author: RONEY, Circuit Judge:

text:
    CERTAIN UNDERWRITERS AT LLOYD’S, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 74-1613.
    United States Court of Appeals, Fifth Circuit.
    April 14, 1975.

      ^ Harold A. Thomas, Henry B. Also-brook, Jr., New Orleans, La., for plaintiff-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Michaelle Pitard, James D. Carriere, Mary Williams Cazalas, Asst. U. S. Attys., New Orleans, La., for defendant-appellee.
    Before TUTTLE, RONEY and GEE, Circuit Judges.
   RONEY, Circuit Judge:

Certain Underwriters at Lloyd’s brought suit against the United States for contribution as a joint tortfeasor to the amount paid in settlement of a medical malpractice suit. The district court granted summary judgment in the United States’ favor. A military serviceman had previously sued the surgeon and nurses of the United States Public Health Service for negligence during an operation in a United States hospital in Louisiana. That suit was dismissed on the ground that the Federal Tort Claims Act does not permit such claims by servicemen against United States medical personnel for injuries received incident to military service. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The serviceman also had brought a direct action against Lloyd’s as malpractice insurer of the operating surgeon, which suit was not dismissed by the court. Lloyd’s seeks contribution to the $75,000 paid to the serviceman in settlement of that suit. Since the United States would be liable to Lloyd’s under the Federal Tort Claims Act if it would be so liable under the law of the state where the tort occurred, the question is whether Louisiana law permits a claim of contribution under these circumstances. We agree with the district court that the serviceman exception under the Tort Claims Act in counterpoint with the Louisiana law of contribution among tortfeasors prevents recovery. We affirm the judgment of dismissal of the insurer’s claim.

A sponge was left inside Clarence Pritchett, a lieutenant colonel in the United States Marine Corps, after an operation in a United States Public Health Service Hospital in Louisiana. Care and hospitalization was being provided incident to Colonel Pritchett’s military service with the United States.

In a malpractice action brought prior to the instant suit, Colonel Pritchett sued the medical personnel involved, including the attending surgeon and the hospital’s nurses who assisted with the operation. Certain Underwriters at Lloyd’s, the surgeon’s medical malpractice insurer, was joined as a defendant under Louisiana’s direct action statute. LSA-R.S. 22:655. The court dismissed the action as to all Public Health Service employees under the Feres doctrine. There is no dispute that the medical services were received by the serviceman as an incident to his military duty and that Feres barred the claim against the United States medical personnel. The court held, however, that the Feres defense was personal to the United States and its employees and did not bar the direct action claim against Lloyd’s as the surgeon’s malpractice insurer. Lloyd’s then settled the lawsuit for $75,-000.00 without litigating to finality its - legal liability.

The present suit was thereafter filed by Lloyd’s in Louisiana state court against the nurses claiming contribution of $37,500 from them as joint tortfeasors with the doctor. The United States removed the case to federal district court which then granted the United States’ motion to substitute itself as proper party defendant for the nurses. 42 U.S.C.A. § 233(c). The United States then moved for summary judgment. The district court granted the motion on the ground that the United States was not liable to the original plaintiff and therefore could not be liable under Louisiana law as a joint tortfeasor. The sole question on this appeal is whether Lloyd’s has a right to contribution under these circumstances.

It is clear that the United States can be sued for contribution as a joint tortfeasor through the provisions of the Tort Claims Act, if a right of contribution exists under state law. 28 U.S. C.A. § 1346(b), § 2674; United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951); United States Lines, Inc. v. United States, 470 F.2d 487 (5th Cir. 1972). The act was only meant to confer a procedural remedy, however, and did not create a substantive cause of action. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Van Sickel v. United States, 285 F.2d 87 (9th Cir. 1960); Lloyd’s London v. Blair, 262 F.2d 211 (10th Cir. 1958). Therefore, the controlling question is whether the substantive law of Louisiana permits contribution recovery from the United States under the facts of this case.

The Louisiana Supreme Court has held that a joint tortfeasor who enters into a compromise settlement with a claimant may obtain contribution from his fellow joint tortfeasor in an independent plenary action. Morris v. Kospelich, 253 La. 413, 218 So.2d 316 (1969), aff’g, 206 So.2d 135 (La.App. 1968). If he proves a tort for which the defendant joint tortfeasor was solidarily liable with him for the amount compensated, he may collect his pro rata share from the defendant joint tortfeasor. The decision was based on LSA-Civ.Code art. 2103 which provides:

When two or more debtors are liable in solido . . . [the obligation] should be divided between them. As between the solidary debtors, each is liable only for his virile portion of the obligation.

The meaning of the term “in solido,” as used in the above statute, is found in Article 2091 of the Civil Code:

There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them exonerates the others toward the creditor.

The basis of Lloyd’s claim of contribution is that under LSA-Civ.Code art. 2324 one who assists another person in an unlawful act is answerable in solido with that person for the damages caused by such act. Lloyd’s claim that Public Health Service nurses assisted in the alleged medical negligence, and therefore were liable in solido with the surgeon for the damages caused to Colonel Pritchett. The essence of Louisiana contribution law is that the tortfeasors among whom contribution is required must each be substantively liable in their own right for the damages caused by the tort.

The Louisiana Supreme Court has held, however, that as long as a substantive cause of action exists between the injured party and both joint tortfeasors, contribution will be granted despite a statutory immunity from suit as between the injured party and one of the joint tortfeasors. Smith v. Southern Farm Bureau Casualty Insurance Co., 247 La. 695, 174 So.2d 122 (1965). The plaintiff in the Smith case was injured in an automobile collision caused by the negligence of her husband and a third-party. The third-party’s insurer, sued in a direct action by the wife, filed a third-party claim for contribution against the husband who had not been made a party to the suit. The husband defended the third-party demand on the ground that Louisiana law grants a husband immunity from suit by his wife. Article 2315 of the Civil Code of Louisiana creates a cause of action in favor of an injured party against those whose fault causes the injury. Since both the husband and the third-party negligently caused Mrs. Smith’s injuries, a cause of action arose in her favor against both her husband and the third-party. Under Civil Code Article 2324, the husband was a true tortfeasor along with the third-party since he assisted in the commission of the tortious activity. The right to contribution among tortfeasors was given not to the wife, but to the third-party. The Louisiana court held that the incapacity of the wife to sue, which was purely procedural and not substantive, could not be extended to protect the husband against the contribution claim.

The Feres doctrine must therefore be examined to determine whether it presents a procedural bar to a cause of action that would otherwise exist, or is based on the absence of substantive liability for the tortious injury.

The Federal Tort Claims Act declares that the United States shall be liable, subject to enumerated exceptions, for injury or damage caused by negligence or wrongful act or omission of any employee of the Government, while acting within the scope of his employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act occurred. 28 U.S.C.A. §§ 1346(b), 2674, 2680. Early in the history of the Act the Supreme Court was faced with the question of its applicability to the claims of servicemen who were injured while in the service of the United States government. In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Court considered the issue in three cases, two of which were medical malpractice suits by servicemen for alleged negligence of Army surgeons. The common fact underlying the three cases was that each claimant, while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces. The only issue of law raised was “whether the Tort Claims Act extends its remedy to one sustaining ‘incident to the service’ what under other circumstances would be an actionable wrong.” 340 U.S. at 138, 71 S.Ct. at 155.

The Court held the Act did not create new causes of action but merely accepted liability under circumstances that would bring private liability into existence. The Court then found no liability of a private individual even remotely analogous to that asserted against the United States by the servicemen, since no American law ever had permitted a soldier to recover for negligence against either his superior officers or the Government. It further could find no state law which permitted members of the militia to maintain tort actions for injuries in the service. Focusing on the “law of the place where the act or omission occurred” language of the statute, 28 U.S.C.A. § 1346(b), which governs consequent liability, the Court noted that the relationship between the Government and members of the armed services is “distinctively federal in character” and succinctly stated that “[n]o federal law recognizes a recovery such as claimants seek.” 340 U.S. at 144, 71 S.Ct. at 158. The effect of the Tort Claims Act was only “to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities.” 340 U.S. at 142, 71 S.Ct. at 157. In summary, the Supreme Court concluded:

. that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law. We do not think that Congress, in drafting this Act, created a new cause of action dependent on local law for service-connected injuries or death due to negligence.

340 U.S. at 146, 71 S.Ct. at 159.

Although the three cases in Feres involved servicemen injured due to the negligence of others in the armed services, the doctrine has been applied to the claims of servicemen for negligence of medical personnel in United States Public Service Hospitals. See Bankston v. United States, 480 F.2d 495 (5th Cir. 1973); cf. Alexander v. United States, 500 F.2d 1 (8th Cir. 1974). See also Lee v. United States, 400 F.2d 558 (9th Cir. 1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969).

In the context of Louisiana law, then, it is seen that there is no substantive cause of action between a serviceman and the United States for tortious injuries received incident to military service. Under these circumstances, the United States cannot be considered liable in solido with Lloyd’s when it is not substantively liable in its own right. Thus, no right of contribution exists under Louisiana law against the United States for injuries to Colonel Pritchett.

Lloyd’s heavy reliance on the Louisiana Supreme Court’s rationale in Smith v. Southern Farm Bureau Casualty Co., 247 La. 695, 174 So.2d 122 (1965), erroneously assumes that the Feres doctrine merely deprives a serviceman of a right to bring an action against the United States. Feres, however, was based on the rationale that there is no cause of action by a serviceman against the Government for service-connected injuries. Thus, the Smith decision is not applicable to this case.

Lloyd’s also relies on the opinions in Wellington Transportation Co. v. United States, 481 F.2d 108 (6th Cir. 1973), and Barr v. Brezina Construction Co., 464 F.2d 1141 (10th Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973). We are in agreement with the expression in those opinions that Feres itself does not bar a third party suit against the United States for indemnity. It is difficult, however, to ascertain whether the ultimate decision in each of the eases is contrary to our holding. The Wellington case was remanded for a determination of whether the third-party had an indemnifiable claim against the United States under admiralty law. Barr held that Utah law barred third-party recovery on the indemnity claim against the United States. In any event, the cases do not control the disposition of this case. If there is any conflict between these Circuits and the Eighth Circuit, which has reached under Arkansas law in Maddux v. Cox, 382 F.2d 119 (8th Cir. 1967), the same conclusion that we have reached under Louisiana law, we align ourselves with the latter.

Our decision is analogous to Louisiana case law which holds that a workmen’s compensation employer cannot be considered a joint tortfeasor subject to contribution, since the employer cannot be sued in tort by the employee. Gifford v. Aurand Manufacturing Co., 207 So.2d 160 (La.App.1968); McLaughlin v. Bras-well, 207 So.2d 158 (La.App.1968); Gros v. Steen Production Service, Inc., 197 So.2d 356 (La.App.1967); Sanderson v. Binnings Construction Co., 172 So.2d 721 (La.App.1965). One of the rationales for the Feres doctrine is the availability of a uniform system of compensation to the injured serviceman, a system whose “recoveries compare extremely favorably with those provided by most workmen’s compensation statutes,” 340 U.S. at 145, 71 S.Ct. at 159. Partially because the United States has a simple, certain, and uniform compensation system for servicemen injured incident to service, Feres held that these servicemen could not sue the United States for these injuries.

Affirmed.


source: Caselaw Access Project

author: DYER, Circuit Judge:

license: Public Domain

text:
    Roy Lee ROWELL, Plaintiff-Appellee, v. TREADWELL FORD, INC., Defendant, Ford Motor Company et al., Defendants-Appellants.
    No. 74-3555
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 11, 1975.
    Michael D. Knight, Mobile, Ala., for defendants-appellants.
    Geary A. Gaston, Mobile, Ala., for plaintiff-appellee.

      Before GEWIN, GOLDBERG and DYER, Circuit Judges.

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

   DYER, Circuit Judge:

Rowell sued Treadwell Ford, Inc. and Ford Motor Company for breach of an express warranty covering a 1972 truck sold to him. Judgment against Ford of $13,137.79 was entered on the jury verdict in favor of Rowell and Ford appeals.

The facts are simple. On August 17, 1972, Rowell purchased the truck in Mobile, Alabama from Treadwell for $24,-339.00. The truck was warranted in writing. While in Orlando, Florida on October 28, 1972, the steering wheel on the truck locked because of a defect in factory material or workmanship, causing an accident. Rowell took the truck to an authorized Ford dealer in Orlando to have it repaired under the warranty which was admittedly in effect. Ford ultimately refused to repair the truck under warranty. Finally, the repairs were made at Rowell’s expense about March 1, 1973. The reasonableness of the time to effect the repairs is not questioned. Based upon a breach of the express warranty Rowell sued for the loss of use of the truck for approximately four months together with the cost of repairs.

Before trial Rowell and Treadwell settled and the case was dismissed with prejudice as to Treadwell. Ford then moved for a dismissal, claiming that as the liability, if any, of Treadwell and Ford on the express warranty was joint, the adjudication on the merits of Tread-well’s responsibility was as well an adjudication of the liability of Ford. The motion to dismiss was denied.

On this appeal Ford assigns as error the court’s failure to dismiss it since the claim under the express warranty was a joint and not a several obligation on the part of Ford and Treadwell. Further, Ford argues that the district court erred in excluding evidence upon which to base the market value of the truck’s use or hire during the time required to make repairs.

Because the warranty states that “Ford and the Selling Dealer jointly warrant . . . that the Selling Dealer will repair or replace” etc., Ford argues that the recovery must be against both or neither. Thus Ford argues the dismissal of Treadwell requires the dismissal of Ford. We disagree. It was stipulated that Treadwell had no obligation to repair the truck in Orlando or to transport the truck back to Mobile for repairs. The warranty provides that “if the owner is traveling or has moved a long distance from the Selling Dealer or needs emergency repairs, any authorized Ford dealer will perform the repairs.” This provision cannot be read to mean that a local authorized Ford dealer warrants that any other authorized Ford dealer will make repairs under the warranty. We are unwilling to hold that a Ford dealer in Mobile is liable in damages resulting from the failure of a dealer in Orlando to make warranty repairs, and thus permit Ford to escape the essential purpose of its warranty. It is clear that the Orlando dealer did not repair because Ford refused to recognize responsibility under the warranty.

With respect to the damage issues we think the court erred in excluding evidence of the expenses ordinarily incurred in connection with the rental of the truck. Rowell’s claim is that as a result of the accident he was caused to lose the truck in' his business for a period of time. The appropriate measure of damages for such a loss has been explicated by the Supreme Court of Alabama.

The rule in Alabama for the measure of damages for the injury to a commercial vehicle is the damages which would remunerate the plaintiff for necessary repairs in substantially restoring the vehicle to its former condition and the market value of its use or hire during the time required to make such repairs and fit it for business.

Wilson & Co. v. Sims, 1948, 250 Ala. 414, 34 So.2d 689, 690.

Rowell attempted to prove the reasonable value of the use or hire of the truck during the time required to make repairs by evidence of rentals to a third party at the rate of $22.50 per hour, $2.50 of which was the cost of a driver. Rowell’s loss however, is not the full rental he could have been paid, but the net amount after reducing the rental charge by necessary expenses obviously incurred such as gas, oil, lubrication, maintenance requirements, depreciation and upkeep. The net amount would restore Rowell his portion as if the warranty had not been breached, while the difference between the gross amount and the net amount would be a windfall to him, since he would be recovering that which would otherwise have been expended by him in the operation of the truck. While there is no Alabama precedent directly in point we have no doubt that Alabama would follow the general rule covering the applicability of net versus gross rental. See 8 Am.Jur.2d, Automobiles and Highway Traffic, § 1047; 25 C.J.S. Damages § 83, p. 905.

The court therefore erred in refusing to permit the cross examination of Row-ell by Ford to elicit the expenses Row-ell would have been required to pay in the operation of the truck, thereby reducing the gross rental to the net rental value to arrive at the proper measure of damages.

Since we affirm as to liability and reverse as to damages, we see no reason to retry both issues. The case is remanded for trial of the damage issue only.

Affirmed in part; reversed in part and remanded with directions.

      . The warranty provided:

        Ford and the Selling Dealer jointly warrant with respect to each 1972 model medium and heavier truck built by Ford that the Selling Dealer will repair or replace any of the following parts that are found to be defective in factory material or workmanship on the following basis:
      Any part during the first twelve months or 12,000 miles of operation whichever occurs first (except tires and diesel engines manufactured by other than Ford, which are separately warranted by their manufacturers); without charge for parts and labor.
      Any part of the engine block, head and all internal engine parts, water pump, intake and exhaust manifolds, flywheel and flywheel housing, clutch housing (excludes manual clutch assembly and clutch release bearing), transmission case and all internal transmission parts (includes auxiliary transmission), transfer case and all internal parts, drive shaft and drive shaft support bearings, universal joints, drive axle housing and all internal parts (excludes drive wheel bearings) and drive axle shafts, after 12,000 miles and during the first 12 months or 50,000 miles of operation, whichever occurs first; for a charge of 50% of the dealer’s regular warranty charge to Ford for parts and labor. The above warranty periods will begin on the date of the original retail delivery or the date of original use by Ford or any of its dealers, whichever is earlier.
      Under the warranty, repairs or replacements will be performed by the Selling Dealer, using Ford’s service parts or Ford Authorized Remanufactured Parts following delivery of the vehicle to his place of business in the United States or Canada. If the owner is traveling or has moved a long distance from the Selling Dealer or needs emergency repairs, any authorized Ford dealer will perform the repairs.


author: JONES, Circuit Judge:

text:
    Elaine M. ORR, Plaintiff-Appellee, v. FRANK R. MacNEILL & SON, INC., Defendant-Appellant.
    No. 73-3063.
    United States Court of Appeals, Fifth Circuit.
    April 10, 1975.

      Christian D. Searcy, Alan G. Greer, Ray H. Pearson, Miami, Fla., for defendant-appellant.
    Robert W. Hervey, Coral Gables, Fla., for plaintiff-appellee.
    Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
   JONES, Circuit Judge:

In a trial before the court without a jury, Elaine M. Orr recovered judgment against Frank R. MacNeill & Son, Inc., in an action for damages from sex discrimination in compensation as an employee. It has appealed.

The appellant is a rather large insurance agency in Miami, Florida. In the findings and conclusions of the District Court it is stated that:

“Two persons are the driving forces in the defendant corporation, Frank R. MacNeill, nearly 88, who still spends at least three to four hours per working day in the office, and his son, Malcolm MacNeill, the vice president of the corporation, who testified that he is in charge of the operations of the company. The plaintiff claims that the senior MacNeill told her to come talk with him if she ever had any problems and that he was still running the show.”

Notwithstanding Mrs. Orr’s claim that the senior MacNeill said that he was “running the show,” the events demonstrate that Malcolm MacNeill was the operating head of the agency with respect to the fixing of Mrs. Orr’s compensation.

The appellee, Elaine M. Orr, went to work for the agency in 1952, it then had four employees. At the end of 1970, the critical time in this controversy, there were over forty employees. In and after 1967 the organization consisted of four departments, Fire Insurance, Casualty Insurance, Claims and Accounting.

John F. Bruns, the head of the Fire Insurance Department, was originally employed by MacNeill as a Special Agent or Field Representative. He continued in that capacity after becoming a Vice President and Manager of the Fire Insurance Department. In addition to his General Supervisory activities in the Fire Insurance Department, his duties included handling the underwriting of the Fire Insurance Department and approving or disapproving fire risks. His primary responsibility and activity was the production of business. Bruns contacted agents, collected overdue accounts, and sought to develop new business for the agency. Upon one or more occasions Bruns established commission arrangements with a company represented by the agency. Malcolm MacNeill testified that this “takes a lot of savvy.”

The Casualty Insurance Department was in charge of James Moore. He was responsible for underwriting the Casualty Insurance business which was acceptable to the company. This responsibility specifically involved reviewing policies written by agents or instructing someone in the department to underwrite acceptable business. When an agent had a risk which he thought might not be acceptable to the company, the agent and Moore would discuss it, and Moore would decide whether or not to accept the risk. His job, as in the case of Bruns, required decision making and the exercise of discretion.

The Claims Department was handled through a separate corporation which was a wholly owned subsidiary of Frank R. MacNeill & Son, Inc. It was in charge of Thomas B. Rogan. He was responsible for assigning all claims work which came into the office, for adjusting and settling claims, and for supervising, hiring, firing, and training approximately ten professional adjusters and ten clerical workers. Rogan had unlimited draft authority with several insurance and casualty companies represented by the agency. He issued loss drafts upon determining that claims should be paid. He assisted in the development of new business. His job, like those of Bruns and Moore, required the making of decisions and the exercise of discretion.

Elaine M. Orr was head of the Accounting Department. She kept the financial and other records, she and others signed checks, she purchased supplies and supervised the maintenance of the building which housed the agency. She was sometimes consulted by those in other departments but usually with respect to accounting matters.

The salaries paid to the four department heads for the years 1966 through 1970, as found by the District Court, were as follows:

As of April FIRE BRUNS CASUALTY MOORE CLAIMS ROGAN ACCOUNTING ORR
1966 $10,400.00 $ 8,996.00 ? 9,100.00 $10,400.00
1967 11.310.00 10,010.00 10,010.00 11.700.00
1968 15.002.00 10,816.00 14.001.00 12.012.00
1969 15.522.00 12,012.00 15.600.00 13,000.00
1970 18.018.00 14,040.00 18.018.00 14,040.00

For the years 1969 through 1971 bonuses were paid as follows:

For the year BRUNS MOORE ROGAN ORR
1969 5 1,000.00 500.00 500.00 500.00
1970 3.500.00 3.500.00 3.500.00 3.500.00
1971 3.500.00 2.500.00 3.500.00 1.500.00

Mrs. Orr has informed this court that the correct salary figures for 1967 are Bruns $15,002, Rogan $14,001 and Orr $12,012. It does not appear that any effort was made to have the court’s findings corrected.

It was the testimony of Mrs. Orr, credited by the District Court although in conflict with the testimony of the elder MacNeill, that she had several discussions with him about her compensation. In 1967 she complained to him that Bruns had gone ahead of her in salary. He told her, so she said, that his son would not approve of her making as much as a man but he would try to work it out. In January 1969 she complained again to the elder MacNeill. He again advised her, so she said, that Malcolm would not approve of her making as much as a man, and he again assured her that he would try to work it out. She quoted him as telling her that she was worth as much as the men. She was aware that Malcolm MacNeill had fixed Bruns’ salary.

It might seem that Mrs. Orr could have decided at some time before 1970 that perhaps the elder MacNeill was not “running the show,” or that part of it which involved the fixing of salaries of department heads and that possibly, in this area, Malcolm MacNeill was “in charge of the operations of the company.” Malcolm MacNeill testified that she did not discuss her salary with him. She testified that she did not discuss salary with Malcolm MacNeill. On further questioning she said she thought she might have talked with him for a few minutes in 1970. Further examination elicited the response “I asked him why I couldn’t — you know, why they wouldn’t approve it, and he said that I didn’t have any business except in the Accounting Department and that these other duties and so forth that I handled had nothing to do with it, and he just wasn’t going to sign it.” It might seem strange that Mrs. Orr could remember so well all that the senior MacNeill said to her on the occasions beginning in 1967 but find it so difficult to recall the conversation with the junior MacNeill. But, of course, this Court accepts the District Court’s determination on credibility.

The District Court concluded that recovery by reason of differences in bonus payments should be denied because the differentiation was based on reasons other than sex.

The District Court noted that, following Mrs. Orr’s resignation, the agency paid her successor almost the same salary as she had been receiving although he was less experienced. The District Court stated that this “underlines the discrimination exercised against” Mrs. Orr. This deduction does not follow. If her successor’s work was done as well, and the contrary is neither found nor suggested by the District Court, it might be said that he should have been paid as well, and this we think follows whether he was more or less experienced than his predecessor or of the same or different sex.

The District Court, it seems, relied upon the testimony of Messrs. Bruns and Rogan, witnesses for Mrs. Orr, as the basis for the finding that “an insurance agency operation of this size depends with success upon the efficient functioning of all of its departments.” Bruns testified as to the differences between the production of business and the keeping of records and stressed the job differences. He expressed the opinion that they were of equal importance. Rogan also pointed out that the functions of the Accounting and Claims Departments were not similar, that the duties were different, and not comparable and that there was no parallel. In response to a leading question Rogan gave an affirmative answer to a query as to whether one function was just as important as another. In her testimony Mrs. Orr recognized the differences between that which she did and that which was done by Bruns and Rogan. She conceded that her accounting activities might be called a mechanical type of thing. She recognized the necessity for the use of judgment and the exercise of discretion in the production and claims departments, and conceded that this was not so in the Accounting Department except in the procurement of supplies.

To buttress its conclusion that the difference in pay between Messrs. Bruns and Rogan on the one hand and Mrs. Orr on the other was based on sex discrimination, the District Court recited that at one time she had been the highest paid of the department heads. If this is in any way relevant it would seem to indicate an absence of sex discrimination. It is recited that three of the four department heads were Vice Presidents of the company and the fourth was the President of the subsidiary corporation. Malcolm MacNeill was a Vice President and it was he who fixed Bruns’ salary and declined to pay Mrs. Orr an equal amount. We know of no rule requiring that the pay of a corporate officer shall be determined by his or her title.

The District Court included in its findings the statement that the jobs in this are not as “substantially equal” as in other cases where recovery has been permitted. Does this mean that the jobs in this case are less than substantially equal? We cannot say. We do say that the evidence does not sustain the District Court’s determination that the jobs here are substantially equal. Nor is there support for its determination that there has been discrimination by reason of sex.

The District Court decided that “based on the unique fact situation in this case, Mrs. Orr is entitled to recover.” To be unique a thing, be it red cow, gray horse, peppercorn or law suit, must be the only one of its kind, without an equal or an equivalent. It may be said that every case, in some way or other, is different from every other case. Nothing presented by the record of the case before us calls for the application of a unique doctrine or requires a decision other than is dictated by the principles set forth in the precedents.

Title VII of the Civil Rights Act of 1964 provides in pertinent part:

“It shall be an unlawful employment practice for an employer — (I) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . ..” 42 U.S.C.A. Sec. 2000e-2(a).

The sex discrimination provisions of Title VII of the Civil Rights Act of 1964 must be construed in harmony with the Equal Pay Act of 1963, 29 U.S.C.A. Sec. 206(d). Hodgson v. Brookhaven General Hospital, 5th Cir. 1970, 436 F.2d 719; Ammons v. ZIA Co., 10th Cir. 1971, 448 F.2d 117; Shultz v. Wheaton Glass Co., 3d Cir., 421 F.2d 259, cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64. The 1964 act provides that any differentiation which is authorized by Section 206(d) of the 1963 act shall not be unlawful under the Civil Rights Act of 1964. The statute provides in part:

“No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . 29 U.S.C.A. Sec. 206(d)(1).

To establish a case under Title YII it must be proved that a wage differential was based upon sex and that there was the performance of equal work for unequal compensation. Ammons v. ZIA Co., supra.

The jobs in question need not be identical, but they must be substantially equal. Brennan v. J. M. Fields, Inc., 5th Cir. 1974, 488 F.2d 443; Hodgson v. Corning Glass Works, 2d Cir. 1973, 474 F.2d 226; Hodgson v. Fairmont Supply Co., 4th Cir. 1972, 454 F.2d 490; Ammons v. ZIA Co., supra. This court has recently said:

“When Congress enacted the Equal Pay Act, it substituted the word ‘equal’ for ‘comparable’ to show that ‘the jobs involved should be virtually identical, that is, they would be very much alike or closely related to each other.’ ” Brennan v. City Stores, Inc., 5th Cir. 1973, 479 F.2d 235.

The record does not support the determination that Mrs. Orr sustained her burden of proving equal work. The District Court stated that “an Insurance Agency operation of this size depends with success upon the efficient functioning of all of its departments.” However true this may be it does not follow that all who participate in the efficient functioning are doing equal work.

The only evidence of sex discrimination is the controverted statement of Frank R. MacNeill that his son would not pay a woman as much as he paid a man. Yet the fact is that at one time Mrs. Orr was paid more than any of the men who were the other department heads. The fact is that she was paid more than the man who succeeded her and who, presumably, was doing work equal to that which she had done. The fact is that she was never paid less and much of the time was paid more than the salary of Vice President Moore who was the head of the Casualty Department. The facts show that the salary differences were based upon other reasons than the conjecture of MacNeill senior that MacNeill junior wouldn’t pay a woman as much as a man. Although various phases of a business organization are essential to its operation, it does not follow that the phases involve equal work such as must be shown in an action based upon sex discrimination. Congress certainly did not intend such a result.

The duties of Mrs. Orr and Messrs. Bruns and Rogan were greatly dissimilar even though each was the manager of a department. This without more precludes the characterization of the performance of their jobs as equal work. Hodgson v. Golden Isles Convalescent Homes, Inc., 5th Cir. 1972, 468 F.2d 1256.

It is clearly apparent from the undisputed evidence, including the testimony of Mrs. Orr, that Messrs. Bruns and Rogan had greater responsibility and were required to exercise greater skill in the performance of their jobs than was Mrs. Orr. Underwriting fire risks and approving claims require the exercise of judgment and developed skill. The independent judgment of Mrs. Orr in purchasing supplies is not comparable to that involved in underwriting risks and settling claims.

The evidence failed to show sex discrimination. Judgment should have been entered for the appellant. The judgment for the appellee is reversed and the cause is remanded for the entry of a judgment for the appellant.

Reversed and remanded.

      . Citing Weeks v. Southern Bell Tel. & Tel. Co., 5th Cir. 1969, 408 F.2d 228.

      . There is a temptation, which will be suppressed, to discuss whether “substantially equal” is equal, whether less than equal is unequal and therefore “less than substantially equal” is also unequal. Such an exercise in syllogistic semantics would serve no useful purpose here.


author: PER CURIAM:

text:
    Jimmy Dale HUTTO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-3215.
    United States Court of Appeals, Fifth Circuit.
    April 11, 1975.
    David H. Berg, Houston, Tex., for petitioner-appellant.
    Anthony J. P. Farris, U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., for respondent-appellee.
    Before WISDOM, BELL and CLARK, Circuit Judges.
   ON PETITION FOR REHEARING

PER CURIAM:

The opinion of this court dated March 7, 1975, 509 F.2d 132, does not expressly or impliedly grant in forma pauperis status to Petitioner-Appellant, nor does it expressly or impliedly interdict the statutory power of the clerk of the district court to require the payment of a filing fee in the civil proceeding which Petitioner-Appellant desires to commence. The cause should have been treated as a civil action initially. It should be so treated now, but no differently from any other civil action. Either the proper fees should be paid or in forma pauperis status must be established according to law.

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.


author: ROSENN, Circuit Judge:

text:
    Tim SAPP, a minor, by his next friend and father, Jack Sapp, for themselves and for all others similarly situated, Plaintiffs-Appellants, v. Dr. Carl G. RENFROE, Individually and in his capacity as Superintendent of the Decatur City Board of Education, et al., etc., Defendants-Appellees.
    No. 74-2418.
    United States Court of Appeals, Fifth Circuit.
    April 11, 1975.

      Elizabeth R. Rindskopf, John R. Myer, Howard Moore, Jr., Atlanta, Ga., for plaintiffs-appellants.
    William E. Zachary, Jr., Decatur, Ga., for defendants-appellees.
    Before THORNBERRY, COLEMAN and ROSENN, Circuit Judges.

       Of the Third Circuit, sitting by designation.

   ROSENN, Circuit Judge:

For at least the last twenty-five years, the Decatur City Board of Education (Board) has required all male students to complete successfully a course of military instruction, known as the Reserve Officers’ Training Corps (ROTC), as a necessary condition for completion of the tenth grade and for graduation from Decatur High School. The State Board of Education, which has established certain minimum requirements for graduation from public high schools in Georgia, does not require ROTC as a course of study. The City Board has added the ROTC requirement because of its belief that the course “serves a valid educational purpose of teaching military science, leadership training, military organization, hygiene, first aid, firearms, safety and marksmanship.” The only male students excused from ROTC are those who are physically disabled or those who previously have participated in the band or chorus and who desire to continue these studies without interruption.

ROTC meets each school day for the tenth grade school year. It is taught by retired commissioned officers of the United States Armed Forces, whose salaries are paid in part by the Board and in part by the Secretary of the Army under the Reserve Officers’ Training Corps Vitalization Act of 1964, 10 U.S.C. § 2031. The outline and substance of material presented in the course is prepared, supervised, and reviewed periodically by the Secretary of the Army or his representative. No significant variation from this material is permitted. All textual material, equipment, and uniforms employed in the course are supplied by the Department of the Army. Students use weapons supplied by the Army in their marksmanship training and must wear uniforms for all classes.

When appellant, Tim Sapp, enrolled in the tenth grade at Decatur High School in August 1972, he already was familiar with the ROTC program and some of its teaching materials, his older brother Kim previously having completed the course. Tim, unlike Kim, adamantly was opposed to receiving military instruction and refused to participate in ROTC from the beginning of the school year. At first, the Board refused Sapp the opportunity to matriculate, but subsequently allowed him to attend classes pending a review of the ROTC requirement. At its September 12, 1972 hearing, the Board refused to amend the requirement and denied Sapp admittance to the Decatur High School.

Sapp instituted an action in the United States District Court for the Northern District of Georgia on September 21, 1972, claiming that his exclusion from school for failure to attend ROTC violated his freedoms of religion and speech. After a hearing the next day, the district court denied Sapp’s motion for a temporary restraining order requiring that he be allowed to attend classes at Decatur High School pending resolution of the dispute. Since Decatur was the only school in the area which Sapp could attend without cost, he was forced to enroll as a tuition-paying student at the Dekalb Area Technical School, from which he graduated on January 23, 1974.

After a nonjury trial, the district court rejected Sapp’s claims, holding that since Sapp’s objections to participation in ROTC were based on personal rather than religious beliefs, his exclusion from school could not violate his freedom of religion. The court did not discuss Sapp’s claim that the ROTC requirement violated his freedom of speech. Since we find Sapp’s demand for compensatory damages, the only demand which has not been rendered moot by his graduation, to be barred by the qualified immunity of the Board, we affirm the judgment of the district court.

Sapp’s complaint in the district court - demanded declaratory, and injunctive relief, attorneys’ fees, and “such other and further relief as is just and proper under the circumstances.” The Board contends that Sapp’s graduation from Dekalb has rendered the controversy and the various demands for relief moot. Sapp concedes the mootness of his demand for injunctive relief, but argues that he is still entitled to declaratory relief, attorneys’ fees, and any damages he may have incurred as a result of his exclusion from Decatur.

We believe Sapp’s demand for declaratory relief is indistinguishable from the demand in Board of School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (Í975), in which students had sued to declare unconstitutional the school board’s regulation of the publication and distribution of a student newspaper. The Court held that the graduation of all the plaintiffs from the school system terminated the existence of a live controversy between the parties, mooting the demand for declaratory relief unless the case was certified as a class action. Here, although Sapp sued as representative of a class, the district court found that no proof of class membership had been offered, and determined that a class action was not maintainable.

Sapp argues that the instant situation falls within the category of cases “presenting an issue ‘capable of repetition, yet evading review,’ ” which are not rendered moot by the termination of the dispute which gave rise to the controversy. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). A comparison of McCorkle with DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), in which the Court refused to find a McCorkle-tjpe situation, illustrates certain of the factors necessary for the existence of the McCorkle exception.

In McCorkle, Super Tire, during a strike by its employees, challenged two New Jersey public welfare programs which provided benefits for striking workers. The Court held that the case was not moot, even though the strike against Super Tire had ended, because the New Jersey programs significantly affected the present interests of the company and its employees in their ongoing collective bargaining relationship, and because the duration of most strikes are not long enough to permit effective appellate review of legal issues raised by the strikes.

DeFunis involved a challenge to a law school’s admission policy by a law student who had been admitted only under court order and who was about to graduate. The Court held that a situation “capable of repetition, yet evading review” was not present because the situation was not capable of repetition as to that particular law student, and because no reason existed to suppose that a subsequent case, presenting the same issues in the context of a live controversy, would not come before the Court for review.

In the instant case, the Board’s ROTC policy does not affect Sapp’s present interests. The issue presented, while capable of repetition, certainly will not recur as to Sapp. Moreover, the length of time necessary for graduation from high school, three or four years, should be more than sufficient for a case to wend its way through the courts, even in this age of congested court calendars. We note that this case reached us in less than two and one-half years, and we have no reason to suspect that the next case presenting these issues will be brought by one who will have graduated in less time. Under these circumstances, the need for a declaratory judgment no longer exists.

Different considerations affect the determination of whether any claim for compensatory damages is moot. Sapp, as a result of his exclusion from the only high school in the area which he could attend without cost, was forced to enroll at Dekalb Area Technical School, and pay tuition at the rate of $22 per course. A claim for damages incurred as a result of tuition expenses is not rendered moot by Sapp’s graduation.

Although any demand by Sapp for compensatory damages is not moot, we believe the awarding of such damages is barred by the qualified immunity which the members of the Board enjoy. In Wood v. Strickland,-U.S. -, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), decided since this case was argued, the Court held that a school administrator or a school board member is immune from liability for compensatory damages in civil rights suits brought under 42 U.S.C. § 1983 unless:

he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the students affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student’s clearly established constitutional rights

- U.S. at-, 95 S.Ct. at 1001. No circumstances exist indicating a “malicious intention” toward Sapp on the part of the Board members. While determining that a constitutional right is “clearly established,” or is. “basic” and “unquestioned,” id., is likely to prove an onerous burden for the Board, see id. at-, 95 S.Ct. 992 (Powell, J., concurring and dissenting), we believe that Sapp’s freedom from attending ROTC was not a clearly established constitutional right.

Sapp refused to attend ROTC because he sincerely held conscientious objections to being taught how to kill. He contended in the district court that these objections were religious in nature, and that the state could not infringe on such beliefs absent a showing of compelling state interest. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).

Sa'pp’s claim that his beliefs were religious for purposes of the first amendment is not altogether clear. Sapp, in his complaint, alleged that his refusal to attend ROTC was based on personal beliefs. The district court found that these beliefs “were personal beliefs merely akin to those of a religious nature.” Such beliefs well may be considered religious under the parallelism test used to define religious belief for the purposes of. the conscientious objector provision of the Selective Service Act.

In Seeger the Court held: The WelshSeeger parallelism test, however, is a matter of statutory construction, and no authoritative cases decided prior to the Board’s actions holding that the test is one of constitutional significance have been brought to our attention. We are aware of dicta in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), that personal beliefs are not to be considered religious for the purposes of the first amendment. Thus, it is not clear that Sapp’s beliefs were, religious for the purposes of the first amendment.

Similarly, Sapp refused to participate in ROTC because he objected to being taught how to kill. The Board has responded by noting that, although students are given marksmanship training, ROTC does not teach anyone to kill and that no student is obligated as part of the course to enlist in the Armed Forces. The Board’s argument cannot be dismissed as totally unfounded. In Hamilton v. Board of Regents, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343 (1934), the Court upheld mandatory ROTC at the University of California against the objections of religiously opposed students. Justice Cardozo, in an opinion joined by Justices Brandéis and Stone, concurred, writing:

Instruction in military science, unaccompanied here by any pledge of military service, is not an interference by the state with the free exercise of religion . . . . For one opposed to force, the affront to conscience must be greater in furnishing men and money wherewith to wage a pending contest than in studying military science without the duty or pledge of service.

Id. at 266-67, 55 S.Ct. at 206. The Board, therefore, constitutionally might not have had to exempt Sapp from the ROTC requirements even if his objections were religiously based.

Sapp also defended his refusal to attend ROTC on the ground that compulsory attendance violated his freedom of expression, relying on Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). In Tinker, the Court held that a school could not prohibit the wearing of black arm bands as an expression of protest against the Vietnam war. Tinker would have to be extended greatly to reach the situation here, since no indication exists that Sapp wished to make any communication by refusing to attend'

ROTC. In Barnette, the Court held that a state could not mandate that school children pledge allegiance to the flag, since the pledge was a forced affirmation of belief. We are not aware of a decision of the Supreme Court or of this circuit interpreting Barnette to mean that a student, as a matter of his freedom of speech, has a constitutional right not to attend a course with which he disagrees.

In noting these difficulties with Sapp’s contentions, we are not to be read as holding that Sapp ultimately would not have been successful had we reached the merits of his claims. Indeed, in the only reported case deciding the issue before us, the Court of Appeals for the Sixth Circuit has held that a school board constitutionally could not require a student objecting on religious grounds to complete successfully a course im military instruction as a condition of graduation. Spence v. Bailey, 465 F.2d 797 (6th Cir. 1972). The very decision in Spence, however, as favorable as it is to Sapp, illustrates by the cogency of the dissent the lack of constitutional certitude in this area. Absent such certitude, Wood dictates that damages may not be imposed on school board members. In the absence of authoritative decisions from the Supreme Court, from this court, or even from other circuits, we hold as a matter of law that the Board did not violate Sapp’s “clearly established constitutional rights.”

We see, therefore, no reason to reach a decision on the merits of Sapp’s claim. Nonetheless, Sapp contends that we should reach such a decision so that the question of attorneys’ fees may be decided. This circuit has recognized various exceptions to the American rule that attorneys’ fees are not awarded as costs of the action. However, attorneys’ fees will not be awarded against a party who has defended successfully. See Bond v. White, 508 F.2d 1397 (5th Cir. 1975); Sierra Club v. Lynn, 502 F.2d 43, 66 (5th Cir. 1974).

The judgment of the district court is affirmed.

      . Dr. Carl G. Renfroe is the Superintendent, and the other appellees are members, of the City Board of Education.

      . In a review of judicial proceedings, an appellate court must affirm a correct judgment of the district court even when that decision is based on an inappropriate ground or a wrong reason. Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937); PAAC v. Rizzo, 502 F.2d 306, 308 n. 1 (3d Cir. 1974).

      . Sapp’s complaint did not contain a demand for money damages, except for such “further relief as is just and proper.” Sapp, however, in response to the Board’s motion to dismiss the appeal, has asserted in this court that he is entitled to such relief. Rule 54(c) of the Federal Rules of Civil Procedure has been construed liberally and under it the demand for relief in the pleadings does not limit, except in cases of default, the relief a court may grant when entering judgment. See Thorington v. Cash, 494 F.2d 582, 586 n. 9 (5th Cir. 1974). A party may be awarded the damages . established by the pleadings or the facts proven at trial even though only injunctive relief was demanded in the complaint, unless such damages are foisted upon the parties by the court, or unless the failure to demand such relief prejudiced the opposing party. Robinson v. Lorillard Corp., 444 F.2d 791, 802-03 (4th Cir. 1971); see J. Moore, Federal Practice ¶ 54.62 (2d ed. 1974).

      . Sapp’s proof of damages distinguishes his demand for monetary relief from the demand in Jacobs, in which plaintiffs were unable to prove any damages at trial. -U.S. at-, 95 S.Ct. 848 n. 1.

      . 50 U.S.C.App. § 4560). See Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).
      In Seeger the Court held:
      A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition [of religious belief],
      380 U.S. at 176, 85 S.Ct. 859, this definition was expanded in Welsh.

      If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual “a place parallel to that filled by . God” in traditionally religious persons.
      398 U.S. at 340, 90 S.Ct. at 1796.

      . We choose this date because the Board is not “charged with predicting the future course of constitutional law.” Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967), quoted in Wood v. Strickland, supra, - U.S. at -, 95 S.Ct. 992.
      Sapp contends that this circuit has applied the parallelism test in a constitutional setting in Theriault v. Carlson, 495 F.2d 390 (5th Cir. 1974). It is unclear that we did so, but in any event we cannot hold the Board accountable for a case decided after its action.

      . We do not mean to imply that the test is not one of constitutional significance. See Welsh v. United States, supra, 398 U.S. at 344, 90 S.Ct. 1792 (Harlan, J., concurring). We simply mean that the constitutional significance of the test has not been determined authoritatively.

      . The Court stated:
      A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a “religious” belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority,, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claim would not rest on a religious basis. Thoreau’s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clause.
      Wisconsin v. Yoder, supra, 406 U.S. at 215-16, 92 S.Ct. at 1533.

      . This analysis assumes that the Board, in refusing to except Sapp from the ROTC requirement, knew the nature of Sapp’s belief.
      An examination of the record leaves us unclear as to whether any members of the Board inquired into the nature of Sapp’s beliefs. Dr. Renfroe testified that a member of the Board twice asked Sapp whether “this was a matter of religious conscientious objection,” and that Sapp responded negatively to the second question. Both Sapp and his father denied that such questioning occurred. In any event, the nature of Sapp’s belief was made clear in the complaint and at the hearing on the motion for a temporary restraining order, of which, we may assume, the Board was kept informed. The filing of the complaint and the hearing occurred after the Board meeting, but prior to Sapp’s enrollment at Dekalb. Since we are concerned only with Sapp’s demand for damages, which were incurred as a result of the enrollment, the date of enrollment is the significant date in determining the Board’s knowledge of the nature of Sapp’s beliefs.

      . Cardozo’s concurring opinion may be better law today than the majority’s. See Tinker v. Des Moines Independent Community School Dist., 393. U.S. 503, 506 n. 2, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).


author: GROOMS, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William T. MANDERSON, Defendant-Appellant.
    No. 74-3452.
    United States Court of Appeals, Fifth Circuit.
    April 11, 1975.
    Floyd M. Buford, Macon, Ga., for defendant-appellant.
    Ronald R. Knight, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
    Before GOLDBERG and RONEY, Circuit Judges, and GROOMS, District Judge.
   GROOMS, District Judge:

Appellant, William T. Manderson, was Vice-president of The Georgia Company, a branch of The Columbus Bank and Trust Company, limited in its functions to mortgage banking.

Appellant was charged in a two count indictment with making or causing to be made a false entry in the form of a check entered into a checkbook of The Georgia Company in violation of 18 U. S.C. § 1005, and with the misapplication of Eight Hundred Dollars which had been entrusted to the custody and care of The Georgia Company in violation of 18 U.S.C. § 656. A jury found appellant guilty of making a false entry but acquitted him of the misapplication of funds. He was sentenced to one year’s unsupervised probation.

Appellant’s motions to dismiss the false entry count and for an acquittal thereon were overruled. He appeals. We reverse with directions.

The pertinent facts presented by the record are as follows: Carl L. Horton’s house was extensively damaged by fire on December 13, 1973. The Federal National Mortgage Association held a mortgage upon the house. The mortgage was being serviced by The Georgia Company. Appellant handled the claim for the loss with an insurance adjuster, who obtained a repair estimate of $9,050.39 and recommended that the insurer pay $8,499.96 in settlement of the claim. The settlement proposed was accepted and a check was issued to Horton covering the settlement.

Horton becoming aware of the fact' that his insurance did not include coverage on his furniture and that the cost of the repairs would be more than the proceeds of the insurance asked appellant if a friend of his, James N. Reese, a contractor, could do the work as Reese might be able to save him some money. The contract for repairs was let to Reese. When work began Horton deposited the insurance check in an escrow account of The Georgia Company in The Columbus Bank and Trust Company, awaiting the completion of the repairs.

Appellant kept close check on the repairs that were being made and kept notes on the savings being made on the job. Ultimately Reese was able to save $2,176.00 for Horton. On March 15, 1974, Reese went to The Georgia Company to turn in the keys to the house to appellant. According to Reese, Manderson, at that time, produced a detailed list of what he believed to be savings made by Reese and demanded $1,000.00. Before attempting to comply with the demand, Reese notified The Columbus Bank, which requested assistance from the Federal Bureau of Investigation. The Bank supplied Reese through an F.B.I. agent with $1,000.00 in marked bills. When Reese went to pick up the check he had further negotiations with appellant, who accepted $800.00, which was later recovered.

Appellant’s version of the facts differed markedly from that of Reese. He testified that Reese told him that he had made money on the job and appreciated appellant’s help; that Reese was hopeful of obtaining more insurance repair work, which appellant controlled, and that he would like to give appellant $800.00 to spend on his vacation.

Appellant delivered to Reese a check of The Georgia Company dated March 19, 1974, drawn on the escrow account by James W. Cloud and William T. Manderson in the exact amount of the escrow deposit of $8,499.96 payable to Reese Construction Company and Carl L. Horton. The checkbook stub correctly reflected the date, the payees, for what the check was issued, its application to the escrow account, the account number, and the amount. There was no false entry unless it can be said that appellant’s attempt to enrich himself at the expense of Reese and Horton rendered it such. There was no attempt to defraud The Georgia Company or the Bank and neither was defrauded. Appellant correctly reflected the transaction in the books of the Bank.

The aim of the false entry statute “was to give assurance that upon an inspection of a bank, public officers and others would discover in its books of account a picture of its true condition.” United States v. Darby, 289 U.S. 224, 226, 53 S.Ct. 573, 574, 77 L.Ed. 1137; United States v. Corbett, 215 U.S. 233, 241, 242, 30 S.Ct. 81, 54 L.Ed. 173.

Appellant relies upon Coffin v. United States, 156 U.S. 432, 462, 15 S.Ct. 394, 39 L.Ed. 481 (later opinion 162 U.S. 664, 16 S.Ct. 943, 40 L.Ed. 1109); Laws v. United States, 10 Cir., 66 F.2d 870; Twining v. United States, 3 Cir., 141 F. 41; and United States v. Young, (M.D.Ala.), 128 F. Ill, while appellee asserts that its position is sustained by Agnew v. United States, 165 U.S. 36, 52-53, 17 S.Ct. 235, 41 L.Ed. 624; United States v. Darby, 289 U.S. 224, 53 S.Ct. 573, 77 L.Ed. 1137; Morse v. United States, 2 Cir., 174 F. 539, cert. den. 215 U.S. 605, 30 S.Ct. 406, 54 L.Ed. 346; and Billingsley v. United States, 8 Cir., 178 F. 653.

In Coffin the Court stated: “We think that it is clear that the making of a false entry is a concrete offense which is not committed where the transaction entered actually took place, and is entered exactly as it occurred.” Of like tenor are Laws, Twining and Young, where Coffin is cited as sustaining those decisions.

The decision in Agnew was grounded upon an entry of $3400 made to the officer’s credit on the books of the bank by means of a false deposit slip. In Darby the entries related to discounted promissory notes bearing a known forged signature of a co-maker or endorser. In Morse the entries in the books of the bank showed loans to individuals on the security of stock deposited as collateral when in fact the transactions were illegal purchases of stock by the bank in the name of irresponsible clerks who knew nothing of the merits of the transactions. In Billingsley the Comptroller had disapproved a note of an officer of the bank as an asset. There was a sham sale to another bank and a false entry made of the receipt of funds. In a second transaction to cover an overdraft of the same officer, the defendant and the officer caused an unauthorized note to be executed by a corporation of which they were officers. The defendant pretended to discount the note and to place the proceeds to the credit of the officer. The facts recited clearly distinguish those cases from the facts presented in this case.

The entry made on the books of The Georgia Company was in no respect lacking in verity. It was the very entry that should have been made had there been no later effort to extort. The sum for which the check was drawn was rightfully due Reese and Horton and it was appellant’s duty to draw it and enter it precisely as it was drawn and entered. Although the presence of the funds in the possession of Reese and Horton motivated the scheme to exact money from them, the entry, correctly made, did not conceal anything from them or The Georgia Company. The entry did not represent what was not true or did not exist. It cannot be a false entry to make an entry on the books of the bank which correctly reflects the transaction and was so intended. That part of § 1005 which creates the offense of making “any false entry” a crime was not designed to cover other criminal breaches of duty, Young, supra, and this Court declines to so rule.

This cause is reversed and remanded with direction to dismiss the indictment and to discharge appellant.

Reversed and remanded.

      . The deposits of the Columbus Bank and Trust Company were insured by the Federal Deposit Insurance Corporation.

      . “Whoever makes any false entry in any book, report, or statement of such bank with intent to injure or defraud such bank, or any other company, body politic or corporate, or any individual person, or to deceive any officer of such bank, or the Comptroller of the Currency, or the Federal Deposit Insurance Corporation, or any agent or examiner appointed to examine the affairs of such bank, or the Board of Governors of the Federal Reserve System— “Shall be fined not more than $5,000 or imprisoned not more than five years, or both.”

      . In Darby the court noted that Coffin was to be read in the light of a later opinion in the same case (162 U.S. 664, 16 S.Ct. 943, 40 L.Ed. 1109) and of the still later opinion in Agnew saying “whether the conclusion would be the same if the signature had been genuine, but the signer had been known to be insolvent, or a man of straw . . . there is no occasion to determine.”


author: AINSWORTH, Circuit Judge:

text:
    James E. BREWER, Plaintiff-Appellant, v. E. J. PLATT FISHERIES, INC., Defendant-Appellee.
    No. 74-2055.
    United States Court of Appeals, Fifth Circuit.
    April 11, 1975.
    Rehearing Denied May 13, 1975.
    J. Mack Varner, Vicksburg, Miss., for plaintiff-appellant.
    William G. Beanland, Vicksburg, Miss., for defendant-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   AINSWORTH, Circuit Judge:

This is an action for damages for maritime personal injury. On May 17, 1971, the motor vessel LOGAN P, a 38-foot-long, 14V2-foot-wide motor vessel with a draft of 4 feet at full speed, owned by E. J. Platt Fisheries, Inc. [Contractor] and chartered by the United States Corps of Engineers, struck a submerged sandbar in the Mississippi River. As a result of the collision James E. Brewer, a member of a survey team of the Corps of Engineers, was thrown from a chair in which he was seated causing him to sustain serious personal injuries. Plaintiff filed this suit in maritime tort against the Contractor, alleging negligence of its employee Cecil Leon Parker, the operator of the vessel. The district judge, sitting without a jury, found for defendant and plaintiff appealed.

There are two issues to decide: (1) Was the trial judge clearly erroneous in finding no actionable negligence on the part of the boat operator? (2) Did the trial judge misinterpret the contract between the Government and Contractor in concluding that under its terms the defendant assumed no responsibility of liability to a Government employee aboard the vessel? We answer both questions in the affirmative and reverse.

There were six people aboard the LOGAN P on the day of the accident. James E. Brewer, plaintiff, Parker Boggan and Perry Young, employees of the Corps of Engineers, along with David Cobiapchi and Hugh McClendon, employees of Odom’s Offshore Survey, Inc., constituted the survey team whose mission was to conduct hydrographic surveys of the bed of the Mississippi River. Cecil Leon Parker, an employee of defendant Contractor, was the operator of the boat.

On the morning in question the survey party chief, Perry Young, directed Parker to put the boat on a speed run as it left its mooring at Point Pleasant, Louisiana. The decision of which course to take was left to Parker. There was no traffic on the river and visibility was good as the LOGAN P ascended the east side of the navigation channel of the river at full throttle (about 17 to 19 miles per hour) proceeding toward its destination approximately 6 miles upstream. A few miles up the river from Point Pleasant, in the vicinity of Davis Island Bend, there is a large sandbar. Fingers or crests of sand running from it build up quickly in this area because of the current, creating constant changes in the river bed and a hazard to navigation. The United States Coast Guard has marked the east ascending side of the channel with red buoys to warn navigators of these hazards lying outside the buoy line between it and the east bank. Parker was aware of the red buoys and of their significance. When the vessel approached this stretch of the river it suddenly came to an abrupt halt as it collided with a part of the submerged sandbar, causing Brewer to be thrown violently from his chair 6 to 8 feet against a life jacket box. Parker immediately pulled the throttles back and the boat drifted several hundred feet downstream. After checking the engine and ascertaining that it had not been damaged, Parker steered the vessel back to the area in which he thought the accident had occurred in an unsuccessful attempt to locate two batteries which had fallen into the river with the impact.

All of the men aboard the LOGAN P at the time of the accident testified. Brewer and Boggan testified that just prior to the impact the vessel had left the channel and moved upstream to the east. McClendon and Boggan testified that when they returned to the site at which the impact was thought to have occurred the vessel was outside the channel. With the exception of Parker, the operator, all of the men aboard testified that as the boat drifted downstream after the collision it was outside of the channel to the east. Parker did not know whether the vessel was in the channel or not when it hit the sandbar.

The district judge in his findings estimated that the boat at the time of collision was operating at a distance of 75 to 100 feet outside the channel on the Mississippi (or east) side of the river, with full throttle, in approximately 5 to 6 feet of water. He also found that the object which the boat struck was a piece of firm land extending as a finger from the island. Despite these findings, which are substantiated by the record, the district judge concluded that the evidence failed to show with any degree of clarity or conviction that the operator of the boat was guilty of negligence which proximately caused the accident.

[13 The standard of care in maritime cases is one of reasonableness. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959), in which the Supreme Court said:

It is a settled principle of maritime law that a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.

358 U.S. at 630, 79 S.Ct. at 409, and further emphasized this principle by reiterating:

[T]he owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.

358 U.S. at 632, 79 S.Ct. at 410.

Under the particular circumstances presented here, considering all of the evidence, particularly the speed of the vessel and the course pursued by its operator with full knowledge of the hazards created by shifting sand formations in the area and in apparent disregard of the warnings of the Coast Guard, we are left with a definite and firm conviction that the district court was clearly erroneous in failing to find that the boat operator was derelict in his duty to exercise reasonable care and that his negligence was the proximate cause of the accident. See McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774.

The only remaining issue is whether the contract between the Government and defendant immunized the defendant from liability. The district court found that the Contractor’s responsibility in case of an accident is fixed by Article 5 of the contract, but interpreted the clause in favor of defendant. We pretermit the question of whether an agreement, which would have the effect of exempting the boat owner from liability caused by the negligence of its employee, would be repugnant to public policy, inasmuch as this is not such an agreement. Article 5 reads in pertinent part:

Contractor’s responsibility. The Contractor shall be responsible that his employees strictly comply with all Federal, State, and municipal laws that may apply to operations under the contract; and it is understood and agreed that the Contractor assumes full responsibility for the safety of his employees, plant, and materials and for any damage or injury done by or to them from any source or cause, except damage caused to plant or equipment by acts of the Government, its officers, agents or employees, in which event such damages will be the responsibility of the Government in accordance with applicable federal laws. . (Emphasis supplied.)

The district judge held, in interpreting Article 5 that, “Under this contract if there had been any actionable negligence on the part of this operator, and if an employee of the defendant'had sustained an injury, then the injured party would have incurred a loss which the defendant would have possible liable under the terms of its contract, [sic]” (Emphasis supplied.) It is obvious from a reading of that holding in conjunction with Article 5 that the district judge inadvertently disregarded the word “by” in the phrase “for any damage or injury done by or to them from any source or cause.” We find no ambiguity in Article 5; it explicitly fixes defendant’s responsibility for injuries done by its employees to others as well as to its own employees.

We conclude, therefore, that the district judge clearly erred in finding that Parker was not guilty of negligence and that defendant was not liable under the contract for the damages sustained by plaintiff because of that negligence.

Reversed and remanded.

      . There is a conflict in the evidence in regard to the depth of the water where the probing for the lost batteries took place. The testimony of those witnesses who approximated the depth was that the water was from 5 to 6 feet deep. The district judge accepted these estimates. Appellant attempts to show from the hydrographic survey that there was at least 15 feet of water at the site. We find this variance immaterial for two reasons. No one knew whether the boat after drifting downstream returned to the precise point of the impact; on the other hand, the evidence overwhelmingly shows that regardless of the depth of the water at the site, the boat was outside of the channel prior to the impact, while drifting downstream after the impact and at the time that the men were attempting to retrieve the batteries.

      . See also Branch v. Schumann, 5 Cir., 1971, 445 F.2d 175, 178.

      . Defendant contends that according to a judicially recognized custom an ascending vessel “runs the points” avoiding the current as far as possible, and a descending vessel “runs the bends,” citing John D. Rockefeller, 4 Cir., 1921, 272 F. 67, and Bisso Towboat Co. v. United States, 5 Cir., 1925, 6 F.2d 132, and that the boat operator was running the points at the time of the accident. The record, however, is devoid of any testimony by Parker that he was aware of such a custom; he was not questioned in this regard. Moreover, there was no impending danger of collision with another vessel to cause Parker to deviate from the safer channel course to a hazardous course clearly marked by channel buoys. The defense suggests that the trial court discredited the testimony of the five witnesses who placed the position of the vessel outside of the channel. The finding of the trial court belies such an assumption. It specifically found the boat to be 75 to 100 feet east of the channel.

      . Counsel for defendant conceded in oral argument that if defendant Platt was negligent it is responsible in damages to whomever it injures as a result of that negligence.