author: BARNES, Circuit Judge:

text:
    NATIONAL EQUIPMENT LEASING CORPORATION, Appellant, v. H. M. FARRIER, Trustee for Traders Compress Company, Inc. and its wholly-owned subsidiary, Pioneer Products, Inc., Appellee.
    No. 73-1187.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Aug. 15, 1973.
    Decided Sept. 25, 1973.
    As Amended on Denial of Rehearing Nov. 28, 1973.
    John A. Gilliam, Dallas, Tex. (Reynolds & Ridings, Oklahoma City, Okl., and Thompson, Knight, Simmons & Bullion, Dallas, Tex. on the brief), for appellant.
    Robin P. Hartmann, Dallas, Tex. (Louis J. Weber, Jr., Dallas, Tex., and John R. Couch, Oklahoma City, Okl., on the brief), for appellee.
    Before HILL, BARNES and SETH, Circuit Judges.

       Honorable Stanley N. Barnes, Senior Judge of the Ninth Circuit, sitting by designation.

   BARNES, Circuit Judge:

This appeal arises from the decision and partial summary judgment of the United States District Court for the Western District of Oklahoma, upon a claim for damages under an equipment leasing agreement. Defendant-appel-lee, H. M. Farrier, is trustee in bankruptcy for Traders Compress Company, Inc. (herein Traders), and its wholly-owned subsidiary, Pioneer Products, Inc.

Plaintiff-appellant, National Equipment Leasing Corporation (herein National), is a Delaware Corporation with its principal place of business in Pittsburgh, Pennsylvania. On April 28, 1969, National entered into an Equipment Lease Agreement with North America Corporation (herein “old” North America); a Texas corporation with its principal place of business in Dallas, Texas. Prior to the execution of the lease agreement, “old” North America entered into an agreement and plan of merger with Traders. On June 16, 1969, subsequent to the lease agreement, Traders acquired all of the assets and assumed all the liabilities of “old” North America, and “old” North America was dissolved. On July 1, 1969, Argosy Corporation, a wholly-owned subsidiary of Traders, effected a change of name to North America Corporation. Thereafter, all leasing arrangements and business between National and the Traders’ companies was conducted through the officers of “new” North America Corporation.

On February 1, 1970, all obligations pursuant to the lease agreement came into default. On April 12, 1971, National instituted an action for damages pursuant to a liquidated damages clause in the lease agreement against Traders in the 193rd Judicial District Court of Dallas County, Texas. Prior to the disposition of this action, an involuntary petition under Chapter X of the Bankruptcy Act was filed against Traders in the United States district court. National filed its claim in the district court for $1,266,582.35 against Traders; the claim not disposed of in the state court action. The district court ruled that those lease obligations assumed by “old” North America were recoverable from Traders; but those obligations assumed by the “new” North America were not. Ten of the twelve lease arrangements made pursuant to the lease agreement were made with “new” North America. Our jurisdiction rests in 28 U.S.C. § 1291.

The Equipment Lease Agreement is at the center of this dispute. It is Schedule I to Exhibit A attached to the claim filed in bankruptcy. By the terms of the agreement, National agreed to lease, and North America agreed to hire “units” of farm sprinkler equipment to be sub-let through North America to individual farmers. North America did not personally use the equipment. The arrangement is best described by appel-lee:

“North America Corporation would seek farmers to whom they could lease farm equipment and machinery. After locating prospects, North America Corporation would refer a file concerning each prospect to National for credit' check and approval. Upon approval by National, North America would execute a sublease agreement between itself and the farmer and would at that time attach an additional schedule to the Equipment Lease Agreement. That schedule would describe the farmer and establish the relationship between National and North America as principal lessor and lessee of that equipment.” (Appellee’s Brief at 4.)

The first two obligations for which the district court held Traders liable (Schedules NA-1 and NA-2), were executed by “old” North America through its President, Robert Poston. Schedules NA-3 through and including NA-12 were executed by “new” North America through its President, E. T. Beynon. The lease agreement provided that the schedules made pursuant to the agreement would “ . . .be attached hereto and to become a part hereof as same are executed from time to time by the parties hereto.” (Vol. II, Record, Schedule 1, Par. 1.) The district court held:

“That only schedules which were executed by the same parties as those who had executed the master lease agreement could, under the terms of the master lease agreement, constitute valid schedules to be attached and incorporated into the master lease agreement.” (Findings of Fact and Conclusions of Law, at 2, Par. 6, Vol. 1, Record, at 77.)

Since Beynon and “new” North America were not of the original parties to the agreement, the court reasoned that Traders, as the parent of “new” North America, could not be obligated-on the schedules executed after the dissolution of “old” North America.

Traders admits that it:

“ . . . did assume the base lease agreement by merger, became a party to the agreement, and likewise became a party to and obligor under the base agreement, including all schedules ‘executed from time to time by the parties hereto.’ It is undisputed that ‘the parties hereto’ as identified in the base lease agreement —which National rightly insists must govern all subsequent undertakings pursuant to it — are National and old North America Corporation. Upon merger, those parties hereto became National and Traders, and Traders became liable for any schedules executed by National and Traders pursuant to the base lease agreement.” (Appel-lee’s Brief at 5.)

However, Traders argues, neither Traders nor “old” North America executed Schedules NA-3 through NA-12; only “new” North America was a party with National to those schedules, and Traders cannot be liable for its subsidiary’s obligations in the absence of a showing of fraud or instrumentality relationship. This argument rests upon a finding that each schedule constituted a separate contract apart from the original lease agreement of April 28, 1969.

National argues that each schedule was a part of the original lease agreement: “adjuncts or exhibits to the main instrument.” (Appellant’s Brief at 13.) Traders has admitted that it became a party to the original base agreement through its acquisition of “old” North America. In this context, National argues Traders delegated the performance of its obligation under the original agreement to “new” North America; and that in the absence of a novation of the original agreement, Traders’ obligation to National was not discharged. National correctly notes that, as a minimum requirement, novation must be preceded by mutual agreement by the original and substituted parties. There is no proof, nor is it argued by Traders, that an agreement for a novation occurred.

From these opposing arguments and the decision of the district court, we must decide, as a matter of law, the effect of the foregoing events. The broad question is whether Traders was liable for Schedules NA-3 through and including NA-12. The narrow question is whether the schedules constituted separate contracts between National and “new” North America, or whether they were amendments to the original agreement upon which Traders is admittedly liable.

Each schedule, Schedules NA-1 through NA-12, were two pages in length; the first page describing the property leased, and the second primarily assigning all rental payments due North America to National. Each was stated to be “subject to the terms and conditions of the lease agreement and appendices.” In addition, said schedules contained a clause (similar to that found in Schedule NA-12), that the schedule was “to be attached to and become part of Lease Agreement dated April 28, 1969.” (Schedules at 2, Par. 1.)

Traders predicates its claim that it was not a party to Schedules NA-3 through NA-12 (that is, that such schedules were separate contracts), on the fact that they were executed by E. T. Beynon, President of “new” North America; and that Traders never gave its consent to “new” North America to enter into new contracts, nor to bind Traders under the original agreement to which “new” North America was not a party. We find it unnecessary to consider whether Traders gave “new” North America authority to execute the schedules, because we hold that the schedules were part of the original agreement to which Traders was obligated. Although Traders has argued that the schedules constituted separate contracts Traders has not established that they were separate.

The following considerations are in our opinion determinative:

1.) Each Schedule looked to the original agreement and each stated it was “to become” a part of the original agreement. The original agreement provided that it would “be construed in accordance with the laws of the State of Pennsylvania.” (Section XIII of the Equipment Lease Agreement (Vol. II, Record, Schedule l.)).

In Neville v. Scott, 182 Pa.Super. 448, 127 A.2d 755 (1956), the Supreme Court of Pennsylvaina stated that where contractual instruments, by their terms, are mutually inclusive such that one instrument has no meaning without the other, the instruments “will be read together, and each will be construed with reference to the other.” Neville v. Scott, supra, 127 A.2d at 757.

“ T.f contracting parties choose, they may express their agreement in one or more writings and, in such circumstances, the several documents are to be interpreted together, each one contributing (to the extent of its worth) to the ascertainment of the true intent of the parties.’ ” Id., quoting from International Milling Co. v. Hachmeis-ter, Inc., 380 Pa. 407, 110 A.2d 186, 191 (1955).

In the matter before us, the original agreement defined the parties’ obligations with respect to future lease transactions. No obligations under the original agreement were to be created until such time as the parties executed schedules in compliance with the original agreement. Accordingly, the schedules did not define the parties’ rights and obligations ; rather, they defined the terms of individual transactions made in comformity with the original agreement. There is no proof the schedules purported to define or create rights and obligations other than those contained on the original contract.

2. ) “New” North America, in dealing with National, assumed that it was operating pursuant to the original agreement as though it were a party to that agreement. No effort was made on the part of “new” North America to suggest that it was not a party to the original contract. It asserted in fact, that it signed the schedule “as a party to” the original Lease Agreement.

3. ) National assumed that the schedules were a part of the original contract, and that it was dealing with the original contracting party. National alleges that it did not learn that “old” North America had been dissolved until March 25, 1970 — almost two months after the obligations had come into default. Traders disputes this, but fails to offer any countervailing proof. Instead, Traders merely suggests that the date of National’s first knowledge of the dissolution of “old” North America is immaterial.

Page 2 of each schedule contains an assignment of rentals from “new” North America to National. As an example, all schedules, like Schedule NA-12 recites:

“KNOW ALL MEN BY THESE PRESENTS THAT NORTH AMERICA CORPORATION, A TEXAS CORPORATION, HAS EXECUTED THIS DATE SCHEDULE NA-12 TO BE ATTACHED TO AND BECOME PART OF LEASE AGREEMENT DATED APRIL 28, 1969.” (emphasis added).

This obviously is not the language of a contract separate from, and different than, the April 28, 1969 contract. It demonstrates an intent of “new” North America to be bound by and become a party to the terms of the original April 28, 1969 Agreement between old North America and National. In turn, Traders intent to be bound under the schedule is evidenced by, and unaffected by, Traders’ unilateral delegations of its obligations to perform to new North America.

In finding that the schedules and the original agreement constitute a single integrated contract, together with Traders’ admission that it is liable under the original agreement, it follows that Traders is obligated under each of the schedules. This is the only reasonable interpretation of the facts. Through the merger of “old” North America into Traders, Traders became obligated upon the original agreement. Traders thereby attempted to discharge its obligations by delegating its duties to its wholly-owned subsidiary, Argosy Corporation. To facilitate this, it changed Argosy’s corporate name to North America. By virtue of this delegation of performance (and notwithstanding considerations of limited liability based on separate corporate entity), Traders remained obligated for performance of all duties bargained for under the lease agreement. Further, this conclusion is inescapable in view of a lack of either consent or contractual authority given by National to Traders to delegate duties. National’s consent was never sought, nor was it granted to delegate its obligations. The contract prohibits assignment in the absence of written consent. (Equipment Lease Agreement, Section V(a) at 7). In considering a similar situation, the Pennsylvania Supreme Court established the following general rule:

“While a party to a contract may assign his rights and benefits thereunder, he may not, unless the contract so provides, assign his liability under the contract to perform duties involving his personal ability, integrity, credit or responsibility.” Saxe v. Feinstein, 365 Pa. 473, 77 A.2d 419, 421 (1951).

For these above stated reasons, the decision of the district court, to the extent that it found Traders not liable for all schedules made pursuant to the Equipment Lease Agreement of April 28, 1969, is reversed. The district court’s Order and Partial Summary Judgment of January 23, 1973, is vacated, and the case remanded with instructions to proceed to a full trial of the matter before it.

      . CHRONOLOGY:
      1) December 5, 1968 — Agreement and plan of merger made between “old” North America Corporation and Traders Compress Company, Inc.
      2) April 28, 1969 — Equipment Lease Agreement executed between “old” North America and National Equipment Leasing Corporation.
      3) April 30, 1969 — Schedules NA-1 and NA-2 executed by Robert Poston, President of “old” North America and National.
      4) June 16, 1969 — Merger between “old” North America and Traders, and Traders assumed all obligation to National.
      5) July 1, 1969 — Argosy Corporation effected a change of name to North America Corporation (“new” North America).
      6) February 1, 1970 — Obligations pursuant to all schedules came into default.
      7) March 25, 1970 — National allegedly first learned that “old” North America had been dissolved. Traders disputes this.
      8) April 12, 1971 — National instituted an action for damages pursuant to a liquidated damages clause in the Lease Agreement against Traders in 193rd Judicial District Court of Dallas County, Texas. (State Court).
      9) May 12, 1972 — Involuntary petition under Chapter X of the Bankruptcy Act filed against Traders in United States District Court (prior to disposition of the state court action.) National filed claim in amount of $1,266,582.35.
      10) January 23, 1973 — Judgment entered for National and against. Traders, in the United States District Court, allowing National recovery under Schedules NA-1 and NA-2 in sum of $34,946.83 and denying recovery in Schedules NA-3 through NA-12.

      . Appellee does not dispute the application of Pennsylvania law, and there is authority for its use. M. S. Bremen, et al. v. Zapata OffShore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L. Ed.2d 513 (1972), where the Supreme Court approved the validity of a forum-selection clause.


source: Caselaw Access Project

author: FEINBERG, Circuit Judge; FRIENDLY, Circuit Judge

license: Public Domain

text:
    UNITED STATES ex rel. Alton CANNON, Appellant, v. Ernest L. MONTANYE, Superintendent, Attica Correctional Facility, Appellee.
    Nos. 122, 123, Docket 73-1605, 73-1606.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 14, 1973.
    Decided Oct. 19, 1973.

      Frederick A. Provorny, New York City, for appellant.
    Burton Herman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N.Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellee.
    Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.
   FEINBERG, Circuit Judge;

In January 1969, after a jury trial in Monroe County Court, Rochester, New York, Alton Cannon was convicted of the first degree rape of Shirley Rippel. He was given an indeterminate sentence of six years and eight months to 20 years in prison. On appeal, the case was remanded by the Appellate Division to the trial court for further proceedings to determine if appellant had waived his right to counsel at a lineup. People v. Cannon, 33 A.D.2d 641, 305 N.Y.S.2d 106 (4th Dep’t 1969). Waiver having been found, the Appellate Division affirmed the conviction without opinion, People v. Cannon, 33 A.D.2d 1104, 309 N.Y.S.2d 894 (4th Dep’t 1970), and the New York Court of Appeals denied review.

Subsequently, appellant twice petitioned the United States District Court for the Western District of New York for a writ of habeas corpus. He now appeals from orders of Chief Judge John O. Henderson and Judge Harold P. Burke denying the applications without a hearing. For reasons stated below, we remand to the district court for further proceedings in accordance with this opinion.

I

Appellant first contends that the state court erroneously permitted the prosecution to refer to a suppressed typewritten confession and indirectly reveal its contents. The issue arose in the following context: Five days after the rape of Mrs. Rippel, the police picked up appellant for questioning. At a Huntley hearing shortly before trial, Detective Mahoney testified as follows: From 8:30 to 8:45 A.M., Cannon made oral admissions concerning both the Rippel incident and unrelated attacks on Marilyn Stevens and Rose Sprague. At 8:45 A. M., the police took a question and answer statement transcribed by a stenographer, which we will call the stenographic statement, relating to the Stevens case. At 9:15 A.M., a typewritten statement was prepared concerning the Sprague complaint, and signed by Cannon. Between 9:40 and 10:00 A.M., a typewritten statement was made dealing with the rape of Shirley Rippel, and was signed.

Because the stenographic statement showed that Cannon twice requested a lawyer before making it, the trial judge suppressed that statement and the later two signed statements as well. However, the judge refused to bar evidence of Cannon’s earlier oral admissions made before any request for counsel. The “cut-off” point was 8:45 A.M., the time when the stenographic statement was started.

At the trial, Detective Funk, who had not been called at the Huntley hearing, corroborated Detective Mahoney. (The latter also testified, in substance repeating his earlier account given at the Huntley proceeding.) On cross-examination, appellant’s counsel sought to impeach Detective Funk by reading from his testimony at a preliminary hearing where he had stated that Cannon was first questioned on the Rippel case at 9:30 A.M., 45 minutes after the crucial cut-off time. Detective Funk affirmed the accuracy of the preliminary hearing version and said: “That was the first statement we took in regards to this [Rippel] incident.” On redirect, the officer testified that the word “statement” referred to a signed typewritten statement and that an oral statement had been obtained at 8:30 A.M. The prosecutor then showed the signed statement to Detective Funk. After various remarks identifying it (to which appellant’s counsel took a continuing objection) , the following colloquy ensued:

Q. And in sum or substance does that document relate what the defendant previously told you orally ?

A. [Detective Funk] Yes sir, it is.

Appellant’s primary argument is directed to this exchange. According to him, even if reference to the suppressed typewritten statement can be justified as an attempt to rehabilitate Detective Funk (a point he does not concede), the “sum or substance” comment clearly exceeded this purpose and permitted the jury to consider the statement’s contents in violation of due process. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Furthermore, appellant contends, the judge enhanced the prejudicial effect by allowing the jury to hear the detectives’ testimony again and by refusing to charge that the jurors should ignore the typewritten statement and anything connected with it.

The judge, however, did give a limiting instruction. A few hours after the jurors retired, they returned and asked the court whether they could consider the typewritten statement as evidence. The judge responded as follows:

Reference was made to [the statement] on one or more occasions, that one was typed, where it was typed and some of the circumstances concerning it.
Now these references are testimony and may be considered by you. However, the statement itself was never introduced into evidence, and therefore you may not consider it as evidence.

The jury again retired and several hours afterward returned a verdict of guilty.

Appellant argues that the sequence of events recited above resulted in reversible constitutional error. However we might feel if these were the only relevant facts before us, another portion of the trial record is crucially important. Appellant took the stand in his own defense and denied that he had ever attacked, or even seen, Mrs. Rippel or that he had orally admitted committing the rape. In cross-examination, the prosecution tried to use the suppressed statement to impeach defendant’s credibility, but the trial judge barred this tactic. The trial antedated the decision of the Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), which held that a Miranda-violative statement could be used to impeach the accused’s credibility, so long as it had not been coerced and a limiting instruction was given. See also Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (impeachment on collateral matter).

With the 20-20 hindsight afforded by Harris, we now know that the prosecutor, with the requisite foundation, could properly have utilized the typewritten statement under an instruction that the jury could consider it on credibility alone. Cf. United States v. Briggs, 457 F.2d 908 (2d Cir.1972), cert, denied, 409 U.S. 986, 93 S.Ct. 337, 34 L.Ed.2d 251 (1973). Here the prosecutor’s, witness testified only obliquely to the contents of the writing by stating that in “sum or substance” the typed statement incorporated the earlier oral admissions. Furthermore, the judge charged the jury, in effect, that it could not consider the statement itself as evidence on any issue. Cf. United States v. Kahan, 479 F.2d 290 (2d Cir. 1973) (no limiting instruction). Although the prosecutor should not, in his case in chief, have placed before the jury even indirectly the substance of the statement, the mistake would have had no independent significance had the trial judge allowed the prosecutor proper latitude in cross-examination. Nonetheless, appellant urges this court to reject the implications of Harris because of the chance that “appellant would not have taken the stand if the existence and contents of the typewritten statement had not been revealed to the jury. . . .” The present circumstances, however, render this possibility very remote. Given the verbal admissions, which were properly before the jury, and the lack of direct reference to the matter in the People’s closing argument, the “sum or substance” remark could have added only marginal strength to the prosecution’s ease. We are persuaded beyond a reasonable doubt that this evidence was not a substantial factor in inducing appellant to testify, and that therefore its admission did not prejudice Cannon by unreasonably burdening his right to remain silent. Cf. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

In addition, it is worth noting that the jurors showed every indication of being thoughtful and receptive to the court’s guidance. No less than four times, the jurors returned to the courtroom to seek further enlightenment. On one of these occasions, as indicated, they asked for instructions regarding the appropriate use of the very statement in issue. Therefore, one may realistically assume that the jury obeyed the judge’s charge — a charge that, in light of Harris, was overly favorable to appellant — and declined to consider the substance of the statement as evidence. On these facts, we decline to rule that appellant was denied due process.

II

Appellant further contends that he was denied due process by Mrs. Rippel’s identification of him at trial and by admission of evidence of her prior lineup identification. Specifically, he claims that the lineup was unduly suggestive and violated the fourteenth amendment. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); see also Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L.Ed.2d 402 (1969). At a Wade hearing held just before trial, appellant testified that Lieutenant Reiss, who picked him up at home in the early morning five days after the rape, told him to wear a green sweater. He did so, and later that morning at a lineup was named by Mrs. Rippel as her assailant. This fact assumes significance because of the Lieutenant’s prior testimony given at the Huntley hearing. There, he stated that before picking up appellant, he had read the complaints of the women in the three cases in which he suspected Cannon, noted that in two of the incidents the attacker wore a green shirt and further recalled that Cannon had on a similar garment at the time of their initial meeting earlier that day.

The victim testified at the Wade hearing that she had viewed appellant at a lineup and selected him from among five Negro males. By the time of the hearing, she could not recollect what the others had worn; she did, however, remember that appellant — like her attacker— had been wearing a green shirt. In addition, her testimony at trial revealed that she had never seen her assailant’s face. (Mrs. Rippel’s observations were understandably limited since she was assaulted at night on the street, grabbed from behind and raped with her skirt held over her head.)

Detective Mahoney, too, gave evidence at the Wade hearing. He was the only one to describe the other men in the lineup in relationship to Cannon. According to the officer:

They were all of within an inch or two or approximately the same height and approximately the same in weight. And one or two approximately the same in dress. (Emphasis added.)

Detective Mahoney did not, however, testify — indeed, he was never asked — about the color of the clothing of the other men in the lineup or whether any of them wore green.

In confrontations of this kind, the Supreme Court has held that due process is violated whenever an identification device is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The test is extremely general, and in each case one must examine the totality of circumstances to determine whether the challenged procedure infringed constitutional rights. See, e. g., Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States ex rel. Gonzalez v. Zelker, 477 F.2d 797 (2d Cir. 1973).

Assuming arguendo that appellant was the only man in the lineup wearing a green shirt, we might well be disposed to hold that the identification method was impermissibly suggestive. See Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) (among other things, defendant only man in “leather jacket similar to that worn by the robber”). But cf. United States ex rel. Anderson v. Mancusi, 413 F.2d 1012, 1014 (2d Cir. 1969) (defendant’s red shirt “stood out like a neon sign”). This conclusion would be fortified by the indication of police complicity in arranging an unfair lineup. Cf. United States ex rel. Gonzalez v. Zelker, supra, 477 F.2d at 803.

However, even a finding of unnecessary suggestiveness need not require the exclusion of identification evidence. One must then assess the likelihood of misidentification by weighing such external factors as

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972).

At the end of the Wade hearing, the state judge held that the lineup was constitutionally valid. He therefore denied appellant’s motion to suppress Mrs. Rip-pel’s lineup and in-court identifications. We are commanded to accord great weight to the findings of the state trial judge, 28 U.S.C. § 2254(d), “who saw and heard the witnesses,” United States ex rel. Phipps v. Follette, 428 F.2d 912, 915 (2d Cir. 1970). Cf. United States ex rel. Miller v. LaVallee, 436 F.2d 875, 876-877 (2d Cir. 1970). As noted previously, however, the Wade hearing did not elicit any comparative evidence on the colors worn by the other men at the lineup. If all were dressed in green the inference of undue suggestion would clearly fail. If one or two had on green shirts, the inference would .weaken very considerably. On the other hand, if the inference remained, it would acquire great importance in a case where the victim’s “opportunity ... to view the criminal at the time of the crime” was limited, as appears to be the case here. Neil v. Biggers, supra, 409 U.S. at 199, 93 S.Ct. at 382.

Apparently, neither the state trial court nor the federal district court focused on this aspect of appellant’s claims. Moreover, as already indicated, the record on a significant factual question is sparse. Under these circumstances, we decline to decide the ultimate issue of taint. Because “the material facts were not adequately developed at the State court hearing,” 28 U.S.C. § 2254(d)(3), we remand to the district court to conduct a further Wade hearing, taking into account the factors which we have cited, or, in the alternative, to hold the case in abeyance so as to allow the state tribunal to oversee such proceedings.

Ill

Appellant raises two additional points in his brief. He challenges the state court’s finding at the Huntley hearing that, as to the oral admissions, appellant voluntarily and knowingly waived his Miranda rights. On this issue, however, appellant had a full and fair hearing on the facts. The trial judge determined the matter adversely to him on the merits. We see no reason to substitute our judgment for his and, therefore, hold that the oral statements were properly received in evidence.

Finally, appellant contends that his conviction in the absence of any admissible evidence violated his right to-due process. Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Under New York law, the complaining witness’ testimony in sexual offense cases must be corroborated by other evidence tending to prove the crime. N.Y.Pen.L. § 130.15 (McKinney’s Consol. Laws, c. 40 Supp.1972). Here, Mrs. Rip-pel’s account at trial was bolstered by appellant’s oral admissions which, as we have held, were properly before the jury. Accordingly, there is no such failure of evidence as would invalidate appellant’s conviction under the Thompson rationale.

Case remanded for further proceedings consistent with this opinion. We commend Frederick A. Provorny, as appointed counsel, for his splendid representation of appellant.

FRIENDLY, Circuit Judge

(dissenting in part):

This is the rare state prisoner habeas-appeal where there is reasonable doubt whether petitioner committed the crime. At the time of the alleged rape the victim did not see her assailant’s face; she caught only a glimpse of his clothing and noticed that he was wearing a green upper garment. In direct testimony she claimed to have seen Cannon standing across the street from her while she was walking home and to have seen him walking through a gas station across from her shortly before she was attacked, but this was substantially weakened on cross-examination. While I agree that, at minimum, there must be a determination whether the lineup was impermissibly suggestive, I would go further and direct that even if this investigation should be concluded favorably to the State, the writ should nevertheless issue on the usual conditions because the prosecution was improperly permitted to introduce evidence of the contents of the typewritten statement.

The prosecutor’s use of the typewritten statement to rehabilitate Detective Funk was highly questionable from the first. In the preliminary hearing, Funk testified unequivocally that Cannon was first questioned about the Rippel incident at about 9:30 a. m. This would be logical since the first written statements, each preceded by oral questioning, related to the Stevens and Sprague attacks. At trial, however, Funk changed his story and said that Cannon had been questioned orally about the Rippel incident at about 8:35 or 8:40 a. m. in between the oral and written statements on the Stevens attack. The difference, of course, was critical — and highly suspect — since the trial judge had found that Cannon requested an attorney in the course of the stenographic statement taken at 8:45 a. m. and had therefore properly excluded any of Cannon’s admissions made thereafter. On cross-examination, defense counsel read at length from Funk’s testimony at the preliminary hearing. Funk insisted that this testimony was accurate, in spite of the clear conflict between it and his testimony on direct examination at the trial. Defense counsel concluded his cross-examination with the following exchange:

Q. Well, at that time, fifteen days after the questioning, was that a true statement you made that at about 9:30 you questioned him about this incident?
A. Yes, sir. That was the first statement we took in regards to this incident.
Q. At 9:30?
A. At 9:30, yes sir.

Immediately thereafter, on redirect examination, the prosecutor seized upon the word “statement” in Funk’s penultimate response and utilized the latent ambiguity in the word as a wedge:

Q. What do you mean by “statement,” Detective?
A. Statement would be something which was transcribed onto paper. In other words, a stenographic statement or a statement which we would type ourselves in response to our questions.
Q. So, you’re referring to these later questions, or statements as you call them, after nine o’clock to what?
A. To the statement which we took from Mr. Cannon on the typewriter.

While it hard to avoid believing that the detective and the prosecutor had prepared this “rehabilitation” by arranging for the detective to use the word “statement” on cross-examination, we need not go on that ground. Once the ambiguity about the word “statement” was established and Detective Funk asserted he had been referring to the later typewritten statement, the rehabilitative purpose of the redirect examination was achieved. Yet the prosecutor did not rest at that point but proceeded to introduce as much evidence about the contents of the statement as he could.

The prosecutor first asked Detective Funk to describe how the statement was taken; he then elicited the testimony that Cannon had signed the statement; and finally, and most important, he asked, “And in sum or substance does that document relate what the defendant previously told you orally?” Funk answered, “Yes, sir, it is.”

This testimony brought out critical information about the contents of the typewritten statement, which went well beyond any legitimate rehabilitative purpose. Coming in the wake of detailed accounts of Cannon’s alleged oral admissions, Funk’s testimony amounted to far more than an “oblique” reference to the contents of the typewritten statement, as the majority characterizes it. In effect, it constituted direct evidence that Cannon had signed a written confession of guilt, which the jury could use to convict him or to buttress testimony about his alleged earlier oral admissions.

The majority concludes that the judge’s instructions to the jury were sufficient to cure any error in admitting evidence of the contents of the statement. I disagree. After having deliberated for about two hours, the jury asked the court, “Can we consider the typewritten statement of Cannon as evidence?” The court responded as follows:

My response to that ... is that a typewritten statement of Cannon was alluded to during the trial and was marked for identification. Reference was made to one on one or more occasions, that one was typed, where it was typed and some of the circumstances concerning it.
Now, these references are testimony and may be considered by you. However, the statement itself was never introduced into evidence, and therefore you may not consider it as evidence. All right?

The jury’s question makes it clear that they were seeking advice whether they* could consider the testimony about the contents of the typewritten statement as evidence of Cannon’s guilt. The natural interpretation of the court’s answer would be that they could consider all the testimony about the statement for any purpose, but they could not consider “the statement itself,” since the piece of paper containing the statement had never been introduced into evidence. Under this direction, it seems entirely likely that the jury understood that it could consider Funk’s testimony that the typewritten statement and the oral statement were identical in “sum'and substance,” and that it could rely on Funk’s characterization of the contents of the typewritten statement in determining guilt or innocence.

Partly on the basis of its erroneous analysis of the court’s instruction, the majority proceeds to conclude that Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), rescues the conviction. The argument is that since the judge could have allowed the prosecutor to introduce the typewritten statement to impeach Cannon, his error in admitting evidence of the contents of the statement “would have had no independent significance had the trial judge allowed the prosecutor proper latitude in cross-examination.” However, use of the contents under Harris would have had to be strictly limited to impeachment. Assuming, as the Court did in Harris, that a properly instructed jury can distinguish between use for impeachment and use in the case in chief, the introduction of the typewritten statement solely for impeachment would have had no such destructive effect as it did. Although the majority appears to doubt a jury’s power to make such fine distinctions, the belief in this ability lies at the heart of Harris. Moreover, the jury in this case seemed exceptionally receptive to limiting instructions. The question to the trial judge invited an instruction that they must ignore the contents of the typewritten statement. Unhappily, while that instruction was required, it was not given.

      . People v. Cannon, 61 Misc.2d 171, 305 N. Y.S.2d 108 (Monroe Cy. Ct. 1969).

      . Appellant filed his first petition in November 1970. Chief Judge Henderson denied it, without prejudice to renewal upon a showing of exhaustion of state remedies. Thereafter, Cannon filed a certificate of the New York Court of Appeals declining review of his case; in June 1972, Judge Henderson denied the petition on the merits. Appellant submitted his second application for relief in October 1972. In February 1973, Judge Burke refused to issue the writ on the ground that Cannon’s petition was the same as the one already denied.

      . Appellant also disputes the failure to strike these oral admissions. This issue is discussed below.

      . After several hours of deliberation, the jury returned to the court and asked to hear for a second time the entire testimony of Detectives Mahoney and Funk. The request was granted.

      . Neither side originally made any argument based upon Harris, but we called the point to the attention of the parties, and asked for, and received, post-argument briefs on the issue.

      . At tlie trial, appellant reiterated this evidence with the added fact that he had originally been getting ready to put on a different sweater. On cross-examination, Lieutenant Reiss corroborated the story.

      . See part III infra.

      . See also Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), barring confrontations that are “unnecessarily suggestive and conducive to irreparable mistaken identification.”

      . Of course, if a new Wade hearing should invalidate the lineup and in-court identifications, a problem of insufficient evidence— though not necessarily one of due process dimensions—might conceivably arise. N.Y. C.P.L. § 60.50 (McKinney’s Consol.Laws, c. 11-A, 1971) (necessity for corroboration, of confession).


author:
WISDOM, Circuit Judge:
      CLARK, Circuit Judge

text:
    George ORR, Plaintiff-Appellant-Cross Appellee, v. UNITED STATES of America, Defendant-Third-Party Plaintiff-Appellee-Cross Appellant, Meador Contracting Company, Inc., Third-Party Defendant.
    No. 72-3229.
    United States Court of Appeals, Fifth Circuit.
    Sept. 14, 1973.

      David R. Lewis, Jacksonville, Fla., William M. Ford, Alexandria, La., for George Orr.
    Richard L. Robison, Orlando, Fla., for Meador Contr. Co., Inc.
    John L. Briggs, U. S. Atty., Robert A. Leventhal, Asst. U. S. Atty., Jacksonville, Fla., James P. Klapps, Trial Atty., Ronald R. Glancz, Morton Hollander, Walter Fleischer, Greer S. Goldman, James C. Hair, Jr., Dept, of Justice, Washington, D. C., for the United States.
    Before WISDOM, GEWIN and CLARK, Circuit Judges.
   WISDOM, Circuit Judge:

George Orr was severely injured while working on electrical power lines on a federal installation in Florida. He brought suit against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, and the Government in turn filed a third party claim against the contractor and the subcontractor, Orr’s employer. After a nonju-ry trial, the district court found that Orr’s injuries were the result of the combined negligence of the Government, Orr, and the subcontractor: the Government was 30-percent responsible, and Orr and the subcontractor were each 35-percent responsible. Apportioning damages under the comparative negligence standard of Florida’s Hazardous Occupations Statute, Fla.Stat.Ann. §§ 769.01-769.05, the court ordered the Government to pay Orr damages representing 30 percent of the total. From this judgment both Orr and the United States appeal. We affirm.

I

On February 5, 1968, the United States entered into a construction contract with Meador Contracting Company, Inc. (Meador I) for the replacement of an overhead electrical circuit at Patrick Air Force Base, Florida. That same day Meador I subcontracted for the performance of the contract with Meador Contracting Company of Louisiana, Inc. (Meador II). The work, to be performed in compliance with Government safety requirements and subject to inspection and supervision by Government personnel, involved the replacement of a “critical circuit” carrying electricity generated by the Government and distributed throughout the Base. The Government generated its own electricity because some of its equipment, such as radar, was too sensitive to endure the fluctuations of commercially supplied electricity. For other Base needs, the Government purchased current from the Florida Power & Light Company.

By early July 1968 the work required under the contract had been substantially completed, and preparations were made to splice the new circuit into the remaining lines. Employees of Meador II arranged with a Mr. Bell, the Government inspector responsible for supervising Meador’s performance, to cut the flow of current on the lines to be worked on. This “outage” was accomplished on Saturday and Sunday, July 13 and 14. Orr testified that on July 13 he overheard Bell advise another Meador employee that “the line was dead.”

Orr ascended pole 14 on Sunday, July 14. He was not an experienced lineman. For example, he neither “buzzed” the lines, to find out if they were “hot”, nor employed safety equipment, such as rubber gloves or a rubber blanket. Indeed, he took no precautions at all against the possibility that one of the lines was energized.

Pole 14 held a number of wires. The top wire carried 13,000 volts purchased by the Government from the Florida Power & Light Company and distributed through Government lines on Government poles. A fellow employee had advised Orr that this line was hot. Beneath the hot wire were the critical circuit lines on which Orr was to work; these lines were not energized. Closest to the ground were other lines which Orr assumed were also dead. These lines, however, were connected to the top wire by “stringers” or “jumpers”, and thus current flowed from the top to the bottom wires. Consequently, the bottom wires were energized. When he climbed the pole, Orr came into contact with one of these energized lower wires and suffered severe injuries. As a result of the accident, Orr lost both legs and a substantial portion of his vision.

Before filing this action, Orr settled a suit brought in state court against Mea-dor I, Meador II, certain of their officers, and their insurance carriers. For $52,000 Orr released the defendants in that suit from any further liability for claims arising from his accident, and he agreed to “indemnify and hold harmless and defend all the parties herein released”. On April 1, 1971, Orr sued the United States. The United States joined both Meador I and Meador II as third party defendants, relying on a clause in the construction contract holding Meador I “responsible for all damages to persons or property that occur as a result of [the contractor’s] fault or negligence”, and on a clause in the subcontract providing that Meador II agreed “that all terms and conditions of the Prime Contract are binding on this agreement, whether incorporated herein or not.”

The district court found that Orr had suffered damages of $328,322, resulting from the combined negligence of the Government, Meador II, and Orr. The United States was negligent in allowing dead lines to be sandwiched between live ones on pole 14. Moreover, government inspector Bell knew, or should have known, that work would be performed on pole 14, and he should have ensured that the outage included disconnecting the stringers so that no current flowed through the bottom wires. Meador II’s negligence consisted of failing to follow the safety procedures required in its contract. Orr was himself negligent in not taking precautions for his own safety.

As earlier stated, the court found the Government's negligence 30-percent responsible for the accident; Meador II and Orr were each 35-percent responsible. Taking 30 percent of the total award, the court ordered judgment against the United States in the sum of $98,496.60.

II

Under the Federal Tort Claims Act the United States waives its sovereign immunity for claims resulting from the negligent acts of its agents and accepts liability “in the same manner and to the same extent as a private individual under like circumstances”. 28 U. S.C. § 2674. What constitutes a legal duty and when such a duty has been breached are questions to be settled in accordance with “the law of the place where the act or omission occurred”. 28 U.S.C. § 1346(b). See United States v. Muniz, 1963, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805. And the choice of law is not affected by the fact that the claim in question arises on federal property, such as a military installation, within a state. See Ford v. United States, 10 Cir. 1952, 200 F.2d 272. In the instant case, therefore, liability is determined by the law of Florida.

The United States maintains that, because Orr was the employee of Meador II and was working under the subcontractor’s control and supervision, the Government had no legal duty to guard his safety. That responsibility, argues the Government, was solely Meador’s and Orr’s. The Government correctly states the general rules: the contracting owner is not usually held liable for the torts of an independent contractor, Baum v. United States, 5 Cir. 1970, 427 F.2d 215, 218, cert, denied, 400 U.S. 916, 91 S.Ct. 175, 27 L.Ed.2d 155; Roberson v. United States, 9 Cir. 1967, 382 F.2d 714, 717; Kirk v. United States, 9 Cir. 1959, 270 F.2d 110, 116; nor does the contracting owner incur a duty to the employees of an independent contractor merely by reserving the right to conduct safety inspections or to prescribe safety requirements. Baum v. United States, supra; United States v. Page, 10 Cir. 1965, 350 F.2d 28, cert, denied, 382 U.S. 979, 86 S.Ct. 552, 15 L. Ed.2d 470.

But the United States owed Orr a duty flowing from a different source. Florida law will not permit one to avoid responsibility for his own negligence by employing an independent contractor to perform certain hazardous activities. When the relationship between the parties is sufficiently close and the work is sufficiently hazardous, Florida applies an exception to the general rule and requires the contracting owner to act nonnegligently toward the employees of an independent contractor. Florida Power & Light Co. v. Price, Fla.1964, 170 So.2d 293; Florida Power & Light Co. v. Brinson, Fla.1953, 67 So.2d 407; Vanlandingham v. Florida Power & Light Co., 1944, 154 Fla. 628, 18 So.2d 678. Both criteria necessary to trigger the exception are present in this case. It is clear that working in close proximity to the high tension power lines that form the channels for transporting thousands of volts of electricity is a “hazardous or intrinsically dangerous” activity within the meaning of Florida law. See Ahearn v. Florida Power & Light Co., Fla.App.1961, 129 So.2d 457, 461. It is also clear that during the time he was working on Patrick Air Force Base Orr was an invitee of the United States. Id. As an invitee performing hazardous duties in fulfillment of the Government’s contract, Orr was owed a high degree of care which could not be delegated. The Florida Supreme Court has described the standard of care owed invitees working on high tension lines:

[W]e feel it appropriate to say that . . . where men are engaged in such dangerous work and thereby are constantly only a second from eternity the highest degree of care — short of being an insurer — is required of those operating the facility. This does not mean that there is a requirement to make the place absolutely safe or that the defendant is an insurer of the safety of the employee but it does mean that it requires the degree of care commensurate with the circumstances then existing or which may reasonably be expected to exist. Van-landingham v. Florida Power & Light Co., 1944, 154 Fla. 628, 18 So.2d 678.

Florida Power & Light Co. v. Brinson, supra, 67 So.2d at 410-11. See also Florida Power & Light Co. v. Price, supra, at 296; Robinson v. Florida Power & Light Co., Fla.1953, 68 So.2d 406.

The Florida courts have held that what is meant by the “high degree of care” owed invitees performing hazardous jobs for independent contractors is to be determined by the circumstances of each case. Florida Power & Light Co. v. Robinson, supra. We are satisfied that the standard was not met in this case. The trial court found the Government negligent in permitting the flow of electricity through wires below the de-energized critical circuit on pole 14 when Bell, the government inspector, knew, or should have known, that work would be performed on that pole. The court found that the stringers linking the top “live” wire on the pole with the bottom wires should have been disconnected by the Government before any work was carried out. This was clearly the responsibility of the United States; the United States owned the poles and lines and controlled the distribution of current. Finally, neither Bell nor any other government employee made any attempt to warn Orr of the danger involved in working on pole 14. Indeed, Bell may have actively misled Orr by advising Meador employees, within Orr’s hearing, that “the line was dead.”

The findings of the trial court must be accepted by this Court unless clearly erroneous. See McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20; Market Insurance Co. v. United States, 5 Cir. 1969, 415 F. 2d 459, 461. We find no support for upsetting the trial court’s findings in this instance.

Ill

The trial court placed 35 percent of the fault for Orr’s injuries on Orr himself. Under common law principles, of course, Orr’s contributory negligence would disqualify him from any recovery, regardless of the proportion of blame. The Government argues that the principles of contributory negligence should apply in this ease and that a correlative holding that the Government is not liable is required. We disagree. By statute the doctrine of comparative negligence was correctly invoked by the district court.

The Florida Hazardous Occupations Statute has long protected workers in certain industries from the sometimes harsh results of the doctrine of contributory negligence. For the complete bar of contributory negligence, the statute substitutes recovery based on the proportion of blame borne by the defendant when the defendant is a “person engaged in . railroading, operating street railways, generating and selling electricity, telegraph and telephone business, express business, blasting and dynamiting, operating automobiles for public use, boating, when boat is propelled by steam, gas or electricity”. Fla.Stat.Ann. § 769.01. The Government argues unpersuasively that it does not fit within the statute.

The Government maintains that it was not “generating and selling electricity” within the meaning of the statute, and thus that its responsibility for the accident is erased by Orr’s contributory negligence. Technically, perhaps, the United States was not generating electricity on Patrick Air Force Base for “sale”. Rather, the Government generated electricity for its own consumption. But we consider it unsound to give the Hazardous Occupations Statute a restrictive interpretation. The Florida courts have themselves called for a liberal construction: “As the Act . was designed to extend and not to curtail the liability of employers to employees engaged in hazardous occupations, the language used should be given its proper meaning and effect.” Gulf, F. & A. Ry. Co. v. King, 1917, 73 Fla. 325, 74 So. 475, 478.

To Orr, or to anyone else working on power lines, there is no difference in hazard between electricity sold to the public and electricity used internally by the generating entity. As the Florida courts have recognized, the danger is created by the “generation and distribution” of electricity, Ahern v. Florida Power & Light Co., Fla.App.1961, 129 So.2d 457, 461, not the fact of sale. Moreover, in the context of the remainder of the provision the “and” takes on more of a disjunctive than conjunctive flavor. Thus, we do not read the provision to require that the employer participate in both selling and generating before its employees gain the benefit of the Act. Generating and/or distributing electricity is sufficient to create great risk of injury; it is, we think, sufficient to invoke the protections of the Act.

The Government asserts that the Hazardous Occupations Statute is intended only to require those engaged in a hazardous activity for profit to bear an equitable proportion of the losses resulting from injuries sustained by their employees. There is no support for this contention. Even “selling” does not imply that only private industries are intended to be covered. Furthermore, the Supreme Court of Florida has extended the coverage of the Act to governmental units. See City of Sebring v. Avant, 1928, 95 Fla. 960, 117 So. 383. Profit motive is plainly irrelevant.

Florida’s Hazardous Occupations Statute provides that “[t]he persons mentioned in § 769.01 shall be liable in damages for injuries inflicted upon their agents and employees”. Fla. Stat.Ann. § 769.02. (Emphasis supplied.) At the time of his accident, Orr was employed by Meador II. Since Orr was neither the Government’s employee nor its agent, the Government argues that the Hazardous Occupations Statute, therefore, does not apply.

The Florida Supreme Court has spoken obliquely to the issue of whether employees of independent contractors may gain the protection of the Act to recover under principles of comparative negligence against the contracting owner. In Florida Power & Light Co. v. Price, Fla.1964, 170 So.2d 293, Harlan Electric Company contracted to construct an electrical distribution system for Florida Power & Light Company. The plaintiff, an employee of Harlan, was injured when a fellow employee caused the wire upon which the plaintiff was working to become energized. The court held that Florida Power & Light, as the contracting owner, was not liable under Chapter 769 in the absence of a showing that it was negligent. In the course of its opinion the court said:

It is true the defendant is engaged in selling electricity and is one of the class of persons referred to in F.S. § 769.01, F.S.A., but this alone does not render it liable for injuries to an employee of its independent contractor caused by the negligence of a fellow employee of the independent contractor unless it can be shown defendant in someway contributed or concurred in the act of negligence.

Id. at 297. (Emphasis supplied.) We follow the court’s implication and hold that, if a showing of negligence is made, the contracting owner may be liable under Chapter 769 for injuries to the employees of an independent contractor.

After argument in this case, the Florida Supreme Court in the landmark decision of Hoffman v. Jones, Fla.1973, 280 So.2d 431 abrogated the contributory negligence doctrine and joined the growing number of states that have adopted a comparative negligence standard for all torts cases. Prior to the holding of the Florida Supreme Court, the Florida Bar struggled in the confusion created when the District Court of Appeal, Fourth District, held that despite historic and uniform practice to the contrary, comparative negligence was the proper rule for Florida. Jones v. Hoffman, Fla.App.1973, 272 So.2d 529. In an apparent attempt to end the confusion as to when the new rule would be applied, the Florida Supreme Court declared that the comparative negligence standard would be applied, inter alia, “to those eases in which the comparative negligence rule has been applied” and “to those cases on appeal in which the applicability of the comparative negligence rule has been properly and appropriately made a question of appellate review”. Hoffman v. Jones, supra, 280 So.2d at 440. Because we hold that the doctrine of comparative negligence applies to the instant case under Chapter 769, we do not reach the question of whether the comparative negligence standard would be otherwise applicable to this case under the criteria set forth in Hoffman.

IV

Orr maintains that the lower court erred in its computation of the judgment payable by the United States under Chapter 769. Judge Young below found the United States 30-percent responsible for Orr’s injuries and awarded judgment against the United States for $98,496.60, a sum representing 30 percent of the total damages of $328,322 sustained by Orr. Orr contends that he should be awarded a judgment against the United States for 65 percent of the total damages since this is the percentage of culpability not borne by Orr. After a set off of $52,000 received in settlement of Orr’s claim against Mea-dor I and Meador II, Orr would then be entitled to recover a total of $161,409.30 against the United States. Orr’s argument is based on the premise that under the Florida Hazardous Occupations Statute, a plaintiff is entitled to a full recovery — less a proportional amount related to his negligence — against any one negligent defendant.

Section 769.03 of the Florida Statutes provides that “the amount of recovery shall be such a proportion of the entire damages sustained as the defendant’s negligence bears to the com-, bined negligence of both the plaintiff and the defendant”. Orr relies on language from a number of Florida cases to buttress his position that the proper method of computation under Chapter 769 is to start with a full recovery and to diminish it by the amount of the plaintiff’s negligence. Each of the cases cited to us by Orr, however, deals with only one defendant; none purports to state the rule where there are multiple defendants. Nor does the common law rule making each joint tort feasor liable for the entire amount of the damages properly obtain here. Although this rule has been generally followed in Florida, see, e. g., Colle v. Atlantic Coast Line R.R. Co., 1943, 153 Fla. 258, 14 So. 2d 422; One Hundred Seventy Second Collins Corp. v. Rosene, Fla.App.1969, 222 So.2d 444, here we have one common law rule sought to be applied to a statute that discards another common law rule. In short, we are forced to consider the proper method of computation under Chapter 769 when there are multiple defendants to be an open question, unanswered by the Florida courts.

It is unnecessary for us to attempt an answer ourselves, because, even assuming that Orr has correctly divined the proper method of computation, by a chain of indemnification any recovery Orr might gain against the United States for that portion of the damages traceable to the negligence of Meador II would in turn be recoverable from Meador II and finally from Orr himself. The circle is complete. First, when Orr settled with Meador I and Meador II, he agreed to indemnify them for any further related claims. The applicability and enforceability of this agreement is not disputed. Second, the construction contract between Meador I and the Government provides that Meador I is responsible for any damages resulting from its negligence. In United States v. Seckinger, 1970, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224, the Supreme Court of the United States construed an indemnity agreement substantially identical to the one between Meador I and the Government in this case. The Court in Seckinger held that the agreement apportioned liability between the parties on the basis of comparative negligence. Applied to this ease, Seckinger entitles the Government to indemnification for any payment it makes to Orr for which, as between Meador I and the Government, Meador I must bear the blame. Although the district court did not find Meador I guilty of negligence, we think that under the indemnification agreement Meador I is responsible for the results of the negligence of its subcontractor, Meador II. Meador I agreed to ensure the compliance of any subcontractor with the safety provisions of the construction contract. And in the absence of convincing evidence to the contrary, we cannot believe that the intent of the parties was to permit the contractor to eliminate the Government’s right to indemnification by simply subcontracting it away. Finally, Meador II agreed to assume all the obligations that Meador I undertook in its contract with the Government. Thus, Meador II remains liable to Meador I for the results of its negligence.

If the Government were to pay Orr damages resulting from the negligence of Meador II, therefore, the Government could gain reimbursement from Meador I, Meador I could gain reimbursement from Meador II, and Meador II could gain reimbursement from Orr. It is not clear from the district court’s opinion whether the court’s failure to give judgment against the United States for more than 30 percent of Orr’s damages resulted from the court’s refusal to do a useless act in the face of the unbroken chain of indemnity, or whether it resulted from the court’s belief that the proper method of computation under Florida law is to limit recovery against each defendant to that proportion of the total damages for which it is responsible. Because we endorse the first theory, we

Affirm.

CLARK, Circuit Judge

(dissenting):

It is common knowledge that working with electricity is a highly dangerous business. When the United States chose to contract this installation to a corporation specializing in such work, it was acting in complete accord with a proper recognition of this danger. The effect of the majority opinion is to place the burden of continuously supervising such a contractor upon an owner who hires a specialist to accomplish this necessary, albeit hazardous, task. The district court and the majority have wholly failed to deal with undisputed facts' which I find controlling on the issue of negligence. I therefore dissent.

The contract bought and paid for this job to be done in strict compliance with adequate safety standards. More importantly, the agreement expressly provided that the price included the costs of such extra precautions as were necessary to allow the work to be accomplished during periods when the wiring was energized as well as at times when the current was off.

The government did not know that Orr, who described himself as a “climbing grunt,” was not qualified as a lineman ; nor did it even know that Orr was the particular person the contractor would utilize to accomplish its work on pole 14 on this date. It did know that it had contracted that no one other than qualified personnel would work in areas of possible contact with energized circuits. It also knew that the required electrical specialist could have climbed pole 14, at the time Orr hurt himself, with complete safety by following the safety procedures mandated by the contract.

The district court predicated its finding of negligence on the part of the United States upon (1) the fact it left current flowing in some of the wires on pole 14 and (2) a failure to warn Orr of the danger of working around energized circuits without following contractual procedures. (The majority adds the pure speculation that Orr may have been misled by misunderstanding a conversation between others which he overheard.)

Under the facts that are entirely without dispute and giving Orr the benefit of every contested fact and all favorable inferences, I can find no basis in this record for affixing any duty upon the United States to de-energize any of the circuits on pole 14, nor do I find any basis for imposing a duty to warn employees of an electrical specialist to do their work in accordance with the contract or to tell any particular employee of the contractor that the work as contracted for could be dangerous if not properly done.

Every condition existing on pole 14 on the occasion of this accident was not only in accordance with the terms of the agreement, but was also free from danger of electrical shock to qualified personnel acting in accordance with the procedures called for. The United States was not bound to anticipate that Meador would breach its agreement by sending an unqualified groundman up an energized pole.

Since I would reverse the findings of negligence and causation, I do not reach the majority’s interpretation of Florida Power and Light Company v. Price, 170 So.2d 293 (Fla. 1964), or its Erie guess as to Florida’s law of liability among joint tort-feasors where contribution is applicable.

      . The construction contract between the Government and Meador I provided:
      “(a) In order to provide safety controls for protection to the life and health of employees and other persons: for prevention of damage to property, materials, supplies, and equipment: and for avoidance of work interruptions in the performance of this contract, the Contractor shall comply with all pertinent provisions of Corps of Engineers Manual, EM 385-1-1, dated 1 March 1967, entitled ‘General Safety Requirements’, as amended, and will also take or cause to be taken such additional measures as the Contracting Officer may determine to be reasonably necessary for the purpose.
      (c) The Contracting Officer will notify the Contractor of any noncompliance with the foregoing provisions and the action to be taken. The Contractor shall, after re-
      ceipt of such notice, immediately take corrective action ....
      (d) Compliance with the provisions of this article by subcontractors will be the responsibility of the Contractor.
      The work will be conducted under the general direction of the Contracting Officer and is subject to inspection by his appointed inspectors to insure strict compliance with the terms of the contract. No inspector is authorized to change any provision of the specifications without written authorization of the Contracting Officer, nor shall the presence or absence of the inspector relieve the Contractor from any requirements of the contract.”

      . Although Orr was not a qualified lineman, he was performing and being paid as a lineman at the time of the accident.

      . Orr also received as settlement: $40,000 workmen’s compensation, $5,000 for medical expenses, and $8,000 for attorney’s fees.

      . The contract between the United States and Meador I required the contractor to comply with the provisions of Corps of Engineers Safety Manual, EM 385-1-1. The Manual provided that circuits be de-ener-gized before work was started and that rubber gloves and protective equipment be used when it was necessary to work on energized lines. Meador II became bound by these requirements when it subcontracted for the job.

      . The Federal Government is in no circumstances liable under the Federal Tort Claims Act in the absence of fault. Dalehite v. United States, 1953, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427; Emelwon, Inc. v. United States, 5 Cir. 1968, 391 F.2d 9, cert, denied, 393 U.S. 841, 89 S.Ct. 119, 21 L.Ed.2d 111.

      . See Note 1, supra.

      . If the other conjunctions in the provision were given the same strict connective effect the Government argues is proper for “generating and selling”, a telephone company could avoid liability under the Act by not also engaging in telegraph business, or a construction company could avoid the Act by utilizing some blasting material other than dynamite.

      . The Government argues that a contrary conclusion is required by the following statement, also from Price:
      “Unless and until it is shown the contracting owner by positive act of negligence or negligent omission on his part causes injury to the independent contractor or to the latter’s employee or employees, such owner will not be held liable. The employees of the independent contractor do not become the employees of the contracting owner within the contemplation of Chapter 769, F. S., F.S., nor are they under his direction and control. Their negligent acts do not become his responsibility under the doctrine respondeat superior.”
      170 So.2d at 298. (Emphasis supplied.) In context it is clear that in the italicized portion above the court was referring to negligent fellow employees of the independent contractor, not to employees of the independent contractor who are injured through the negligence of the contracting owner.

      . The computation of damages under the Federal Tort Claims Act is controlled by state law. Feeley v. United States, 3 Cir. 1964, 337 F.2d 924.

      . Tampa Electric Co. v. Hardy, 1939, 139 Fla. 142, 190 So. 478, 480 (“[I]f both were at fault the recovery should be decreased by proportion that employee’s negligence bore to the whole.”) ; Kirkland v. City of Gainesville, 1936, 122 Fla. 765, 166 So. 460, 464 (“[T]here may be a recovery of damages to he diminished in proportion to the negligence, if any, of the decedent”.) ; Key West Electric Co. v. Higgs, Fla.1931, 136 So. 639, modified on other grounds, 140 So. 327 (“[T]he recovery shall not be full damages, but only a diminished sum bearing the same relation to the full damages that the negligence attributable to the defendant bears to the negligence attributable to both; the purpose being to exclude from the recovery a proportional part of the damages corresponding to the employee’s contribution to the total negligence.”)

      . Indeed, the recent case of Hoffman v. Jones, supra, hints that the proper method of computation in the case of multiple defendants in a comparative negligence situation is to award judgment against a defendant only in the amount representing his share of the fault. The court said: “A primary function of a court is to see that legal conflicts are equitably resolved. In the field of tort law, the most equitable result that can ever be reached by a court is the equation of liability with fault.” Id. 280 So.2d at 438.

      . Federal law controls the construction of the clause. United States v. Seckinger, 397 U.S. at 209, 90 S.Ct. 880; United States v. Alleghany, 1944, 322 U.S. 174, 183, 64 S.Ct. 908, 88 L.Ed. 1209.

      . See Note 1, supra.

      . The classification of “climbing grunt” which Orr assigned to himself in his testimony is paradoxical. The testimony disclosed that a “grunt” is the colloquial title given to a ground-based helper whose task is to pass equipment and materials up to linemen who are at work on overhead circuits.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    Ann C. GILLESPIE, Plaintiff-Appellee, v. The TRAVELERS INSURANCE COMPANY, a corporation, Defendant-Appellant.
    No. 72-2020.
    United States Court of Appeals, Ninth Circuit.
    Oct. 18, 1973.
    Rehearing Denied Nov. 30, 1973.

      Kenneth P. Jacobus (argued), Arden E. Page, Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, Alaska, for defendant-appellant.
    Herbert Berkowitz (argued), Ely, Guess & Rudd, Anchorage, Alaska, for plaintiff-appellee.
    Before BARNES, WRIGHT and GOODWIN, Circuit Judges.
   EUGENE A. WRIGHT, Circuit Judge:

Clinton Gillespie was killed when the helicopter in which he was a passenger crashed on a mountain side in Alaska. His widow sued in the Alaska state court to recover as beneficiary under the double indemnity provision of a “selective accident” insurance policy on the life of Mr. Gillespie. The policy, issued by the defendant, The Travelers Insurance Company, insured against accidental injuries and accidental death.

Travelers removed the case to the district court and counterclaimed to recover the single indemnity benefits previously paid. Following a combination of partial summary judgment and a jury verdict, the district court entered judgment for Mrs. Gillespie on both claims. Travelers appeals. This court has jurisdiction under Title 28, U.S.C. § 1291.

Mrs. Gillespie’s recovery under the policy depends upon an interpretation of two of the policy’s clauses. The aviation exclusion clause excluded the helicopter accident from coverage unless the aircraft was “being used for transportation only and not for any purpose such as testing, experimenting, or any other purpose except the sole purpose of transportation.” Travelers, in resisting Mrs. Gillespie’s motion for summary judgment, was prepared to introduce evidence suggesting that the helicopter was engaged in aerial reconnaissance at the time of the accident. Notwithstanding this offer, the district court granted partial summary judgment in favor of Mrs. Gillespie, holding that the helicopter was being used for “the sole purpose of transportation,” and that the accident was not excluded by the aviation exclusion clause.

The second relevant clause provided for double indemnity if the decedent, at the time of his death, was “riding as a passenger in or on . . . a public conveyance provided by a common carrier for passenger service.” The fatal helicopter was provided by Anchorage Helicopter Service pursuant to a contract with AlYenCo, Gillespie’s employer. The contract provided that the helicopter was for the exclusive use of Al-VenCo for a minimum period of sixty days with extensions permissible for a period up to seven months.

Although Anchorage Helicopter Service provided the pilot, AlVenCo was obligated to provide fuel and lubrication for the aircraft and room and board for the pilot. Anchorage Helicopter Service had similar contractual arrangements with other customers, the price being charged for comparable equipment varying among the several customers.

In addition to this “contract” service, provided pursuant to a certificate of authority issued by the Alaska Transportation Commission, Anchorage Helicopter Service also operated an air taxi service for public use throughout Alaska. The taxi service was conducted pursuant to a second certificate of authority, and rates were required to be equal to or above the tariff rates filed with the Alaska Transportation Commission.

In the district court, Travelers argued that a helicopter under contract for the exclusive use of one customer for a period of two to seven months, subject to special conditions, is not a “public conveyance provided by a common carrier.” The district court ruled on a motion for summary judgment that the helicopter was “provided by a common carrier.” The question whether the helicopter was a “public conveyance” was submitted to the jury with an instruction that

the term public conveyance means a conveyance provided for the use of the public generally. Such a conveyance is used indiscriminately in carrying the public without limitation to certain persons or particular occasions or without being governed by special terms.

The jury was further instructed:

If you find that the phrase “public conveyance,” as used in the insurance policy, is ambiguous or uncertain, and requires interpretation because fairly susceptible of two or more different constructions, you are instructed to adopt the meaning of the phrase used that is more advantageous to the plaintiff.

The jury returned a verdict that the helicopter was a “public conveyance,” and judgment was entered in favor of Mrs. Gillespie.

On appeal, Travelers asserts that the district court erred in:

(1) permitting the jury to find that the helicopter was a “public conveyance,”

(2) instructing the jury that ambiguities must be resolved in favor of the plaintiff,

(3) ruling, on a motion for summary judgment, that the helicopter was “provided by a common carrier,” and

(4) ruling, on a motion for summary judgment, that the accident was not excluded from coverage by the aviation exclusion cause.

The interpretation of the meaning of words used in a contract is normally an issue of fact to be decided by the trier of fact rather than the court. Dobson v. Masonite Corp., 359 F.2d 921, 923 (5th Cir. 1966); Corbin on Contracts § 554; see Hartford Steam Boiler Inspection and Insurance Co. v. Schwartzman Packing Co., 423 F.2d 1170 (10th Cir. 1970). Thus, the meaning of words in a contract, as with any other issue of fact, should be decided by the court only in cases where reasonable minds could not differ as to interpretation of those words. In addition to this general rule of contract interpretation, we must apply Alaska’s rule that ambiguities in the meaning of insurance contracts are to be resolved in favor of the insured. Pepsi Cola Bottling Co. v. New Hampshire Insurance Co., 407 P.2d 1009 (Alaska 1965); Lumbermen’s Mutual Casualty Co. v. Continental Casualty Co., 387 P.2d 104 (Alaska 1963).

THE “PUBLIC CONVEYANCE” ISSUE

With this background, we turn to the district court’s rulings concerning the disputed portions of the insurance policy. Travelers contends that the undisputed facts do not permit a jury finding that the helicopter was a “public conveyance.” We agree. Giving the plaintiff the benefit of the Alaska rule that ambiguities are to be resolved in favor of the insured, the term “public conveyance” cannot be read to include the helicopter in which Mr. Gillespie was a passenger.

At a very minimum, the term “public conveyance” connotes an offering of the conveyance generally for public use. This helicopter was not. It was for the exclusive use of a specific client, AlVenCo, for a period of two to seven months. The jury’s finding that the helicopter was a “public conveyance” under these facts was not within the range of reasonable interpretations of which that phrase is susceptible. Therefore, the district court erred by permitting the jury to find in favor of Mrs. Gillespie on this issue.

To recover double indemnity, Mrs. Gillespie must prove that the helicopter was both a “public conveyance” and “provided by a common carrier.” In view of our holding that the helicopter was not a “public conveyance,” we need not decide whether the district court erred in holding that the helicopter was “provided by a common carrier.”

THE “TRANSPORTATION” ISSUE

Travelers’ final assignment of error is that the district court erred in ruling, on a motion for summary judgment, that the helicopter was being used for “the sole purpose of transportation,” and that the accident was, therefore, not excluded by the aviation exclusion clause.

Travelers contends that the helicopter may possibly have been engaged in aerial reconnaissance at the time of the accident. Even if we accept this contention, the district court correctly ruled that coverage was not excluded. It is only reasonable to include within the meaning of “transportation” the moving of an individual from a point on the ground to a vantage point above the ground. Aerial reconnaissance is included within such a definition.

Of course, “transportation” could also reasonably be interpreted to refer only to direct transportation from one point on the ground to another. What is clear, however, is that at least one reasonable interpretation of the phrase “for the sole purpose of transportation” exists which would permit Mrs. Gillespie to recover. Since Alaska law requires the adoption of the reasonable interpretation which favors the insured, there was nothing for the jury to decide. Thus, the district court was correct in ruling that the accident was not excluded by the aviation exclusion clause.

The district court’s judgment in favor of Mrs. Gillespie on the claim for double indemnity is reversed and remanded to the district court with instructions to enter judgment in favor of Travelers. The district court’s judgment in favor of Mrs. Gillespie on Travelers’ counterclaim to recover the single indemnity benefits previously paid is affirmed. No costs will be assessed on this appeal.

      . The question of whether an issue is to be decided by the judge or the jury in a diversity ease is properly decided by reference to federal rather than state law. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958).

      . Alaska’s rule that ambiguities be resolved in favor of the insured is a reflection of substantive state policy affecting the substantive rights and liabilities of the parties. It must, therefore, be followed by a federal court sitting in a diversity case under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).


author: MEHAFFY, Chief Judge.

text:
    Levon BROWN, Appellant, v. UNITED STATES of America et al., Appellees.
    No. 72-1328.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 8, 1972.
    Decided Oct. 29, 1973.

      John T. Lavey, Little Rock, Ark., for appellant.
    John A. Forster, Little Rock, Ark., for appellees. Love and Allen.
    Fletcher Jackson, Asst. U. S. Atty., Little Rock, Ark., for appellee United States.
    Before MEHAFFY, Chief Judge, and BRIGHT and STEPHENSON, Circuit Judges.
   MEHAFFY, Chief Judge.

This is an action for compensatory and punitive damages by a federal prisoner against the sheriff and head jailer of Pulaski County, Arkansas and against the federal government for injuries plaintiff received in two separate assaults by fellow inmates during plaintiff’s pretrial detention in the Pulaski County Jail. Recovery is sought against the sheriff and head jailer under 42 U.S.C. § 1983 and under a diversity tort claim. Recovery is sought against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. The district court denied recovery on all of plaintiff’s claims, primarily on the ground that plaintiff had failed to prove by a preponderance of the evidence that any of the defendants knew or reasonably should have known that there was any particular danger of inmate assaults upon plaintiff. Brown v. United States, 342 F.Supp. 987 (E.D. Ark.1972). Plaintiff appealed the judgment of the district court and the case was submitted for our decision in December 1972. Shortly thereafter the Supreme Court granted certiorari in a ease involving similar issues, Logue v. United States, 334 F.Supp. 322 (S.D.Tex.1971), rev’d, 459 F.2d 408 (5th Cir. 1972), cert, granted, 409 U.S. 1106, 93 S.Ct. 908, 34 L.Ed.2d 685 (1973). To avoid unnecessary conflict we stayed our decision in this case pending the outcome of Logue in the Supreme Court. The Supreme Court’s opinion in Logue has now been filed. 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973). After reviewing the Court’s opinion in Logue as well as the record in this controversy, we conclude that the judgment of the district court must be affirmed except insofar as it denies recovery against the federal government for its own negligence.

The factual background of this dispute is set out in detail in the opinion of the district court and will be summarized only briefly here. In January 1969 plaintiff was committed by federal marshals to the custody of the Pulaski County Jail to await trial on federal criminal charges in the Eastern District of Arkansas. This pretrial detention of a federal prisoner in a local facility was pursuant to a contract between the Federal Bureau of Prisons and Pulaski County under the authority of 18 U.S.C. § 4002 and Ark.Stat.Ann. § 46-409. During his pretrial incarceration plaintiff was assaulted twice by fellow prisoners. Plaintiff claims that these assaults gave rise to four separate causes of action:

1) a diversity claim under Arkansas tort law against the sheriff and head jailer for negligence;

2) a civil rights claim under 42 U.S.C. § 1983 against the sheriff and head jailer by analogy to the tort claim;

3) a Federal Tort Claims Act action against the federal government on the theory that the United States is vicariously liable for the acts or omissions of the sheriff and head jailer; and

4) a Federal Tort Claims Act claim against the United States for its own negligence in entering into the contract and/or placing plaintiff in an inadequate facility.

Two of these causes of action can be dispensed with summarily. First, the district court held that the diversity claim against the sheriff and head jailer was barred by the applicable Arkansas statute of limitations, Ark. Stat.Ann. § 37-203. We agree, and we affirm this holding on the basis of the district court’s opinion. Second, plaintiff’s claim under the Federal Tort Claims Act on the basis of vicarious liability is clearly foreclosed by the Supreme Court’s holding in Logue v. United States, supra, that the United States is not liable under the FTCA for the negligence of its independent contractors. Plaintiff’s remaining causes of action require somewhat closer scrutiny.

1983

Section 1983 provides a civil remedy for any person who is deprived of a federally secured right by an individual acting under color of state law. Although the statute was enacted during Reconstruction its widespread use is an occurrence of relatively recent vintage. A major factor in the modern development of § 1983 was the Supreme Court’s holding in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that “[s]ection [1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Id. at 187, 81 S.Ct. at 484. In the ease before us today plaintiff would have us read § 1983 against the background of tort liability that makes a jailer liable for his negligent failure to protect a prisoner from assaults by other prisoners.

We recognize, of course, that most jurisdictions do impose tort liability upon jailers who negligently fail to protect their prisoners adequately. E. g., An-not. 41 A.L.R.3d 1021 (1972); Restatement (Second) Torts, § 320. This duty to exercise reasonable care stems not only from the fact that a prisoner is deprived of most of his means of self-defense but also from the fact that he is involuntarily exposed to association with individuals who may be peculiarly prone to physically assaultive conduct. We are not at all certain, however, that § 1983 incorporates en toto this particular theory of tort liability. Even if we assume that freedom from reasonably preventible inmate assaults is a federally secured right, we are extremely hesitant to hold that mere simple negligence can be the basis of personal liability under § 1983. See Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L.Ed.2d 288 (1967).

Having stated our misgivings about plaintiff’s theory under § 1983, we find it unnecessary to decide his claim on this point. Even if we assume that mere simple negligence on the part of the sheriff and head jailer is actionable under § 1983, we must agree with the district court that plaintiff failed to prove the essential elements of his case.

The gist of plaintiff’s proof in the district court was that the Pulaski County Jail was woefully understaffed and overcrowded. Certainly the conditions of that institution are no stranger to this court, see Hamilton v. Love, 328 F.Supp. 1182 (E.D.Ark.1971), and it would be facile to suggest that those inadequacies had no causal connection with the inmate assaults plaintiff suffered. The inadequacies of the Pulaski County Jail shown by the plaintiff, however, were not attributable to any personal act or omission of the sheriff or head jailer. Both men were under a statutory as well as a contractual duty to accept all prisoners offered for custody. Given the limited means and facility they had at their disposal it appears that both the sheriff and the head jailer exercised all care one could reasonably expect of them in providing for the protection of their prisoners. As has already been noted elsewhere, the exercise of reasonable care in the administration of an admittedly inadequate facility is no defense to a § 1983 action for injunc-tive relief against the appropriate officials in their official capacities. Hamilton v. Love, supra,, at 1194. But to render these officials personally liable in damages we feel some personal fault on the part of the individuals must be demonstrated. Plaintiff presented no substantial evidence to show that the individual defendants failed to exercise reasonable care in their personal capacities in providing for plaintiff’s safekeeping. In the absence of such a showing there can be no recovery, even under plaintiff’s theory of negligence, against the sheriff and head jailer personally.

The Federal Tort Claims Act

Plaintiff’s cause of action against the United States for its own negligence presents a more difficult question than that presented by his § 1983 claim. Two key factors distinguish the position of the federal government from the position of the sheriff and head jailer. First, unlike § 1983, it is clear that the Federal Tort Claims Act does render the United States answerable in damages for the simple negligence of its employees in failing to protect federal prisoners. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). Secondly, unlike the sheriff and head jailer, the United States was under no obligation to place the plaintiff in the Pulaski County Jail during his pretrial detention.

The gist of plaintiff’s claim against the United States is that the government negligently breached its duty to exercise reasonable care in providing for plaintiff’s safety by placing him in a facility that it knew or reasonably should have known was so inadequate that he could not be adequately protected from the foreseeable risk of assaults by fellow prisoners. The district court accepted plaintiff’s theory of liability but denied recovery on the ground that plaintiff had failed to prove that the federal government knew or reasonably should have known of the conditions in the Pulaski County Jail. We disagree with this finding of fact and reverse it as clearly erroneous.

The record clearly reflects that the inadequacies of the jail were not a sudden development. The record also reflects that the inadequacies of the institution, especially the understaffing and overcrowding had been a long-standing source of criticism from the Pulaski County grand juries. The record also reflects that inspectors from the Federal Bureau of Prisons regularly inspected the facilities. Defendant Allen, the head jailer, personally testified that he complained about the understaffing and overcrowding not only to the federal inspectors but also to the United States marshals and “to everybody we know about . . . , and so has the sheriff.” Transcript at 43-4, 47. Furthermore, a member of the United States marshal’s staff in the Eastern District of Arkansas grudgingly conceded that he knew of the local grand jury criticism and of the basis of that criticism:

“A. [Marshal Powell] The facilities at that jail are bad.
“Q. [by plaintiff’s counsel] And you knew that?
“A. I knew that.
“Q. And also, didn’t you know it was overpopulated ?
“A. I knew that.
“Q. You knew that it was understaffed?
“A. I knew that.

Transcript at 162.

In the face of this record it is impossible to escape the conclusion that the federal government knew or reasonably should have known of the inadequate conditions in the Pulaski County Jail. We must therefore reverse the judgment of the district court insofar as it denied recovery for the federal government’s own negligence.

On remand it will be necessary for the district court to consider and decide one or more of three separate questions. First, as the district court properly noted, plaintiff’s cause of action under the Federal Tort Claims Act is confronted by a very serious obstacle in the form of the discretionary function exception, 28 U.S.C. § 2680(a). See 342 F.Supp. at 996. Secondly, there is at least some doubt about whether or not the negligence of the federal government was so remote from the incidents in which plaintiff was injured as to destroy any proximately causal connection. Third, assuming the district court decides in plaintiff’s favor on the above two issues, the court will have to compute what damages, nominal or actual, plaintiff is entitled to receive. Our comments outlining the questions on remand, of course, are merely suggestive and should not be construed as indicating any attitude on the part of this court regarding the proper resolution of the issues.

The judgment of the district court is affirmed insofar as it denies recovery against the sheriff and the head jailer, either individually or in their official capacities. The judgment of the district court is also affirmed insofar as it denies recovery against the United States on the theory of imputed negligence. The judgment of the district court is reversed insofar as it denies recovery against the United States for its own negligence, and the cause is remanded for further proceedings consistent with thig opinion.

      . Plaintiff also seeks recovery for the injuries he allegedly received when he was exposed to tear gas. The district court found that the use of tear gas was reasonable and justified. We summarily affirm the judgment below regarding this point on the basis of the district court’s opinion.

      . The individual defendants have also raised a statute of limitations defense with respect to the § 1983 claim against them. The district court expressly avoided this issue. 342 F.Supp. at 995. In light of the apparent confusion in our recent decisions regarding the statute of limitations defense in § 1983 actions, compare Glasscoe v. Howell, 431 F. 2d 863 (8th Cir. 1970) with Johnson v. Dailey, 479 F.2d 86 (8th Cir. 1973), we follow the district court’s lead. Our brief discussion of the state statute of limitations issue is not intended in any way to express any opinion on our part regarding the limitations defense to § 1983.

      . The district court’s findings of fact made it clear that the overcrowding and understaff-ing had made it virtually impossible to protect detainees from inmate assaults:
      “To put the matter bluntly, the prisoners on the second floor [where plaintiff was housed] were simply left to their own devices, and there were no effective means of communication between the second and first floors [where the so-called free-world staff was stationed] whereby assistance could readily be summoned above.” 342 F.Supp. at 996.

      . To the extent that the sheriff and jailer may have had a duty to do something more than administer an inadequate facility as best they could, we find that they discharged that duty. The record reflects that both the sheriff and head jailer complained repeatedly about the inadequacies and made good faith affirmative efforts to secure the means necessary to relieve the crowded and understaffed conditions.

      . Punitive damages are not available under the FTCA. 28 U.S.C. § 2674; Hatahley v. United States, 351 U.S. 173, 182, 76 S.Ct. 745, 100 L.Ed. 1065 (1956).