the Miller “basic guidelines” had been met. A jury in this case would have been selected from members of communities in the Eastern District of New York, i. e., Brooklyn, Long Island and Staten Island. In theory they would be supposed to know how an “average person” would apply “contemporary community standards” to whether Sinderella appealed to their “prurient interest”. The Judge was vested with this same power and burden. His task was to gauge the reaction of the community when, as and if it viewed the film which he saw. The community could not extend beyond the ken of the jury and, in this case, the Judge. Thus the narrowing geographic standards of Miller have been met. In fact the Judge at the opening of the trial quite understandably inquired: “How'am I to judge national standards?” Naturally he could not possibly do this. Even State standards or city-wide standards would have been too broad. In final analysis he, as a jury, had to appraise local contemporary community standards as he believed they might exist.

Appellant’s pre-Miller arguments that the government failed to introduce any evidence other than the film itself and that the importer consented to having the exhibition of the film limited to adults have both been rejected by the Supreme Court.

In Paris Adult Theater I v. Slaton, supra, 413 U.S. at 56, 93 S.Ct. at 2634, Chief Justice Burger, stated for the majority (5 to 4):

Nor was it error to fail to require “expert” affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence. * * * The films, obviously, are the best evidence of what they represent.

As to the “Adults Only” argument, the opinion, 413 U.S. at 68, 93 S.Ct. at 2641 stated that “the proposition that conduct involving consenting adults only is always beyond State regulation, is a step we are unable to take.” (footnotes omitted).

More fundamental is appellant’s point that “The film is not obscene as a matter of law and it points to other films which have narrowly escaped court condemnation.” Obscenity, however, cannot be judged on a comparative basis. If the test were, is this film worse than many which are being shown in this metropolitan area, the answer would be negative. For some reason films quite obviously obscene are being allowed, permitted or tolerated by local law enforcement agencies in certain areas and theatres but the existence of these enclaves does not create a community standard.

In its various opinions over the last few years, the Supreme Court virtually confesses its inability to define obscenity in specific and objective terms. Probably every Judge would admit to this inability but in reaching a decision would rely upon Mr. Justice Stewart’s qualification of his confession, namely, “But I know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1963). Having seen the film, we can say that it consists of a “prurient, patently offensive depiction * * * of sexual conduct” which is definitely “hard-core” pornography. The Supreme Court, undoubtedly realizing the difficulties attendant to any objective standards for obscenity gave “a few plain examples” of possible definitions under (b) of its above-quoted guidelines, namely:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Miller, supra, 413 U.S. at 25, 93 S.Ct. at 2615.

Sinderella, departing substantially from the conduct of her namesake of the fairy tale, “Cinderella,” clearly comes within these examples.

As for the “experts”, the trial judge was entitled to disregard their testimony. Their chief themes were that a viewing public might find an element of humor in this animated cartoon and that films much worse are being exhibited. If there be humor in watching the instantaneous anatomical reaction of the Prince to the charms of Sinderella and straight way capitalizing thereon by having intercourse with her, it could at best only produce a brief community smirk. Every scene has a single purpose, sexual activity. The fact that the characters are only animated puppets does not save the film. As for other films, if they offend contemporary local community standards, possibly local indignation can arouse local prosecutorial action.

If the community chooses to adopt a “laissez-faire” policy, this should be their choice. Fortunately, we do not have to decide upon the permitted range of pornography which judging by the frescoes of the early dynasties of Egypt, the relics of Pompeii, the temples of India and the ancient prints of Japan has not been altogether unknown throughout the ages. Our problem is only does this film come within the ban of § 1305 and the Miller guidelines. It as no redeeming value whatsoever and should be banned. It may be true that in the field of pornography things “have gone about as fer as they can go” but this does not justify adding another import to our fast accumulating collection.

Judgment affirmed.

FEINBERG, Circuit Judge

(concurring) :

I concur in the result.

      . The statute in pertinent part is as follows: Tariff Act of 1930, Title 19, United States Code § 1305:
      § 1305 Immoral articles; prohibition of importation (a) all persons are prohibited from importing into the United States from any foreign country * * * any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing or other representation, figure or image on or of paper or other material or any cast, instrument, or other article which is obscene or immoral * * *.
      There is no definition of “obscene” in the statute.

      . Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492; United States v. 12 200 ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500, and United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513.

      . On June 25, 1973, three additional cases were decided: Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (remanded to State courts for reconsideration in light of Miller and Paris Adult Theater I) ; Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (conviction of theatre manager for exhibiting obscene film, reversed and remanded) ; and Alexander v. Commonwealth of Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (reversed and remanded).

      . United States v. Language of Love, 432 F.2d 705 (2d Cir. 1970) ; United States v. “I Am Curious Yellow,” 404 F.2d 196 (2d Cir. 1968) ; United States v. “491”, 367 F.2d 889 (2d Cir. 1966).

      . Oklahoma, R. Rodgers and O. Hammerstein, III, (“Everything Is Up To Date In Kansas City”).


author: CHOY, Circuit Judge:

text:
    HARTFORD FIRE INSURANCE COMPANY, Plaintiff-Appellant, v. PACIFIC FAR EAST LINE, INC., a corporation, the vessel PACIFIC BEAR her hull, tackle, apparel and furniture and Doe One through Doe Three, Defendants-Appellees.
    No. 71-2856.
    United States Court of Appeals, Ninth Circuit.
    Feb. 4, 1974.

      Stephen McReavy, John E. Droeger (Argued), Hall, Henry, Oliver & McReavy, San Francisco, Cal., for plaintiff-appellant.
    George L. Waddell, Harvey I. Wittenberg (Argued), Dorr, Cooper & Hays,. San Francisco, Cal., for defendants-appellees.
    Before CHAMBERS, CHOY and WALLACE, Circuit Judges.
   CHOY, Circuit Judge:

Appellant, Hartford Fire Insurance Company (Hartford) appeals from an interlocutory judgment limiting the liability of appellee, Pacific Far East Lines (PFEL), to $500 for damage to an electrical transformer shipped aboard appellee’s vessel, the SS Pacific Bear. Judgment was granted after a separate trial held pursuant to F.R.Civ.P. 42(b) and jurisdiction resides here under 28 U.S.C. § 1292(b). We reverse.

The sole question presented for review is whether the large electrical transformer, attached by bolts to a wooden skid but not otherwise boxed or crated, constituted a “package” within the meaning of Section 4(5) of the Carriage of Goods by Sea Act (COGSA). 46 U. S.C. § 1304(5).

Hartford’s subrogor, the Black Construction Company (Black), ordered a 10,000 KY transformer from the General Electric Company. The transformer measured 13 feet 1 inch in height, 11 feet 7 inches in length, 7 feet 8 inches in width, and weighed some 36,700 pounds. Intended for use outdoors, the transformer was designed to stand freely on the ground or other flat surface. As a part of its normal manfacturing process, integral lifting lugs were attached to the transformer’s four upper corners for purposes of its movement and transportation. Although it was thus suited and intended for handling and transporting, at the specific request of Black, General Electric also mounted and bolted the transformer to- a heavy wooden skid in order to protect it during shipment. Thus fastened to its skid, the transformer was transported by railroad flatcar to San Francisco where it was loaded aboard PFEL’s vessel for its-destination, Agana, Guam.

The transformer was delivered' to PFEL undamaged, but en route to Guam its low-voltage bushings were extensively damaged and water vapor entered the transformer. The cost of repairing this damage, alleged to be in excess of $5,000, was reimbursed by Hartford to Black, for which Hartford now seeks recovery from PFEL. PFEL admits liability, but maintains that because the skidded transformer was a “package” it is liable only up to the $500 maximum limit of the statute, since no value for the cargo in excess of this amount was declared in the bill of lading. Hartford argues that the transformer as skidded was not a “package” within COGSA’s definition where the transformer was not attached to the skid for purposes of its handling or transportation, but solely for the protection of the transformer. We do not accept Hartford’s rationale for defining a “package,” but we nevertheless conclude that the transformer was “not shipped in [a] package,” and accordingly reverse and remand for a determination of PFEL’s liability according to the number of customary freight units applicable' to the transformer.

COGSA was enacted in 1936, more than a decade after the principles embodied in the act had been agreed upon and ratified by the United States along with other commercial nations at the Ocean Bill of Lading Convention in Brussels. Commonly known as the the Hague Rules, the central purpose of these earlier agreements was to establish international uniformity in certain matters relating to ocean bills of lading, bn a basis fair to ocean carriers, cargo owners, insurers and bankers. Hearings on S.B. 1152 before the Committee on Commerce, U. S. Senate, 74th Cong., 1st Sess. on a Bill relating to Carriage of Goods by Sea, 15 (1935) [hereinafter Hearings]. Arrived at after long and deliberate negotiations, both the Hague Rules and the later statute were effected by compromise among the various interested parties. Then existing law was modified by COGSA to give greater protection to the cargo interests in several respects. The most significant of these were: (1) when goods were received by the carrier in sound condition but were delivered damaged, the burden of proof was placed on the carrier to show how the damage occurred and that the carrier was not responsible therefor; (2) owners of goods were allowed adequate time within which to file claims against the carriers where damage occurred; and (3) the carriers were to accept greater liability for damages per package without a corresponding increase in freight rates. Hearings, supra at 18; see Pan-Am Trade & Credit Corp. v. The Campfire, 156 F.2d 603 (2d Cir.), cert. den. sub nom., Waterman Steamship Corp. v. Pan-American Trade & Credit Corp., 329 U.S. 774, 67 S.Ct. 194, 91 L.Ed. 666 (1946).

The language of the Hague Rules was incorporated almost without change into COGSA. However, Congress made one revision with regard to the language of Section 4(5). Whereas the Hague Rules limit a carrier’s liability “per package or unit,” COGSA more explicitly provides that the $500 limit shall apply “per package . . . or in the case of goods not shipped in packages, per customary freight unit . ” This change delineates more clearly than do the Hague Rules that the limitation on the carrier’s liability depends on whether the goods are shipped in a “package,” as distinguished from “goods not shipped in packages.” In the latter case, based upon the number of customary freight units applicable to the nonpackaged goods, liability could well exceed the statutory limit of $500 per package. It was not the purpose of the act, therefore, to relieve the carrier of its normal responsibility for damage to cargo or to unduly limit its liability for just claims when goods have not been shipped in packages. Stirnimann v. The San Diego, 148 F.2d 141, 143 (2d Cir. 1945).

Although the difference in limitation of liability clearly turns on whether the goods are in a “package,” Congress did not define this term, and left no interpretative clues in either the statute itself or in any of the legislative hearings. But surely Congress was aware of technological advances since the Hague Rules were adopted such as pallets and forklifts, which by the time of the statute’s enactment were being utilized by the industry. Yet, despite such progress in the mode of transporting cargo, Congress chose to retain the commonly used term “package” in the statute, adding the alternative phrase “goods not shipped in packages.” These industry advancements do not justify any overextension of the statutory term “package.” See Leather’s Best Inc. v. S. S. Mormaclynx, 451 F.2d 800, 814-815 (2d Cir. 1971) where a large metal container holding numerous small cartons of leather goods was held not be be a “package.”

“ [Legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.” Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488 (1944). Since no specialized or technical meaning was ascribed to the word “package,” we must assume that Congress had none in mind and intended that this word be given its plain, ordinary meaning. Malat v. Riddell, 383 U.S. 569, 571, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966); Bruhn’s Freezer Meats v. United States Department of Agrieulture, 438 F.2d 1332, 1338 (8th Cir. 1971). See generally 2A Sutherland on Statutory Construction § 47.31 at 155-56 (4th ed. 1973).

The dictionary definitions of “package,” though alone insufficient, provide at least a starting point in this inquiry. Webster’s Third New International Dictionary 1617 (1966) defines a package as follows: “a small or moderate sized pack: bundle, parcel ... a commodity in its container ... a covering wrapper or container ... a protective unit for storing or shipping a commodity.” The word “package” is defined in Black’s Law Dictionary 1262 (rev. 4th ed. 1968) as: “a bundle put up for transportation or commercial handling; a thing in form to become, as such, an article of merchandise or delivery from hand to hand .... As ordinarily understood in the commercial world, it means a shipping package.”

In one of the first British decisions to consider the question of what is a “package,” the court interpreted that term in the context of the Carrier’s Act, a statute which similarly to COGSA limited the carrier’s liability for articles “contained in any parcel or package,” unless a greater value was declared for the goods. Whaite v. Lancashire & Yorkshire Railway Co. [1874] L.R. 9 Ex. 67. The case involved a group of oil paintings placed into a four-wheeled wagon which had sides but no top, such that the identity of the paintings themselves was hidden, though it was clear that paintings were being transported. Bramwell, B., stated his opinion as follows:

“I think this waggon with its contents was a ‘package’ within the meaning of the Act. Although one would not commonly describe it in that way, yet, looking at the object and purpose of the Act, I think we are not only entitled, but compelled to say that it was a ‘package or parcel’ within the section. It is to be observed that the plaintiff himself and his foreman authorize us in so describing it, for they say they ‘packed’ the goods in the waggon, and no one would doubt that this expression was rightly used; but if so, then the waggon so packed with goods was a package. Further, the packed waggon had this quality of a package about it, that the pictures were so packed by the plaintiff that, though the defendants could see that there were pictures in the waggon, they could not see what was the exact character of the pictures, which the plaintiff’s mode of packing concealed. The rule must, therefore, be made absolute to reduce the verdict to 20£.” Cleasby, B., also observed: “It would be absurd to say that the waggon was too large to be a package, plainly, size cannot be a criterion.”
Finally, Pollack, B., stated: “The Act uses the words ‘parcel’ and ‘package’. Both words being used, this gives us some assistance in arriving at the meaning of what each signifies. I think that this was a package, if not a parcel.”

A later decision, Studebaker Distributors Ltd. v. Charlton Steam Shipping Co., [1938] 1 K.B. 459, 467, cites the language of Whaite approvingly, but reaches a contrary result on differing facts. The court there held that a shipment of sixty unboxed automobiles could not justifiably be considered sixty separate packages, saying:

“It seems to me that the primary object of this clause is to protect a shipowner against receiving an article of considerable value so covered as to prevent him from seeing what it is . I do not feel that I can hold that a motor car put on a ship without a box, crate or any form of covering is a package, without doing violence to the English language.”

See also Stirnimann v. The San Diego, supra 148 F.2d at 143.

More recent decisions, however, because of the varied items of cargo considered, reveal far less consistency in the criteria used to determine what constitutes a “package.” See Aluminios Pozuelo Ltd. v. S.S. Navigator, 407 F.2d 152, 154 (2d Cir. 1968). They indicate that regardless of size, shape or weight, cargo fully boxed or crated is a “package” under the act where the mode of packaging conceals the identity of the goods being shipped. On the other hand, freestanding cargo not enclosed in a box or crate has been held to constitute goods not shipped in a “package.” The more troublesome decisions involve situations where some “preparation for transportation has been made which facilitates handling, but which does not necessarily conceal or completely enclose the goods.” Aluminios, supra at 155.

In Panned v. United States Lines Co., 263 F.2d 497 (2d Cir. 1959) modifying 157 F.Supp. 422 (S.D.N.Y.1957), a yacht, placed upon and lashed to a wooden cradle was listed in the contractual bill of lading as a “package.” Since the yacht was shipped on the deck of appellant’s vessel, COGSA was by its own terms inapplicable (see 46 U.S.C. § 1301(c)). The court held that the specific listing in the bill of lading should prevail over the general term “package” in the statute. But, the court carefully noted in dictum that if COGSA had been applicable, the yacht could hardly have been deemed a “package” so as to limit the carrier’s normal liability. 263 F.2d at 498; see Petition of United States, 105 F.Supp. 353 (S.D.N.Y.1952), modified and remanded sub nom., Petition of Isbrandtsen, 201 F.2d 281 (2d Cir. 1953) (locomotives stowed on rail and timber beds and secured by wire lashings, clips and turnbuckles held not to be a “package”).

Yet, in a later decision, relying on Middle East Agency v. The John B. Waterman, 86 F.Supp. 487 (S.D.N.Y.1949), the court reached an apparently contrary result when a 3-ton toggle press, fastened to a wooden skid in order to facilitate handling and transportation, was held to constitute a “package” and thereby limited recovery for damages to'$500. Aluminios, supra 407 F.2d at 155.

Both parties urge that the test in Aluminios of facilitating the handling or transportation of cargo be adopted in this ease. But Hartford contends that the facts here are distinguishable from those in Aluminios since the skid was not intended to facilitate the handling of the transformer, which was already movable by means of its lifting lugs, the sole purpose of the skid being to protect the transformer. PFEL maintains, however, that the purpose for which the skid was attached to the transformer should not be a controlling factor, and the skidded transformer should be deemed a “package” regardless of the skid’s intended purpose.

Any distinction based upon the subjective purpose for which the skid was attached should not be the test for resolving the issue. The skid certainly protected the transformer to some extent, though obviously unsuccessfully, by preventing it from shifting and sliding, and from contact with other cargo during transit. And, the skid could have been utilized to facilitate the transportation of the transformer. Nevertheless, we are unpersuaded that by simply attaching the transformer to a wooden skid, the shipper created a “package.” If Black had shipped the transformer sans skid, in no way could it be considered a “package” within the meaning of COGSA. General Motors Corp. v. Moore-McCormack Lines, Inc., 451 F.2d 24 (2d Cir. 1971). To hold that somehow a “package” evolved from the mere attachment of the machine to a wooden skid seems a highly unreasonable result. We hold that the electrical transformer bolted to a wooden skid was “not shipped in [a] package.”

Reversed and remanded.

      . 46 U.S.C. § 1304(5) provides: “Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods' have been declared by the shipper before shipment and inserted in the bill of lading. This deelaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier.
      “By agreement between the carrier, master, or agent of the carrier, and the shipper another maximum amount than that mentioned in this paragraph may be fixed: Provided, That such maximum shall not be less than the figure above named. In no event shall the carrier be liable for more than the amount of damage actually sustained.”

      . Act of April 16, 1936, ch. 229, 49 Stat. 1207.

      . Hearings, supra at 47 it is stated that: “Another beneficial and noteworthy provision of the Hague Rules is the stipulation which makes the carrier liable for loss or damage up to £ 100 per package, or unit, unless a greater value shall have been declared by the shipper and inserted in the bill of lading. This is important when we recall that present limits are usually $100 or $250; in fact, one instance is recorded of a limit of 10 francs.”

       6A Knauth’s Benedict on Admiralty 869, 873 (rev. 7th ed. 1969) (containing the text of the Hague Rules). See also The Bill, 55 F.Supp. 780, 782 (D.Md.1944) where it is noted that the phraseology of the several successive bills read “$100 per package or unit; $500 per package or unit; $500 per package or, in case of goods not shipped in packages, per customary freight unit.”

      . The only reference in the COGS A hearings to a judicial decision concerning the “package” limitation occurred when it was noted that in a Supreme Court decision it was “assumed . . . that a liability limited to $100 on a car worth $3,900 was not improper.” Searings, supra at 39. In that case, Reid v. Fargo, 241 U.S. 544, 36 S.Ct. 712, 60 L.Ed. 1156 (1916), the Court impliedly held that a fully boxed automobile was in a “package” for purposes of a limitation on the carrier’s liability, and that the express company which had so shipped the automobile, without informing its owner, was liable for the difference in the loss of the cargo.

      . E. g., Leather’s Best, Inc. v. S. S. Mormaelynx, 451 F.2d 800 (2nd Cir. 1971) (99 cartons of leather goods each held a “package”) ; Mitsubishi Int’l Corp. v. S. S. Palmetto State, 311 F.2d 382 (2nd Cir. 1962) (fully boxed rolls of steel, each weighing 32% tons held to be “packages”) ; Deere & Co. v. Mississippi Shipping Co., 170 F.Supp. 479 (E.D.La.1959) (a fully boxed tractor held to be a “package”). See Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 79 S.Ct. 766, 3 L.Ed.2d 820 (1959) (implicit recognition that a fully crated, 19-ton press is a “package”) ; Reid v. Fargo, 241 U.S. 544, 36 S.Ct. 712, 60 L.Ed. 1156 (1916) supra, note 5.
      The Second Circuit has also held that, where the shipping documents did not give the carrier any notice of the number of cartons being shipped and both parties treated the shipment as 9 packages, 9 wooden pallets with 6 cardboard boxes on top of each one, bundled together by four metal straps, with a wooden deck on top, constituted 9 packages. Standard Electrica, S.A. v. Hamburg Sudamerikanische, etc., 375 F.2d 943 (2d Cir. 1967). The Second Circuit later found the lack of notice and the agreement between the parties to be important distinctions when it held that 99 cartons of leather shipped in a single metal container constituted 99 packages. Leather’s Best, supra, 451 F.2d at 815.

      . E. g., General Motors Corp. v. Moore-McCormack Lines, Inc., 327 F.Supp. 666 (S.D. N.Y.), aff’d per curiam, 451 F.2d 24 (2d Cir. 1971) (electric generator shipped without box or crate held not be a “package”) ; Gulf Italia Co. v. American Export Lines, Inc., 263 F.2d 135 (2d Cir. 1959) (freestanding tractor with some parts covered by weatherproofing paper, but with tractor treads showing, held not to constitute a “package”) ; Tiie Bill, 55 F.Supp. 780 (D.Md. 1944), aff’d, 145 F.2d 470 (4th Cir. 1945) (oil shipped in bulk in two deep tanks held not to be a “package”) ; Caterpillar Americas Co. v. S.S. Sea Hoads, 231 F.Supp. 647 (S.D.Fla.1964) (uncrated and unboxed tractor held not to have been shipped in a “package”).

      . In a fact situation strikingly similar to Pamnell, supra, the facilitation of handling test was used to hold that a 42-foot yacht lashed to' a wooden shipping cradle was a package. Island Yachts, Inc. v. Pacific Lakes Line, 345 F.Supp. 889 (E.D.Ill.1971). The facilitation of handling test has also been used to hold that 142 three-to-nine-ton steel coils, rolled, strapped and tied with steel bands, some wrapped in burlap, constituted 142 packages. Nichimen Co. v. M. V. Farland, 462 F.2d 319, 334 (2d Cir. 1972).


author: PER CURIAM:

text:
    Jimmie V. BURNETT, Petitioner-Appellant, v. UNITED STATES BOARD OF PAROLE et al., Respondents-Appellees.
    No. 73-3135
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 27, 1974.
    Jimmie Y. Burnett, pro se.
    John W. Stokes, Jr., U. S. Atty., Gale McKenzie, Anthony M. Arnold, Asst. U. S. Attys., Atlanta, Ga., for respondentsappellees.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

Burnett appeals from the district court’s denial of his petition for mandamus and habeas corpus. In 1958, Burnett was convicted of bank robbery, interstate transportation of a stolen motor vehicle, and federal escape. On July 19, 1966, he was released on parole but was subsequently arrested on December 31 by Georgia authorities for burglary. The federal authorities lodged a detainer against him on January 2, 1968. On January 8, the Parole Board issued the parole violator warrant and then on May 10, after conviction on the state charge, he was sentenced to a term of five years imprisonment. He was released from state custody on February 24, 1971 and returned to the federal authorities. On April 15, 1971, after hearing, his parole was revoked.

In the district court Burnett sought a writ of mandamus to compel the Parole Board to credit his federal sentence with time spent in jail prior to a state trial because he was denied release on bail solely because of the federal detainer lodged against him. The district court denied the petition without prejudice to Burnett’s pursuing his administrative remedies for the credit through the Bureau of Prisons. Burnett based his petition for habeas corpus on the contention that the Parole Board unconstitutionally delayed granting him a parole revocation hearing. Burnett calculated the delay from 1968 when the detainer or warrant was lodged to 1971 when the revocation hearing was held. The district court denied the petition. We affirm.

We recognize the force of Burnett’s contention that if he was denied release on bail by the state solely because a federal detainer was lodged against him he is entitled to credit on his federal sentence for that time spent in jail without bond. Davis v. Attorney General, 425 F.2d 238 (5th Cir. 1970). However, we also reaffirm the district court’s insistence upon exhaustion of administrative remedies in this ease and in any similar cases presented. O’Connor v. Attorney General, 470 F.2d 732 (5th Cir. 1972); Ray v. United States, 334 F.Supp. 901 (N.D.Ga.1971), aff’d, 450 F.2d 347 (5th Cir. 1971) ; cf., Savage v. Henderson, 475 F.2d 78 (5th Cir. 1973). Additionally, Burnett’s implied suggestion that he is entitled to federal credit for the period of time when he was serving the state sentence is frivolous. Savage v. Henderson, supra.

Burnett’s contention that the Parole Board unconstitutionally delayed his parole revocation hearing is foreclosed by our recent opinion in Cook v. Attorney General, 488 F.2d 667 (5th Cir. 1974). The Board postponed Cook’s hearing six years while he was in custody. We concluded that the delay did not deny Cook due process absent a showing of prejudice. Burnett made no such showing.

Affirmed.


text:
    Dean Rene PETERS, Petitioner-Appellant, v. C. P. KIFF, Warden, Macon Prison Branch, Macon County, Georgia, Respondent-Appellee.
    No. 73-2029.
    United States Court of Appeals, Fifth Circuit.
    March 27, 1974.

      Edward T. M. Garland, Atlanta, Ga., for petitioner-appellant.
    Dorothy T. Beasley, Asst. Atty. Gen., Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
    Before COLEMAN, CLARK and GEE, Circuit Judges.
   PER CURIAM:

In Peters v. Kiff, the Supreme Court held that Peters, a Georgia convict of burglary, a member of the white race, had constitutional standing to challenge by habeas corpus the systematic exclusion of Negroes from the grand and pet-it juries which had tried and convicted him. The case had a long and complicated history, set forth at 407 U.S. 494.

In two trials, held in 1966, Peters “made no challenge to the method of selection of grand and petit juries, and he made no challenge to the array of the petit jury. In his appeal [he] still made no claim addressed to the method of selection of the grand and petit juries”, dissenting opinion of the Chief Justice, 407 U.S. 507.

The Supreme Court remanded the case to give Peters an opportunity to establish his claims of systematic exclusion.

Upon remand, the District Court gave three weeks notice of a hearing. When the day arrived Peters moved for a continuance on the ground that his “counsel had virtually not commenced his investigation and preparation and the gathering of evidence to be presented to the court until the morning of the hearing, and that he had found that some of the records were not readily accessible at the time”. The Court denied the continuance, proceeded with the hearing, and denied habeas relief.

The appeal asserts that the denial of the continuance was error and that, in any event, the proof established a prima facie case of discrimination. We disagree as to both and affirm.

As to the motion for continuance, Peters had contended in every available state court and in every available federal court, including the Supreme Court, that both the grand and petit juries had been fatally infected by systematic exclusion of Negroes. When the case finally arrived back in the District Court, Peters had three weeks notice of the hearing he so long had sought. On hearing day, the contention that he needed more time to get ready to support a contention so long and so earnestly promoted must have prompted considerable astonishment. Be that as it may, the disposition of the motion was left to the sound discretion of the trial judge. Its action on such a motion may be disturbed on appeal only if there has been an abuse of that discretion, United States v. Harrelson, 5 Cir., 1973, 477 F.2d 383; United States v. Roca Alvarez, 5 Cir., 1971, 451 F.2d 843.

Assuming that Peters’ right to challenge the composition of the juries he faced had not been waived by his failure to object prior to trial as required by Georgia law, the evidence viewed most favorably to Peters, failed to make out a case of systematic jury discrimination.

Affirmed.

      . 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83.

      . For recent cases in this area, see Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Winters v. Cook, 5 Cir., 1973, 489 F.2d 174 (en banc).

      . Cf. Davis v. Henderson, 5 Cir., 1973, 474 F.2d 1098.


text:
    Ray Otis STRADER, #229411, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-2907
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 27, 1974.
    Ray Otis Strader, pro se.
    John L. Hill, Atty. Gen., Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Ray Otis Strader was convicted in a Texas court of robbery by assault, enhanced by a prior like offense; he is currently serving a life sentence. Strader filed his petition for writ of habeas corpus in federal district court under 28 U.S.C. § 2254, alleging that evidence used against him at trial was the product of an unlawful search and seizure, and that the pre-indictment lineup procedure was defective in that he was denied assistance of counsel and the other participants in the lineup were substantially different from him in appearance. The district court dismissed the petition, and Strader appeals. We affirm.

Strader argues that the search, which revealed the stolen billfolds and money clip, was performed incident to a constitutionally defective arrest. We disagree. The victim of the robbery and assault reported the crime to police, describing the lost property and the two robbers. The following day an informant gave information to the police concerning the robbery, including descriptions of the robbers and of the automobile used by one of them, and the location of an apartment house frequented by the robbers. The police officers were doubtful of the informant’s credibility, but went to observe the premises described. The observing officer saw Strader and another man enter the described automobile; the two men matched the descriptions given by the victim and the informant. The back seat of the automobile was filled with suitcases, leading the officers to believe that the two men were “traveling.” The officers stopped the automobile, arrested the two men, and found the stolen billfolds and money clip in the glove compartment of the car.

Under these circumstances Strader’s arrest without a warrant was lawful. By the time the officers had probable cause to arrest, they reasonably believed that there would not be sufficient time to obtain a warrant before the suspects could escape. The search of the glove compartment was justifiable as incident to a lawful arrest. Chimel v. California, 1969, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685.

In response to Strader’s allegations concerning deficiencies in the lineup procedure, the State argues that Strader effectively waived any right he may have had to counsel at a pre-indictment lineup, and that any differences in appearance between Strader and other persons in the lineup were insubstantial. We need not reach these questions, however, because our examination of the trial transcript convinces us that the district court was correct in its conclusion that the in-court identification of Strader by the victim was of an origin independent from and uninfluenced by the lineup. Robinson v. Alabama, 5 Cir. 1972, 469 F.2d 690, cert. denied, 411 U.S. 909, 93 S.Ct. 1539, 36 L.Ed.2d 199.

Affirmed.

      . The victim had given thorough descriptions of the robbers to police prior to their arrest. He stated unequivocally at trial that the subsequent lineup contributed “not at all” to his ability to identify Strader. (Transcript, P. 16)


author: PER CURIAM. ROSS, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Paul A. BOE, Appellant.
    No. 73-1917.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 16, 1974.
    Decided Jan. 16, 1974.

      Kenneth E. Tilsen, St. Paul, Minn., for appellant.
    William F. Clayton, U. S. Atty., R. D. Hurd and David D. Ginapp, Asst. U. S. Attys., Sioux Falls, S. D., for appellee.
    Before HEANEY, ROSS and STEPHENSON, Circuit Judges.
   PER CURIAM.

Appellant, Paul A. Boe, a Lutheran minister, was found in contempt of court pursuant to 28 U.S.C. § 1826 for refusing to answer certain questions directed to him by a Grand Jury investigation of the Wounded Knee incident. He was ordered confined until he answers the Grand Jury’s question or until the Grand Jury’s term expires.

The appellant makes the following arguments on appeal:

1. The appellant was entitled to a trial by jury on the contempt charge.

2. He was deprived of due process in that he was not given adequate notice of the contempt hearing and was not given' an opportunity to present argument at the contempt hearing.

3. The government’s affidavits denying the appellant’s claims of illegal'eleetronic surveillance were insufficient and, therefore, the appellant’s claims constitute a defense to the contempt charges.

4. The Grand Jury sought information which had been conveyed to him in the course of a confidential communication ; and as a clergyman, he has a privilege to refuse to disclose this information.

5. The government was improperly using the vehicle of the Grand Jury to gather evidence against those already indicted.

We hold that the appellant was not entitled to a jury trial. This is clearly a case of civil contempt. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Bacon v. United States, 446 F.2d 667 (9th Cir. 1971), vacated on other grounds, 408 U.S. 915, 92 S.Ct. 2501, 33 L.Ed.2d 328 (1972); United States v. Handler, 476 F.2d 709 (2nd Cir. 1973).

We hold that the appellant was denied the due process requirements of notice and a meaningful opportunity to present his defense. Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972); Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972); Shillitani v. United States, supra; United States v. Alter, 482 F.2d 1016 (9th Cir. 1973).

We express no opinion as to the merits of appellant’s other contentions.

Judgment of contempt reversed.

ROSS, Circuit Judge

(concurring in part).

I agree that this is a civil contempt proceeding and that no jury trial was required. I do not agree that appellant was denied the due process requirements of notice and a meaningful opportunity to be heard.

There is no question that Dr. Boe knew as early as November 21, 1973, that he was going to have to answer the questions posed or show cause why he should not be held in contempt. He was given notice 10 days prior to the December 14, 1973, hearing on whether or not he would be excused from testifying. After that hearing he was given another opportunity to answer the questions and he declined. That afternoon the contempt proceedings were had. To say that Dr. Boe did not have adequate notice to comport with due process requirements under these circumstances flies in the face of the realities of the situation.

In my opinion there was a meaningful opportunity to present his defense. The only deficiency that I can perceive at this point is that the affidavits of the government were insufficient on the question of possible electronic surveillance in that they did not pertain to all telephone numbers listed in Boe’s affidavit. It would also have been preferable to have the affidavit executed by the appropriate Department of Justice official rather than an Assistant U. S. Attorney.

I find no merit in the other contentions of Dr. Boe hereinbefore set forth in the majority opinion unless it is proved that there has been electronic surveillance.

      . For example, see United States v. Alter, 482 F.2d 1016 (9th Cir. 1973) ; Beverly v. United States, 468 F.2d 732 (5th Cir. 1972).

      . For example, see Proposed Federal Rules of Evidence Rule 506, 56 F.R.D. 183, 247 (1972) ; Mullen v. United States, 263 F.2d 275 (D.C.Cir. 1958) ; In re Verplank, 329 F.Supp. 433 (C.D.Calif.1971).

      . For example, see Beverly v. United States, supra; In re Schofield, 486 F.2d 85 (3rd Cir. 1973).


text:
    Kathryn M. FREED, Plaintiff-Appellant, v. STATE FARM AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    No. 73-3897
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 1, 1974.
    Anthony I. Provitola, DeLand, Fla., for plaintiff-appellant.
    John L. Graham, DeLand, Fla., for defendant-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

Appellant Kathryn M. Freed, a Florida resident, filed suit in federal district court against the State Farm Mutual Automobile Insurance Company (hereinafter “State Farm”), an Illinois Corporation doing business in Florida. She sought damages for injuries she sustained as a result of an accident that had occurred in Maryland when the automobile operated by Daniel T. Green, a Virginia resident and State Farm’s insured, collided with the rear-end of Mrs. Freed’s automobile. State Farm filed a motion to dismiss pursuant to Rule 12(b), F.R.Civ.P. Since jurisdiction was based on diversity of citizenship the district court looked to Florida law, including its conflicts rules, for controlling guidance on whether appellant had-presented a viable cause of action.

In answering this threshold issue, the lower court posed the problem as,

[w]hether [Mrs. Freed] under the facts delineated in the complaint has a direct action against [State Farm] prior to the establishment of [Green’s] liability by judgment or otherwise.

Characterizing the issue thus presented as substantive which under Florida conflicts law is governed by the law of the place of the tort, here Maryland, the court held that appellant had failed to state a cause of action against State Farm since Maryland does not permit a direct action against an insurance company without a prior adjudication of the liability of the insured. See Gorman v. St. Paul Fire & Marine Insurance Co., 210 Md. 1, 121 A.2d 812, 816 (Md.Ct. App.1956); Complaint of Harbor Towing Corporation, 335 F.Supp. 1150 (D. Md.1971).

Freed asserts that the lower court improperly characterized the issue presented as substantive because at least one intermediate Florida appellate court has stated that the Florida rule which permits a direct action against an insurance company is procedural. Noting that a Florida court will apply the law of the forum when a procedural issue is presented in a conflicts case, see Calhoun v. Greyhound Lines, Inc., 265 So.2d 18, 20 (Fla.1972), she maintains that she has stated a claim upon which relief can be granted.

Assuming arguendo that the direct action question is procedural in Florida, it is apparent that Mrs. Freed has misconstrued the applicable Florida cases involving a direct action against an insurance carrier. Florida permits an injured party to join the insurance company as co-defendant with the insured. See Shingleton v. Bussey, 223 So.2d 713 (Fla.1969). No Florida ease has ever held that an insurance company is subject to suit without joining the insured as a party for a complete resolution of the allegedly tortious conduct. In Florida the insurance company must be sued jointly with the insured to withstand a motion to dismiss. Kephart v. Pickens, 271 So.2d 163 (Fla.App.1972).

In this case, appellant failed to join the insured, Green, as a co-defendant. Thus regardless of the applicable law, Maryland or Florida, appellant has failed to state a cause of action.

Accordingly, the judgment of the district court dismissing appellant’s complaint is affirmed.

      . Calhoun v. Greyhound Lines, Inc., 265 So.2d 18 (Fla.1972).

      . See Beta Eta House Corp., Inc. v. Gregory, 230 So.2d 495, 499 (Fla.App.1970).


text:
    COASTAL PETROLEUM COMPANY, Petitioner-Appellee, v. SECRETARY OF the ARMY OF the UNITED STATES of America et al., Respondents, Trustees of the Internal Improvement Trust Fund of the State of Florida, Respondent-Appellant.
    No. 71-2589.
    United States Court of Appeals, Fifth Circuit.
    March 29, 1974.

      Robert J. Beckham, Carole A. Gardiner, Miami, Fla., for respondent-appellant.
    Charlie Luckie, Jr., Tampa, Fla., C. Dean Reasoner, Washington, D. C., Joseph C. Jacobs, Tallahassee, Fla., Irving R. M. Panzer, Washington, D. C., for Coastal Petroleum.
    Robert W. Rust, U. S. Atty., Miami, Fla., Robert L. Shevin, Atty. Gen. of Fla., Tallahassee, Fla., William E. Welch, Acting Dist. Counsel, Corps of Engineers, Jacksonville, Fla., Stanley R. Resor, Secretary of the Army, Washington, D. C., Gen. Litigation Section, Land & Nat. Resoui’ces Div., U. S. Dept. of Justice, Washington, D. C., Robert Grafton, Central and South Fla. Flood Control Dist., West Palm Beach, Fla., Daniel S. Dearing, Chief Trial Counsel, Dept. of Legal Affairs, Tallahassee, Fla., for other interested parties.
   ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC (Opinion December 6, 1973, 5 Cir., 1973, 489 F.2d 777).

Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.

PER CURIAM:

In a vigorous petition for rehearing Coastal strongly protests the inclusion of the validity of the leases under the 1941 statute in the Certification and Questions addressed to the Florida Supreme Court. In support, Coastal asserts that the question of compliance with the 1941 statute was never brought in question in the Court below and, more significantly, there was no evidence pertaining to that issue. We called for response by the Trustees which we deem adequately “detailed” despite the somewhat stringent criticisms of this response made by Coastal.

On the response and the record we are of the clear view that compliance with the 1941 statute was brought specifically and pointedly to the trial court’s attention. Being leases made pursuant to the 1941 and 1945 statutes the District Court’s holding that the leases were valid necessarily contemplates validity under the underlying statute. Whether footage evidence was directed to compliance with the lease, the statute, or both, and whether it affords a sufficient factual basis for resolving the consequent questions of Florida law must be left in the first instance to the Florida Supreme Court.

That Court is fully capable of determining this issue. Indeed, for us to pass upon it initially would be an attempt to decide the very Florida questions which we have certified. But to eliminate any possible intimation that we are deciding the ultimate issue we delete the following portion of the certificate :

“Coastal has never complied with the drilling obligations imposed by the 1941 and 1945 Statutes or by the leases themselves (App.Ex. 66-71).6”

Although probably not so intended the petition for rehearing makes even plainer that this is now wholly a Florida case. What started out as a plausible claim against the United States Corps of Engineers to give federal jurisdiction has now become the very small tail wagging the very big dog as the controversy shifts from mining limestone from beautiful Lake Okeechobee to the energy crisis scramble for 41/2 million acres of off-shore oil leases.

Fortunately, what has now become exclusively a Florida ease can be authoritatively determined by the Florida Supreme Court. Except for the deletion set forth above (n. 2 and accompanying text) the Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

      . Without intimating any opinion it strikes us that there is little real controversy about the facts. There is virtual agreement on footage drilled by lease, well and location. See, for example, “Chart Showing Drilling History” insert p. 7, Coastal’s initial brief (November 15, 1971) which Coastal describes as a “Chart, compiled from exhibits * * * [and] consisting almost entirely of official Minutes of the Trustees”. The problem is the legal significance of these facts under the 1941, 1945 statutes, the leases, or both, as set forth in the questions certified.

      . Footnote 6 read: “6. Adopting Trustee’s Contention Difference No. 5.”
      To retain the original structure and so the Florida Supreme Court can see, as in the case of the differences on fact statements and questions of law, we are not mechanically rewriting the certificate but it is deleted as though physically removed.

      . See Coastal’s brief on rehearing:
      It seems clear, from the Court’s discussion on pages 2—4, that the Court believes that the case still involves the drilling of limestone in Lake Okeechobee. The ecological discussion on those pages is devoted to that issue. It further seems clear, from footnote 6 on page 5, that the Court is under the astonishing impression that all three leases involved here relate to Lake Okeechobee. But the question of drilling for limestone in Lake Okeechobee without Government consideration of ecological matters has long since passed out of the ease, having been foreclosed by the trial judge’s ruling (from which no appeal was taken), and all that is involved now is the basic validity of these leases, the vast bulk of which do not relate at all to Lake Okeechobee.

      . The map insert in Coastal’s brief on rehearing shows the magnitude of these leases:
      Lease Acreage
      224-A 1,936,100
      224-B 1,974,360
      248 660,736
      4,571,196
      These leases extend out into the Gulf of Mexico approximately 10.36 miles offshore along the West Coast of Florida from about Apalachicola to just south of Naples.