author: CLARK, Circuit Judge:

text:
    Leon JOHNSON, Plaintiff-Appellee, v. R. J. GREER, Defendant-Appellant.
    No. 72-2541.
    United States Court of Appeals, Fifth Circuit.
    April 2, 1973.
    Rehearing Denied April 24, 1973.

      James Greenwood, III, Houston, Tex., for defendant-appellant.
    John K. Meyer, Houston, Tex., for plaintiff-appellee.
    Before ALDRICH, SIMPSON .and CLARK, Circuit Judges.

       Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   CLARK, Circuit Judge:

Johnson brought this action under 42 U.S.C. § 1983, contending that Greer, as Administrator of the Psychiatric Diagnostic Clinic, falsely imprisoned him and thereby denied him his constitutional right to liberty and due process of law. Johnson sought damages for deprivation of freedom and for a shoulder injury suffered when orderlies attempted to administer medication to Johnson while he was detained at the Clinic. The jury found for Johnson on most of the Fed.R.Civ.P. 49(a) special verdict issues submitted to them, separately assessing the damages for false imprisonment at 700 dollars and the damages resulting from the shoulder injury at 11,300 dollars. Judgment accordingly was entered. There is an adequate basis in law and in record proof to support the finding of false imprisonment. However, the jury was given ah improper test to use in determining if Johnson’s shoulder injury was a proximate result of such false imprisonment. We therefore affirm in part, vacate in part, and remand for a new trial as to all damage verdicts.

Although the exact details of the preliminary encounter are unclear, Johnson either volunteered himself or was taken into the custody of the police complaining of hearing voices and music which were in fact imaginary. It further appears that he requested the police officers to lock him up somewhere where he would not hear the voices and music. These officials placed him in a cell where he was examined by a psychiatrist who concluded that he was suffering from toxic delirium. On the basis of this examination and diagnosis, the police procured an emergency protective custody warrant from a Justice of the Peace. Pursuant to that warrant Johnson was admitted to the Clinic which Greer administers. Under Texas statutes, which supplied Greer’s whole authority to take Johnson into custody, Johnson could have been detained under this emergency warrant for a period not to exceed 24 hours. After the expiration of 24 hours further necessary detention could have been authorized by an order of the appropriate court. Though Johnson was ultimately detained for approximately five consecutive days, no further order from any court was obtained during that period.

We find no merit in Greer’s contention that Johnson was not unlawfully detained at the Clinic. After the 24-hour detainment authorized by the initial warrant had expired, Greer was under an obligation either to seek authorization from the Texas courts to detain Johnson for a further period of time, as required by the Texas statute, or to release him. While it may well be that Greer had the right to detain Johnson for a reasonable period of time to obtain the necessary court order, the jury found in response to a special verdict question that his delay in procuring the warrant became unreasonable at a time 24 hours after his initial authorization to retain Johnson had expired (i. e., after Johnson had been detained for a total of 48 hours).

Since it is admitted that Greer was acting “under color of law” as Administrator of the Clinic, his actions in depriving Johnson of his constitutional right to liberty provide ample basis for this action under 42 U.S.C. § 1983. See Dowsey v. Wilkins, 467 F.2d 1022 (5th Cir. 1972); Whirl v. Kern, 407 F.2d 781 (5th Cir. 1972), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969).

Our jurisdiction in this action is to be exercised under the statutory and decisional laws of the United States “so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies” the laws of Texas shall govern. 42 U.S.C. § 1988. Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946). See also Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969) and Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961). We see no deficit in the federal law as to efficacy or remedy and base our decision accordingly.

It is no defense to this action that Greer may have intended only to protect Johnson and others from possible injury.

[G]ood intentions which do not give rise to a reasonable belief that deten-* tion is lawfully required cannot justify false imprisonment whether the action is founded in tort or under Section 1983. ... As a corollary, the plaintiff need not show malice or ill-will to prove his action under Section 1983. All that is required is that he demonstrate state action which amounts to an actual deprivation of Constitutional rights or other rights guaranteed by law.

Dowsey v. Wilkins, supra, 467 F.2d at 1025. Rather than adhering to the statutory procedure and obtaining a court order to detain Johnson, Greer failed to even attempt to follow the provisions of that law intended to protect the rights and liberty of those who are or are thought to be mentally ill. We affirm the judgment of the court below insofar as it adjudged Greer liable to Johnson for false imprisonment. However, because of the ultimate disposition of the case, we vacate the portion of the final judgment assessing damages for this wrong and remand that issue for retrial.

The more difficult question in this case is that of Greer’s responsibility for the injuries suffered by Johnson during his confinement. Well after the expiration of the 48 hour period of reasonable detention found by the jury, Johnson was injured in an altercation with two orderlies at the Clinic. During this incident, which apparently occurred when Johnson irrationally resisted the administration of medication, he received the shoulder injuries of which he complains.

On this appeal Greer contends that even if he was guilty of falsely imprisoning Johnson, such imprisonment was not a proximate cause of Johnson’s shoulder injury. Casting his argument in terms of foreseeability, as he did in his objection to the instruction given by the court below, he argues that no reasonable man could have anticipated that physical injury would be a proximate result of Johnson’s imprisonment. This was not the legal standard which governed this phase of the case in the trial court. The only formula which the jury instruction fixed for testing Greer’s liability for Johnson’s shoulder injury was the following:

An injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.
This does not mean that the law recognizes only one proximate cause of an injury or damage, consisting of only one factor or thing, or the conduct of only one person. On the contrary, many factors or things, or the conduct of two or more persons, may operate at the same time, either independently or together, to cause injury or damage; and in such a case, each may be a proximate cause.

Thus that court evidently agreed with those courts and treatises which indicate that the tort feasor in a false imprisonment action may be liable for damages which are not anticipated, apprehended or foreseen, so long as they are natural and probable or direct .consequences of the intentional tort. While requiring the consequences to be “reasonably probable” or the result to be “direct” may have been intended as no more than another means of expressing foreseeability, we hold that this instruction erroneously advised the jury as to the standard of causal relationship between action and injury which would establish the defendant’s liability.

In Whirl v. Kern, supra, this court noted in dealing with a Section 1983 action and a pendent state false imprisonment claim that the injury must be proximately related to the wrong, 407 F.2d at 797, and in Anderson v. Nosser, 456 F.2d 835, 841 (5th Cir. 1972) (en banc) the court applied a test of foreseeability in a Section 1983 action founded on the imposition of summary punishment without due process of law. Neither of these eases, however, focused on the proper rule to be applied in determining whether the injury was proximately related to the wrong or a foreseeable consequence thereof. Thus, we look for guidance to “the prevailing view [of tort law] in this country” in determining the proper federal rule to apply to this case. Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L. Ed.2d 288 (1967); Whirl v. Kern, supra, 407 F.2d at 791.

In detailing our reasoning to the answer to the basic question — for what injuries should such a tort feasor be held responsible — we will not attempt to reconcile all of the varying judicial pronouncements on the subject, which differ more in semantics than in substance. The best start for an exposition of our reasoning is with this excerpt from a leading text writer:

The term “proximate cause” is applied by the courts to those more or less undefined considerations which limit liability even where the fact of causation is clearly established. The word “proximate” . . . means nothing more than near or immediate; and when it was first taken up by the courts it had connotations of proximity in time and space which have long since disappeared. It is an unfortunate word, which places an entirely wrong emphasis upon the factor of physical or mechanical closeness. For this reason “legal cause” or perhaps even “responsible cause” would be a more appropriate term.
* * * * * *
It is quite possible, and often helpful, to state every question which arises in connection with “proximate cause” in the form of a single question: was the defendant under a duty to protect the plaintiff against the event which did in fact occur? Such a form of statement does not, of course, provide any answer to the question, or solve anything whatever; but it does serve to direct attention to the policy issues which determine the extent of the original obligation and of its continuance, rather than to the mechanical sequence of events which goes to make up causation in fact. The question becomes particularly helpful in cases where the [question is] ... whether the interests of the plaintiff are entitled to legal protection at the defendant’s hands against the invasion which has in fact occurred. Or, again reverting, whether the conduct is the “proximate cause” of the result. The circumlocution is unavoidable, since all of these questions are, in reality, one and the same.
W. Prosser, Law of Torts 282-83 (1964) (footnotes omitted).

We focus our opinion not on the metaphysical “but for” sequence of events preceding Johnson’s injury but rather on the question of whether the principles of logic, fairness, and justice dictate the defendant should be held liable in a given situation. The cases are in accord that even a willful or intentional tort feasor does not become an insurer of the safety of those whom he has wronged. For example, if the Clinic had been destroyed by an earthquake, no one could rationally contend Greer should be liable for injuries befalling Johnson. On the other hand, the courts have generally held that where the acts of a defendant constitute an intentional tort or reckless misconduct, as distinguished from mere negligence, the aggravated nature of his action is a matter which should be taken into account in determining whether there is a sufficient relationship between the wrong and plaintiff’s harm to render the actor liable. Specifically, the factors to be taken into account are the tort feasor’s intention to commit a wrongful act, the degree of his moral wrong in so acting, and the seriousness of the harm intended. See Restatement of Torts, Second, § 435B; Prosser, supra, at 302. The touchstone for deciding the scope of the defendant’s liability in a false imprisonment action properly brought under a federal statute is the intent and object of the officer in detaining the plaintiff. While, as we have iterated, mere good intentions do not in themselves create a defense to the action, see Dowsey v. Wilkins, supra, justice, fairness, and sound policy coalesce to indicate that an officer acting under color of law without malice or bad intent should be liable only for those injuries which an ordinarily prudent man would reasonably foresee would result from his actions. On the other hand, officers acting with malice or bad intent ought additionally to be held responsible for those injuries which have a more attenuated causal relationship to their willful misconduct. Thus, in a false imprisonment action brought under Section 1983, the tort feasor acting under color of law with malice or bad intent must be held responsible for all injuries which could have been prevented by the exercise of the utmost caution characteristic of very careful men, though even he remains insulated from injuries caused by wholly unforeseen accidents occurring without his agency. Nor is he responsible for injuries against which no human care or foresight could guard and which are not caused in any degree by his gross neglect or intentional conduct. '

In addition to this objection based on the role of foreseeability in the definition of proximate cause, Greer directs another argument at the district court’s instruction quoted above. The jury found that Johnson’s physical injuries were proximately caused by his unlawful detention at the Clinic. The jury also found, however, that Johnson was mentally ill and was likely to cause injury to himself or others unless restrained. Though these two responses are not necessarily inconsistent, Greer urges that together they serve to point up a serious flaw in the court’s instructions. Greer contends that there was no finding by the jury and no evidence on which any finding could be based that his actions in any way increased the already existing risk of injury that Johnson’s mental state was causing.

Neither the bare fact that Johnson was injured while in Greer’s care, nor the fact that it was foreseeable that some injury might occur during the hospitalization of a person who is disoriented and experiencing hallucinations, are sufficient to affix tort liability for an otherwise unintentional injury in the circumstances present here.

The correct rule of law to be applied to this case is indicated by analogy in the Restatement of Torts, Section 870.

A person who does any tortious act for the purpose of causing harm to another or to his things or to the pecuniary interest of another, is liable to the other for such harm if it results, except where the harm results from an outside force the risk of which is not increased by the defendant’s act. [Emphasis added.]

Comment “g” to that section amplifies this rule.

Even where the defendant’s act is in fact a cause of harm, in the sense that the harm would not otherwise have occurred, he is not liable to a person whom he intended to harm and who has been harmed, unless from the standpoint of a reasonable man, his. act has in some degree increased the risk of that harm.

Though this section of the Restatement deals expressly with the necessary causal relationship between an intentional wrong and a resulting intended injury, a fortiori the principle applies where, as here, an unintended injury results from an intentional tort. The causal standard for liability for unintended injuries certainly should be no stricter than that applied in situations where the particular harm is intended.

In light of the jury’s finding that Johnson was liable to injure himself and others unless restrained, the trial court’s instruction which defined the conditions of Greer’s liability for injury is defective in that it didn’t charge that the jury was required to determine whether Greer’s actions increased the risk of injury. Greer could only be held liable if, using whatever standard of care he was bound to use, it was reasonably foreseeable that his action of improperly holding Johnson at the Clinic during his period of hallucinations would increase the risk of danger to Johnson. The evidence is such that a reasonable minded juror could have found that since Johnson was likely to hurt himself or others because of his condition, the risks associated with confinement at the Clinic did not increase Johnson’s hazard of harm. Under the. Seventh Amendment Greer is entitled to have this issue of fact determined by a jury as a prerequisite to the imposition of liability for this injury.

In other circumstances, the flexible and illuminating special verdict procedure followed here might also have allowed us to safely affirm the damage award with respect to false imprisonment and leave only the shoulder injury issues for retrial. However, the only sure course to preserve the jury process for both parties demands that the false imprisonment damage issue be also resubmitted since its amount could well be varied by the ultimate result of what is found as to the injury, i. e., should the jury conclude that Greer’s actions were such that he should not be held liable for Johnson’s shoulder injury or that Johnson’s risk of physical harm was not increased by the detention, they well may determine that the amount of damages to be awarded on account of the detention alone should be altered.

Affirmed in part, vacated in part, and remanded.

      . Vernon’s Tex.Rev.Civ.Stat.Ann. art. 5547-27 (Supp.1972).

       Vernon’s Tex.Rev.Civ.Stat.Ann. art. 5547-66 (1958).


source: Caselaw Access Project

author: BROWNING, Circuit Judge:

license: Public Domain

text:
    Lourdes CABUCO-FLORES, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Genevieve L. MANGABAT, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
    Nos. 72-1333, 72-1818.
    United States Court of Appeals, Ninth Circuit.
    April 13, 1973.

      George Haverstick (argued), San Diego, Cal., for petitioner.
    Charles Gordon, Asst. Atty. Gen. (argued), Crim. Div., Dept. of Justice, Washington, D. C., Harry D. Steward, U. S. Atty., Robert H. Filsinger, Asst. U. S. Atty., San Diego, Cal., Joseph Surreck, Regional Counsel, I&NS, San Pedro, Cal., Stephen Suffin, I&NS, San Francisco, Cal., for respondent.
    Before BROWNING, HUFSTEDLER, and WALLACE, Circuit Judges.
   BROWNING, Circuit Judge:

These petitions for review raise a common question under section 241(f) of the Immigration and Nationality Act, 8 U.S.C. § 1251(f), an ameliorative statute providing that in some circumstances fraud or misrepresentation by an entering alien who has close family ties with a citizen or lawfully admitted permanent resident may be waived as a ground for deportation. The issue is whether section 241(f) applies to deportation of a temporary visitor on the ground that the visitor has overstayed the period authorized. We hold that it does not.

Both petitioners are aliens, citizens of the Philippine Islands. Each entered the United States as a nonimmigrant visitor for a stipulated period. After entry, each bore a child, a United States citizen by birth. Deportation proceedings were commenced against each on the ground that she had remained longer than permitted by her visa, and was therefore deportable under section 241(a) (2) of the Act, 8 U.S.C. § 1251(a) (2). Each defended on the ground that she was saved from deportation by section 241(f) because when she applied for her visitor’s visa she fraudulently concealed an intention to remain in the United States permanently.

The Board of Immigration Appeals rejected the defense as to petitioner Mangabat on the ground that section 241(f) applies only to persons who enter as immigrants and not to those who enter as nonimmigrants. The Board rejected the defense as to petitioner Cabuco-Flores on the ground that her testimony established that she intended to remain permanently only if she could do so lawfully and thus failed to establish the requisite fraud.

We sustain the deportation orders on another ground, namely, that the charge of remaining after the expiration of the period permitted by each petitioner’s visitor’s visa was not waived by section 241(f) because it did not depend directly or indirectly upon the asserted misrepresentation in obtaining the visa.

Literally, section 241(f) waives deportation of aliens only “on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation,” in violation of section 212(a) (19), 8 U. S.C. § 1182(a) (19). The Supreme Court rejected a literal reading of section 241(f) in Immigration Service v. Errico, 385 U.S. 214, 217. 87 S.Ct. 473, 476, 17 L.Ed.2d 318 (1966), noting that by consistent administrative interpretation the section “waives any deportation charge that results directly from the misrepresentation regardless of the section of the statute under which the charge was brought” (emphasis added).

Thus, while not limited to the single ground for deportation found in section 212(a) (19), section 241(f) is properly invoked only when the fraud is “germane to the charge” upon which deportation is sought, Muslemi v. Immigration & Naturalization Service, 408 F.2d 1196, 1198 (9th Cir. 1969) (see also Hames-Herrera v. Rosenberg, 463 F.2d 451, 454 (9th Cir. 1972); Jolley v. Immigration & Naturalization Service, 441 F.2d 1245, 1251-1252, 1254 (5th Cir. 1971); Loos v. Immigration & Naturalization Service, 407 F.2d 651, 654 (7th Cir. 1969); Tsaconas v. Immigration & Naturalization Service, 397 F.2d 946 (7th Cir. 1968)), and the charge relates to entry. Hames-Herrera v. Rosenberg, supra; Khadjenouri v. Immigration & Naturalization Service, 460 F.2d 461, 462 (9th Cir. 1972); Ferrante v. Immigration & Naturalization Service, 399 F.2d 98, 104 (6th Cir. 1968); Tsaconas v. Immigration & Naturalization Service, supra.

Section 241(f) applies only to that fraud or misrepresentation which the government must prove to establish the ground relied upon for deportation; in some circumstances it excuses such fraud. It does not make the alien’s fraud an affirmative defense, independently exculpatory without regard to the proof required to establish the ground for deportability relied upon by the government.

In these cases petitioners were ordered deported because the period of their authorized temporary stays had expired. The government’s case was completed upon proof that petitioners were admitted as nonimmigrant visitors for a temporary period, the period had elapsed, and petitioners had not departed. The charge had nothing to do with petitioners’ entry; lawfulness of their entry was assumed. Proof that petitioners’ visas were procured by fraud was irrelevant to the charge. Giving full effect to the section 241(f) waiver, the government’s proof of the ground relied upon for deportation was unimpaired. Accordingly, the orders of deportation are not barred by section 241(f).

This interpretation is consistent with the section’s language. It is also in harmony with the section’s purpose, for Congress intended no more than to grant relief to aliens “facing exclusion or deportation because they had gained entry through misrepresentation.” Immigration Service v. Errico, supra, 385 U.S. at 220-221, 87 S.Ct. at 478. It avoids the anomalous consequence that an alien may escape deportation simply by “substituí [ing] for his own convenience a ground not involved in the deportation proceedings.” Ntovas v. Ahrens, 276 F.2d 483, 484 (7th Cir. 1960). See also Tsaconas v. Immigration & Naturalization Service, supra, 397 F.2d 946, 948. It avoids the constitutional question raised by petitioner Cabuco-Flores, who points out that if section 241(f) is held to apply, but the factual determination of the Board in her case is upheld, petitioner Mangabat will be allowed to remain in this country, while petitioner Cabuco-Flores, whose situation is in all respects the same except that she did not enter with a fraudulent intent, will be deported.

This construction averts the wholesale frustration of statutory limitations on immigration foreseen by the government, which suggests that a fraudulent intent to remain cannot be detected at the time of entry, nor disproved during a deportation proceeding.

Finally, this construction limits the impact of the apparent inconsistency between section 241(f)’s automatic waiver where fraud is involved, and the severely limited conditions under which aliens having close family ties in the United States can be relieved of various other grounds of deportation. See section 244 of the Act, 8 U.S.C. § 1254; section 212(e), 8 U.S.C. § 1182(e); section 212(h), 8 U.S.C. § 1182(h).

The holding of Muslemi v. Immigration & Naturalization Service, supra, is not to the contrary, and, as suggested earlier, its rationale supports the result we reach here. Muslemi was not charged with overstaying; indeed, he was notified that deportation proceedings were to be instituted against him one day before his temporary visa expired. 408 F.2d at 1198. Deportation was sought on the ground that he had entered without an immigrant visa and was therefore excludable under section 212(a) (20), 8 U.S.C. § 1182(a) (20), and deportable under section 241(a)(1), 8 U.S.C. § 1251(a)(1). 408 F.2d at 1197. To prove its charge, the government was required to establish that Muslemi entered the United States as an immigrant, that is, as one who intended to remain in this country permanently. The government was required to prove that Muslemi had obtained his temporary visitor’s visa by fraudulently misrepresenting his intentions. Thus, the “misrepresentation was germane to the deportation charge” (408 F.2d at 1199) — waiver of the fraud barred proof essential to that charge.

The rule we adopt is also consistent with Lee Fook Chuey v. Immigration & Naturalization Service, 439 F.2d 244 (9th Cir. 1971). Lee Fook Chuey entered the United States under a false claim of citizenship derived from his father. He was ordered deported on the charge that he was an alien, who entered without inspection in violation of section 241(a)(2), 8 U.S.C. § 1251(a)(2). Obviously, proof of this charge required the government to establish that petitioner’s claim of citizenship was false. Section 241(f) was therefore determinative.

However, Vitales v. Immigration & Naturalization Service, 443 F.2d 343 (9th Cir. 1971), cannot be reconciled with our present holding: Section 241(f) was held to bar Vitales’ deportation on the' ground that she had overstayed the period permitted by a nonimmigrant visitor’s visa obtained by fraudulently concealing an intention to remain in this country permanently.

The Supreme Court granted certiorari in Vitales. 404 U.S. 983, 92 S.Ct. 450, 30 L.Ed.2d 366 (1971). Thereafter, petitioner left the country voluntarily. The Supreme Court vacated the judgment of this court, and remanded with instructions to dismiss the petition. 405 U.S. 983, 92 S.Ct. 1245, 31 L.Ed.2d 449 (1972). This court’s decision in Vitales is therefore no longer binding precedent. See United States v. Munsingwear, Inc., 340 U.S. 36, 39-41, 71 S.Ct. 104, 95 L.Ed. 36 (1950).

The orders of the Board are affirmed.

      . Section 241(f) of the Act, 8 U.S.C. § 1251 (f) reads:
      The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.

      . See Bong Youn Choy v. Barber, 279 F.2d 642, 645-646 (9th Cir. 1960).

      . “The statutory waiver excuses charges which are incidental to the misrepresentation, such as perjury, improper quota charge, entry without inspection, and lack of proper documents (when waiver can be simultaneously granted). However, the mere fact that the alien claims to have made a misrepresentation at the time of entry does not excuse him from deportation validly ordered on another charge, not related to the misrepresentation” (footnotes omitted). Gordon & Rosenfield, Immigration Law & Procedure § 4.7c, 4-41.

        See also Ntovas v. Ahrens, 276 F.2d 483, 484 (7th Cir. 1960) (decided under § 7 of the 1957 Act). See note 5.

      . See also Rutledge v. Esperdy, 200 F.Supp. 231 (S.D.N.Y.1961), affirmed on the basis of district court’s opinion 297 F.2d 532 (2d Cir. 1961), decided under § 7 of the 1957 Act. See note 5.

      . The Court was referring to § 7 of the 1957 Act, Pub.Law 85-316, 71 Stat. 639. “The present § 241(f) is essentially a re-enactment of § 7 of the 1957 Act. The legislative history leaves no doubt that no substantive change in the section was intended.” Immigration Service v. Errico, 385 U.S. 214, 223, 87 S.Ct. 473, 479, 17 L.Ed.2d 318 (1966).

      . In view of the dictum to the contrary in Chung Wook Myung v. Immigration & Naturalization Service, 468 F.2d 627, 628 n. 1 (9th Cir. 1972), this opinion has been circulated to all the active members of the court. No judge has requested that the case be heard in bane.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Willie SANDERS, Defendant-Appellant.
    No. 72-3608
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 6, 1973.
    Clayte Binion, III, Fort Worth, Tex., court-appointed, for defendant-appellant.
    Frank D. McCown, U. S. Atty., W. E. Smith, Asst. U. S. Atty., Fort Worth, Tex., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

The sole question in this appeal is whether Appellant’s Fourth and Sixth Amendment rights were violated by admission into evidence against him a palmprint taken while he was legally in the custody of law enforcement officers on another matter, but after he had requested counsel before further questioning on this matter. We think not and therefore affirm the lower court’s decision.

The record reveals, and Appellant admits, that he was legally in the custody of law enforcement officials stemming from arrest on another unrelated matter. It is undisputed, then, that the custodial officers were well within their authority, and not without Appellant’s rights, to require that he submit to fingerprinting independent of the presence or absence of warnings to accused of his rights to counsel and to remain silent. United States v. Gibson, 5 Cir., 1971, 444 F.2d 275. Neither can it be argued that the Fourth Amendment erected any obstacle to the taking Appellant’s fingerprint exemplars under the facts present here. The obtaining of physical evidence from a person involved a potential Fourth Amendment violation at two different levels — the “seizure” of the “person” necessary to bring him into contact with government agents and the subsequent search for and seizure of the evidence. United States v. Dionisio, 1973, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed. 67. Here the fact Appellant was legally under arrest at the time his palmprint exemplar was taken removes the first level of potential Fourth Amendment infringement. As for the second level, the Supreme Court noted in Davis v. Mississippi, 1969, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, that while the seizure of the person is clearly subject to Fourth Amendment “reasonableness”, the taking of physical evidence in the nature of fingerprinting, or as here palmprints, “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.”

Appellant, upon being apprised of his constitutional rights, properly invoked his Sixth Amendment right to have counsel present before further questioning. The record shows that the interrogation ceased at that point. The taking of Appellant’s palmprints in the absence of counsel did not violate his constitutional rights. We have written that “the taking of the fingerprints exemplar is not such a critical stage of the criminal proceedings as would entitle appellant to the assistance of counsel.” Pearson v. United States, 5 Cir., 1968, 389 F.2d 684, 686. Furthermore, we think the present appeal analogous to one heard by the D.C. Circuit where they wrote that “[N]ot only is .the taking of the exemplars not a critical stage of the proceedings entitling an accused to the assistance of counsel, but appellant has pointed to no function counsel could perform, were he present, save the futile advice not to give the sample.” Lewis v. United States, 1967, 127 U.S.App.D.C. 269, 382 F.2d 817, 819.

The trial court did not err in admitting into evidence Appellant’s palmprint. There it ends.

Affirmed.


text:
    Leo P. McCURNIN, Jr., Plaintiff-Appellee, v. KOHLMEYER & COMPANY and Jack D. Drake, Defendants-Appellants.
    No. 72-3175
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 13, 1973.

      See also D.C., 340 F.Supp. 1338.
    Charles Kohlmeyer, Jr., Earl S. Eichin, Jr., New Orleans, La., for defendants-appellants.
    Peter G. Burke, Paul M. Haygood, New Orleans, La., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, GOLDBERG and MORGAN, Circuit Judges.

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

   PER CURIAM:

Federal jurisdiction over this case initially was grounded upon a joinder of claims arising under the Commodities Exchange Act, the Securities Act of 1933 and the Securities Exchange Act of 1934 with a diversity claim arising under the Louisiana law of agency. The trial court below determined that none of the customer’s (Appellee) federal claims had merit, but, it asserted pendent jurisdiction over the state claim and proceeded to find that the customer was entitled to recovery from the broker (Appellant) under prevailing Louisiana law. We affirm.

The dispute between the parties arose out of trading in the commodity market by McCurnin, the customer. The broker, Kohlmeyer and Company, through its employee Drake, also a co-Appellant, purchased cotton futures for customer at a price in excess of that authorized. He suffered a net loss in the transaction of $26,725.

Upon learning of the unauthorized purchase McCurnin did not immediately and affirmatively repudiate the transaction, at least not by clear and unambiguous conduct. A period of three days elapsed before his market position was liquidated and thus before the full extent of the loss was realized. The broker contends that the customer’s delay and.his accompanying conduct subsequent to learning of the unauthorized purchase clearly manifested his intention to ratify the purchase and, furthermore, this delay was violative of his duty to mitigate damages.

The trial court, in a thorough and well reasoned opinion, 347 F.Supp. 573, rejected these arguments. The Judge found that the broker’s conduct was violative of two codal Articles of the Louisiana Law of Mandate, La. Civil Code Articles 3010 and 3003.

In response to the contention that the customer ratified, the trial Judge wrote:

“The conclusion that McCurnin failed to repudiate is mistaken. McCurnin had manifested his displeasure to Drake. He had been informed — misinformed — by Drake that there was nothing he could do but complete the transaction. It is true that Drake’s optimism about the market had made both McCurnin and Drake sanguine that all might turn out well, but this false hope was never transmuted by McCurnin into approval of Drake’s actions.”

The Court held that the burden of proving ratification was on the broker and an intention to ratify an unauthorized act cannot be inferred when the conduct can be otherwise explained. For ratification to be implied, it must be shown that the principal actually had knowledge of the material and pertinent facts. Here the judge was entitled to conclude that the customer’s error, whether error of law or fact, was clearly induced by the broker. The court held that the customer’s effort to repudiate the unauthorized transaction was defeated by the broker.

Though the trial court agreed that the customer owed a duty to minimize his damages, it found that he had acted with reasonable promptness under the circumstances. Immediately upon learning that the broker required that he liquidate his position before they would consider making any adjustment, Mc-Curnin ordered the cotton futures sold.

These were essentially all factual questions. The Judge found the facts. There it ends.

Affirmed.

      . As a discussion of the basis alleged for these federal claims and the reasons for the trial court’s rejection of them would add nothing to the disposition of this appeal, we abstain analysis.

      . In deciding to assume pendent jurisdiction of the state claim the trial court correctly made the following determinations : (i) that the federal question raised was not “unsubstantial and frivolous;” (ii) that the state claims arose from identical facts on which the federal remedies were sought; and (iii) that since the case had been fully tried, it was in the interest of justice as well as judicial economy that the issue be decided on what was already a complete record.

      . The suit below was for $15,286.45. This was the amount of his credit balance at the time of the loss. The broker counterclaimed for $11,438.55, the amount remaining due if the customer had to bear the loss.

      . Article 3010 of the Louisiana Civil Code provides:
      “Art. 3010. The attorney cannot go beyond the limits of his procuration; whatever he does exceeding his power is null and void with regard to the principal, unless ratified by the latter, and the attorney is alone bound by it in his individual capacity.”
      Article 3003 of the Louisiana Civil Code provides in part:
      “Art. 3003. The attorney is responsible, not only for unfaithfulness in his management, but also for his fault or neglect.”


author: PER CURIAM.

text:
    David J. POWERS, a minor, by and through his Father and Next Friend, Edward J. Powers, Appellant, v. Cherry E. WONG and K. C. Wong, Appellees.
    No. 72-1355.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 10, 1973.
    Decided March 13, 1973.
    Thomas J. Walsh and Michael R. O’Malley, Omaha, Neb., for appellant.
    Stephen G. Olson, Omaha, Neb., on brief for appellees.
    Before MATTHES, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, District Judge.

       Hon. Talbot Smith, Senior United States District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

This case involves a collision between an automobile owned and used by defendants Cherry E. Wong and K. C. Wong, driven by defendant Cherry Wong, and a motorcycle owned and driven by plaintiff David J. Powers. The collision occurred as plaintiff was driving north on Highway 73-75 in Sarpy County, Nebraska, at the intersection with Chandler Road. Issues of negligence, contributory negligence and comparative negligence were submitted to the jury over plaintiff’s objections and the jury returned a verdict less in amount than plaintiff’s admitted special damages. Plaintiff filed Motion for a New Trial alleging that there was error in the Court’s submission to the jury of the issues of defendant’s negligence and of plaintiff’s contributory negligence, and comparative negligence, “but mainly asserts that the Court erred in submitting the question of contributory negligence to the jury.”

As we held in Mittlieder v. Chicago & Northwestern Ry. Co., 413 F.2d 77 (8th Cir. 1969), “In determining the sufficiency of the evidence to submit the issue to the jury, the Nebraska standard enunciated in Howell v. Robinson Iron & Metal Co., 173 Neb. 445, 113 N.W.2d 548 (1962), that the conclusion must be ‘reasonably’ supported by circumstantial evidence is equivalent to the federal standard applicable in like circumstances that the conclusion should be within the range of ‘reasonable probability’.” (Footnote omitted)

So far as the appellee is concerned, her conduct was obviously negligent. She proceeded to cross the highway after having observed from her stopped position that oncoming vehicles were only some 100 yards away (approximately 5 seconds of their estimated travel time). She entered the intersection without making sufficient observation of the oncoming vehicles (which had the right-of-way) to estimate their speed, and after such entry, as she proceeded forward, she (in her own words) “took [her] eyes off the Volkswagon and the motorcycle.” Lieutenant King’s, driver of the Volkswagon, evasive action was a swerve to his left, plaintiff’s was the application of his brakes (leaving 29 feet of skidmark), plus a swerve to the right, which, unfortunately, was not sufficient, impact occurring on defendant’s right door.

We have searched the record and the briefs in our attempt to discover just what plaintiff did under these circumstances to reasonably justify a charge of contributory negligence. It is argued that Lieutenant King did not see the defendant’s vehicle until it entered his lane, “nor did the plaintiff, David Powers,” though there is no transcript reference in substantiation of Powers’ lack of comprehension and it is conceded by appellee that he had “no recollection at all of the happening of the accident.” Defendant argues, also, that although Lieutenant King was decelerating as he approached “this congested intersection”, the plaintiff was not. But the record is clear that although this is a dangerous and unusual intersection, far from being “congested”, the traffic “was extremely light” and there were no cars ahead. The reason that Lieutenant King was decelerating was not because of an approaching congested intersection but because he and the motorcycle had been side by side for about two miles and “Just before the accident, I had begun to decelerate because I don’t like to drive directly beside anyone. However, if the motorcycle was ahead of me at the time of the accident, it was only a split-second ahead.”

We are constrained to hold, on the basis of this record, and viewing all of the evidence, together with reasonable inferences therefrom, in the light most favorable to the prevailing party, that there was insufficient evidence of contributory negligence to go to the jury.

The case is reversed and remanded for new trial on the issue of damages only.

      . Memorandum and Order upon plaintiff’s Motion for New Trial.

      . Appendix 31

      . Appendix 32


text:
    Jean BAKER, Petitioner-Appellant, v. The SHERIFF OF SANTA FE COUNTY and the United States Marshal, Respondents-Appellees.
    No. 72-1849.
    United States Court of Appeals, Tenth Circuit.
    Submitted March 27, 1973.
    Decided April 25, 1973.
    E. Douglas Latimer, Marchiondo & Berry, Albuquerque, N. M., for petitioner-appellant.
    Victor R. Ortega, U. S. Atty., Albuquerque, N. M., for respondents-appellees.
    E. Douglas Latimer filed a memorandum in opposition to summary affirmance on behalf of appellant.
    Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.
   PER CURIAM.

In 1967 Jean Baker, as a result of plea bargaining, entered pleas of guilty and sentence was imposed by the United States District Court for the Southern District of Florida. She commenced service of the sentence at the Federal Reformatory in Alderson, West Virginia from which she escaped in 1969 to the State of New Mexico where she was apprehended by federal authorities over two years later. Upon her arrest she sought state habeas corpus relief to retain her presence in New Mexico, and that action was removed to the United States District Court for the District of New Mexico.

The amended federal habeas corpus petition alleged that the guilty pleas were prompted by promises that she would not be released to the custody of Switzerland officials for extradition purposes. Mrs. Baker is a Swiss citizen and an admitted escapee from a Swiss prison. In sum, the contention is that the plea bargain agreement was breached thereby rendering the pleas involuntary and the resulting confinement unlawful.

The proceedings in the federal district court included an evidentiary hearing and were concerned primarily with the question of jurisdiction to entertain an action challenging the voluntariness of the Florida federal sentence. The court determined that it lacked jurisdiction to grant the requested relief and dismissed the petition for writ of habeas corpus. We agree.

28 U.S.C. § 2255 provides, in part:

“An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”

A federal prisoner seeking relief from his federal sentence has Section 2255 as his exclusive remedy. Duval v. Willingham, 390 F.2d 203 (10th Cir. 1968), cert. denied, 393 U.S. 877, 89 S.Ct. 175, 21 L.Ed.2d 149. “ ‘[T]he sole purpose [of Section 2255] was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum,’ [citation] (italics supplied) ;....” Kaufman v. United States, 394 U.S. 217, 221, 89 S.Ct. 1068, 1071, 22 L.Ed.2d 227 (1969). It is elementary that the remedy under Section 2255 is entirely adequate and effective to challenge the voluntariness of a guilty plea. We are unimpressed with the urging that this is a case of first impression, seeking specific enforcement of the plea bargain agreement, or that an escapee is not “in custody under sentence” for Section 2255 to apply.

Our initial review of this case prompted its assignment to the summary calendar and notice of our contemplated summary disposition and an opportunity to oppose in a memorandum addressing the issue herein was extended. The retained attorney has submitted the memorandum. We have now carefully and thoroughly reviewed the files and records in this cause and are convinced that the judgment of the district court is correct.

Affirmed.


text:
    Virgil Gilbert LAWSON, Plaintiff-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Defendant-Appellee.
    No. 72-3629
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 23, 1973.
    Rehearing Denied May 18, 1973.

      Virgil Gilbert Lawson, pro se.
    Crawford C. Martin, Atty. Gen., Guy C. Fisher, Asst. Atty. Gen., Austin, Tex., for defendant-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

The district court denied the petition of Lawson, a Texas state prisoner, for the writ of habeas corpus. We affirm.

Appellant was convicted upon trial by jury of burglary and recidivism, and was sentenced to life imprisonment. The conviction was affirmed on direct appeal, Lawson v. State, Tex.Cr.App. 1972, 482 S.W.2d 210. In his habeas petition filed in the court below, appellant contended that evidence was introduced at this trial which was the product of an illegal search and seizure. He alleged that he was arrested by officers who were at the scene to arrest others; that the police at that time had no knowledge of the crime for which appellant was subsequently convicted; that the evidence was taken from appellant’s automobile without probable cause.

As the district court found, and as the trial transcript reveals, the facts are as follows:

Police, armed with a warrant, went to an apartment house to arrest a Judy Patterson. After arresting her and another woman on a narcotics charge and while still in the apartment, appellant and his codefendant, Norris, approached. One of the women yelled, “Police”, and the two men fled, but were pursued and apprehended by police. During the chase appellant threw away a money sack from which money spilled. Meanwhile, an officer who had remained in the parking lot had observed appellant and Lawson park their automobile, open the trunk, and remove something. They left the lot, leaving the trunk open. The officer observed an open suitcase, tools and other items in the trunk. After appellant was arrested, the officers went to the auto and removed items including burglary tools and a screwdriver taken from the store appellant had burglarized.

Under the evidence, there was no illegal search and seizure and the evidence was admissible under the “plain view” doctrine, Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L. Ed.2d 1067; Patterson v. Stynchcombe, 5 Cir., 1971, 440 F.2d 787; Walker v. Beto, 5 Cir., 1971, 437 F.2d 1018.

Appellant also contended that he was denied counsel to present oral argument on his pro se brief on direct appeal. The contention is utterly frivolous. The appellant was represented by court-appointed counsel on direct appeal who presented oral argument on appeal. On a motion for a rehearing, counsel waived oral argument. Appellant was not deprived of any constitutional right.

There being no clear error in the findings of the district court, the judgment below is

Affirmed.


text:
    Billy Homer FERGUSON, Petitioner-Appellant, v. A. L. DUTTON, Warden, Georgia State Prison, Reidsville, Ga., Respondent-Appellee.
    No. 71-1827
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 21, 1973.
    Walter H. Wingfield, Atlanta, Ga., C. Ronald Ellington, Athens, Ga. (Court Appointed), for petitioner-appellant.
    Arthur K. Bolton, Atty. Gen. of Ga., Dorothy T. Beasley, Atlanta, Ga., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.

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

   PER CURIAM:

Appellant, Billy Homer Ferguson, a white man, presently under sentence of life imprisonment as a result of his conviction for first degree murder, here appeals from the District Court’s denial of his petition for habeas corpus. Although several other substantial consti-tutional questions are raised, the gravamen of Appellant’s complaint concerns the systematic exclusion of Blacks from the grand jury that indicted him and the petit jury that convicted him.

Consistent with the then controlling rule in this Circuit the District Court held that Ferguson, a white man, did not have standing to complain of the systematic exclusion of Blacks from his Douglas County, Georgia, grand and petit juries. But the tenor of the law was greatly altered by the opinion of the United States Supreme Court in Peters v. Kiff, 1972, 407 U.S, 493, 92 S.Ct. 2163, 33 L.Ed.2d 83, holding as follows:

“If [white] petitioner’s allegations are correct, and Negroes were systematically excluded from his grand and petit juries, then he was indicted and convicted by tribunals that fail to satisfy the elementary requirements of due process, and neither the indictment nor the conviction can stand.”

This Court has recently determined that the state courts should be given a first opportunity to pass on the validity of a habeas petitioner’s Peters v. Kiff challenge to the jury array. In Mosley v. Smith, 5 Cir., 1973, 470 F.2d 1320 we held:

“In line with the settled doctrine of requiring exhaustion of state remedies prior to seeking federal relief, we decline and the District Court should decline to consider this question absent exhaustion of the state habeas corpus remedy which is presently available to Appellant. Ga.Code, § 50-127 (Acts 1967, pp. 835, 836).”

Accordingly, we remand to the District Court to allow the question to be presented to the courts of Georgia.

Remanded.

      . See Mosley v. Smith, 5 Cir., 1968, 404 F.2d 346; Woodruff v. Breazeale, M.D. Miss., 1967, 291 F.Supp. 130, affirmed, 5 Cir., 1968, 401 F.2d 997. See also this Court’s decision in Peters v. Kiff, 5 Cir., 1971, 441 F.2d 370, reversed, 1972, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83.

      . In his excellent brief, Petitioner suggests that the exhaustion doctrine is inappropriate for this particular case.
      “Like Peters, Ferguson first raised the issue of systematic exclusion in a petition for habeas corpus found in the Federal District Court, having made no objection at trial. Like Peters, Ferguson clearly cannot be deemed to have waived his right to object to discriminatory jury selection. Similarly, Ferguson has satisfied the requirement that he exhaust state remedies, since recent and unambiguous decisions of the Georgia Supreme Court foreclose such claims in the Georgia courts unless timely presented. Strauss v. Grimes, 1967, 223 Ga. 834, 158 S.E.2d 404; Brawner v. Smith, 1969, 225 Ga. 296, 167 S.E.2d 753; Cobb v. State, 1962, 218 Ga. 10, 126 S.E.2d 231.” The short answer to this argument is that the very similarity between Peters and Ferguson which Petitioner so effectively demonstrates compels us to give the state of Georgia an opportunity to construe the effect of Peters v. Kiff on a Georgia case. Mobley v. Dutton, 5 Cir., 1967, 380 F.2d 14; Mobley v. Smith, 5 Cir., 1971, 443 F.2d 846; Milton v. Wainwright, 5 Cir., 1968, 396 F.2d 214. Cf. Wynn v. Smith, 5 Cir., 1971, 446 F.2d 341, 344-347.


text:
    SPLENDOUR SHIPPING & ENTERPRISES COMPANY, INC., et al., Plaintiff-Appellant, v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, Defendant-Appellee.
    No. 72-1535.
    United States Court of Appeals, Fifth Circuit.
    May 1, 1973.

      Paul A. Nalty, New Orleans, La., for plaintiff-appellant.
    Cornelius G. Van Dalen, New Orleans, La., for defendant-appellee.
    Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.
   PER CURIAM:

The suit below arose from a collision between the vessel Ocean Splendour and the Florida Avenue Bridge, which spans the New Orleans Industrial Canal in Orleans Parish, Louisiana. The Ocean Splendour is owned by petitioner, Splendour Shipping and Enterprises Company (Splendour), a Liberian corporation, and the bridge is owned and operated by the Board of Commissioners of the Port of New Orleans (Dock Board). Splendour sued in admiralty for recovery of damages to its vessel, Ocean Splendour, and sought to have the Florida Avenue Bridge declared a “hazard to navigation.” The Dock Board moved for a dismissal of the complaint on the grounds that as an agency of the State of Louisiana the Dock Board enjoys sovereign immunity from suit in tort. Judge Heebe of the district court denied the motion to dismiss, but certified the question of the Board’s sovereign immunity from suit in tort for immediate interlocutory appeal to this Court under Title 28, U.S.C., Section 1292(b). This Court granted leave to appeal from the interlocutory order. We withheld decision pending decision of this Louisiana law question by the Supreme Court of Louisiana in a related case. According controlling weight to that court’s ruling, which has now been declared, we affirm. The lower court’s decision correctly anticipated the view taken by the highest court of Louisiana.

In a companion case arising out of the same collision, the Dock Board brought suit against Splendour in a Louisiana court for damages to the bridge; Splendour reconvened against the Dock Board for the damages to its vessel. Splendour’s reconventional demand was dismissed by the state trial court on the grounds that the Dock Board, as an agency of the State of Louisiana, enjoys sovereign immunity from suit in tort; the Louisiana Court of Appeal for the Fourth Circuit affirmed, Board of Commissioners v. Splendour Shipping & Enterprises Co., Inc., La.App.1971, 255 So. 2d 869. On January 15, 1973, the Supreme Court of Louisiana reversed, Board of Commissioners of the Port of New Orleans, An Agency of the State of Louisiana, La.Sup.Ct.1973, 273 So.2d 19.

The Supreme Court of Louisiana held that since the doctrine of sovereign immunity in Louisiana was a creation of the judiciary, it could be judicially abolished. Noting that the doctrine of sovereign immunity is unfair, that it tends toward governmental irresponsibility, and that it violates the policy of the Louisiana Constitution, Id., slip. op. at 16-17, the Supreme Court of Louisiana held “. . . that the Board of Commissioners of the Port of New Orleans, and other such boards and agencies, are not immune from suit for tort.” Id., slip. op. at 18. Since the Dock Board clearly does not enjoy sovereign immunity from suit in tort as a matter of state law, it may not assert that defense to an action brought in federal court, cf. Centraal Stikstof Verkoopkantoor, N. V. v. Alabama State Docks Department, 5 Cir. 1969, 415 F.2d 452, 457. Further, this Court has held that a federal court is not barred by the Eleventh Amendment from asserting jurisdiction over the Dock Board based on diversity of citizenship, C. H. Leavell & Co. v. Board of Commissioners of the Port of New Orleans, 5 Cir. 1970, 424 F.2d 764. A different result is not mandated when the admiralty jurisdiction of a federal court is invoked.

Affirmed.


author: AINSWORTH, Circuit Judge:

text:
    Van Ray MILLS, Petitioner-Appellant, v. Dr. George BETO, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 72-3052.
    United States Court of Appeals, Fifth Circuit.
    April 9, 1973.
    Rehearing and Rehearing Eh Banc Denied May 10, 1973.
    Van Ray Mills, pro se; Donald L. Kraemer, Staff Counsel for Inmates, Tex. Dept. of Correction, Huntsville, Tex., for petitioner-appellant.
    John L. Hill, Atty. Gen., Howard Fender, Lang A. Baker, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
    Before AINSWORTH, GODBOLD and CLARK, Circuit Judges.
   AINSWORTH, Circuit Judge:

This is an appeal by Van Ray Mills, appellant, from the denial of habeas corpus in a Texas state criminal matter.

The facts are succinctly stated by respondent Beto, Director of the Texas Department of Corrections, in his brief as follows:

In 1954, while imprisoned in the State of Oklahoma, Appellant was charged in Grayson County, Texas, with the criminal offense of forgery and passing. The Texas authorities issued an arrest warrant on this charge and also lodged a detainer against him at the Oklahoma State Penitentiary. In December, 1958, Appellant escaped from the Oklahoma State Penitentiary and fled to Grayson County, Texas, where he committed an armed robbery and stole an automobile. Appellant was captured in Grayson County, Texas, three days after his escape from the Oklahoma Penitentiary. In January of 1959, Appellant was indicted in Grayson County, Texas, for the theft and armed robbery committed after his escape and also for the 1954 offense of forgery and passing. On January 19, 1959, Appellant entered a plea of guilty in the 15th District Court of Grayson County, Texas, to all three of these offenses and was sentenced to ten years for theft of the automobile, twenty-five years for robbery by assault, and seven years for the 1954 forgery and passing indictment. These sentences were to run concurrently. Subsequently, in response to a request from the Governor of Oklahoma, the Governor of Texas executed an unconditional warrant for the extradition of Appellant to Oklahoma on the charges of assault with intent to kill in connection with his escape from the Oklahoma Penitentiary and also to complete the service of his original sentence in Oklahoma.
In 1967, Appellant completed serving his original sentence as well as the sentence assessed in connection with his escape. Because of the detainer lodged in 1954 by Texas relating to the forgery and passing charge, the Oklahoma Penitentiary authorities notified the Sheriff of Grayson County, Texas. Appellant signed a waiver of extradition and returned to Texas.

Appellant’s contentions are twofold. First, he contends that when Texas permitted his extradition to Oklahoma under an unconditional warrant, its action constituted a waiver of jurisdiction and is equivalent to a pardon or commutation of sentence. Secondly, that the failure of Texas to give him “good time” credit on his Texas sentence for the period of incarceration in the Oklahoma Penitentiary deprived him of constitutional rights under the Fourteenth Amendment.

On his first contention appellant relies most strongly on our decision in Shields v. Beto, 5 Cir., 1967, 370 F.2d 1003, to the effect that the unconditional release to Oklahoma before expiration of his Texas sentence constituted a waiver of jurisdiction. However, we held in Shields that delivery of the prisoner to Louisiana authorities by Texas before expiration of the prisoner’s Texas sentence constituted a waiver of jurisdiction over Shields, “especially where the surrendering sovereign (Texas) showed no interest in the return of the prisoner, either by agreement between the sovereigns, by detainer, or any other affirmative action taken by it following his release in Louisiana.” 370 F.2d at 1005-1006. Texas showed no interest in Shields until a lapse of 28 years after he was extradited by Texas to Louisiana, and 18 years after he was paroled from the Louisiana Penitentiary, free to go as he pleased. See also Bilton v. Beto, 5 Cir., 1968, 403 F.2d 664, 665.

In the present case, differing from Shields, appellant upon his release by Oklahoma was placed in custody of Texas police officers who were waiting at the jail house door to return him to Texas to serve his sentence there. He was not free even for a moment. He was released to Texas authorities because of the pendency of the original 1954 detainer placed by Grayson County, Texas, officials.

There is no indication whatsoever here that Texas had abandoned its interest in appellant or that it intended to waive jurisdiction in his case. The facts are all to the contrary. Texas’ action, therefore, in releasing defendant to Oklahoma cannot be inferred as a waiver of jurisdiction or the granting of pardon or commutation of sentence.

There is no merit to appellant’s second contention that he was entitled to “good time” credit on his Texas sentence for the period while he was incarcerated in Oklahoma. Texas did accord him “straight time” for the period served in Oklahoma but declined to credit him with “good time” for that period. See Bilton v. Beto, 5 Cir., 1968, 403 F.2d 664; Beto v. Sykes, 5 Cir., 1966, 360 F.2d 411; McGinnis, Commissioner v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282.

Affirmed.


text:
    TUPPERWARE COMPANY, a division of Dart Industries, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1784.
    United States Court of Appeals, Sixth Circuit.
    April 17, 1973.
    Newell N. Fowler and Arnold E. Perl, Fowler, Young & Perl, Memphis, Tenn.; Jack G. Hall, Los Angeles, Cal., for petitioner.
    Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., John J. A. Reynolds, Jr., Director, Region 26 N. L. R. B., Memphis, Tenn., for respondent.
    Before WEICK, MILLER and KENT, Circuit Judges.
   ORDER

This case is before this Court upon the petition of Tupperware Company for review of an order entered by the National Labor Relations Board finding it guilty of violating Section 8(a)(3) and (1) of the National Labor Relations Act, by discharging its employee Wade Richardson because of his union activities.

The Board requests the court to deny the petition for review and to enter an order of enforcement of its order. The sole question before the court is whether there is substantial evidence in the record as a whole to support the finding of the Board that the employee was discharged because of his union activities. Having fully examined the record, we are of the opinion that the Board’s order is supported by substantial evidence.

The petition of the company for review will therefore be denied and the Board’s order against the company finding it guilty of violating the Act will be enforced.


text:
    Edelmira Legarreta de URIAS, Plaintiff-Appellee, v. EL PASO CITY LINES, Defendant-Appellant.
    No. 72-3507
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 18, 1973.

      Schuyler B. Marshall, James L. Gallagher, El Paso, Tex., for defendant-appellant.
    Ben A. Endlich, D. Clark Hughes, El Paso, Tex., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

Mrs. Urias was injured when she was pinned between an iron fence surrounding a reboarding area at the international border and a streetcar operated by El Paso City Lines [El Paso]. The trial judge found that El Paso was negligent in that it made no effort to ensure that transit system passengers used the gate provided for their safe passage, even though it knew that sixty percent of its passengers followed the hazardous path between the fence and the streetcar tracks. While the court correctly submitted the question of the plaintiff’s contributory negligence to the jury, which returned a verdict in favor of Mrs. Urias, it erred in refusing to also submit the defendant’s requested volenti issue to the jury; thus we must vacate and remand for a new trial.

There was sufficient evidence from which the jury could have concluded that Mrs. Urias knew of the danger, appreciated its nature and extent, and nevertheless voluntarily encountered the risk. Though Mrs. Urias testified that she did not hear or see the streetcar, there was ample evidence from which the jury could conclude that, in spite of her denial, she knew of the proximity of the streetcar to the fence. According to El Paso’s witnesses, the streetcar was moving toward the reboarding area at a slow rate of speed, with its bell clearly ringing. Further, the movement of the streetcar made a substantial amount of noise. Other passengers heard the streetcar approaching and stepped back.. The front end of the streetcar had already passed the fence into the reboarding area when the plaintiff suddenly seemed to rush or hurry through the small opening between the end of the fence and the streetcar. In sum, the testimony presented a jury question as to whether Mrs. Urias was kware of the oncoming streetcar but unsuccessfully attempted to beat it.

Texas law is well settled that the defense of contributory negligence and volenti non fit injuria are two independent and separate legal theories, either of which constitutes a defense to a negligence action. See J & W Corp. v. Ball, 414 S.W.2d 143 (Tex.1967); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963); McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Messick v. General Motors Corp., 460 F.2d 485 (5th Cir. 1972). Under the facts of this case the defendant was entitled to have not one but both of these issues submitted to the jury.

Moreover, we are unable to say that reasonable men considering all of the evidence in the case could have drawn no conclusion other than that of the defendant’s negligence. Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969). A lengthy recital of the facts is unnecessary. Suffice it to say that an examination of the record in this case demonstrates that, as in most negligence cases, the question was one for the jury. See Taylor v. Bair, 414 F.2d 815 (5th Cir. 1969). Should the evidence be substantially similar on retrial the issue should be submitted for jury determination.

Vacated and remanded.


text:
    Thomas C. EWERT et al., Plaintiffs-Appellees, v. WROUGHT WASHER MFG. CO., a corporation, Defendant-Appellant.
    No. 72-1175.
    United States Court of Appeals, Seventh Circuit.
    Argued March 1, 1973.
    Decided April 3, 1973.
    Rehearing Denied May 2, 1973.
    Albert H. Petajan, Barton M. Peck, Milwaukee, Wis., for defendant-appellant.
    Harold C. Nystrom, Associate Sol., Bobbye D. Spears, Atty., U. S. Dept. of Labor, Washington, D. C., Morton Hollander, Chief, App. Section, U. S. Dept. of Justice, Washington, D. C., David J. Cannon, U. S. Atty., Milwaukee, Wis., for plaintiffs-appellees.
    Before FAIRCHILD, STEVENS, Circuit Judges, and CAMPBELL, Senior District Judge.

      . Senior District Judge Campbell of the Northern District of Illinois is sitting by designation.

   PER CURIAM.

This is an appeal by defendant from a judgment for plaintiffs, opinion reported, Ewert v. Wrought Washer Mfg. Co., 335 F.Supp. 512 (E.D.Wis.1971).

We affirm, relying, as did the district court, on Accardi v. Pennsylvania R. Co., 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966) and Eagar v. Magma Copper Co., 389 U.S. 323, 88 S.Ct. 503, 19 L.Ed. 2d 557 (1967).

According to the collective bargaining agreement in Eagar, the length of paid vacation and the amount of holiday pay depended upon seniority; eligibility for vacation at the time applied for was conditioned on presence at work a percentage of the immediately preceding year and on the date of application; holiday pay was conditioned on being on the payroll for the preceding three months. Similarly, in the case before us, the length of vacation was dependent on seniority; eligibility in a given calendar year required presence at work to a specified extent in the preceding calendar year.

The district court seems to have said that contractual vacation rights are always perquisites of seniority, and that there could be no contractual provision under which vacation rights would fall into the class of other benefits. “We believe, however, that Eagar, in holding that vacation benefits are perquisites of seniority, dictates that resort cannot be had to the collective bargaining agreement to determine the nature of those benefits.” 335 F.Supp. 514. Government counsel, appearing for plaintiff, does not argue so broadly, and stresses the relationship between seniority and vacation rights in the collective bargaining agreement in this case.

Several court of appeals decisions have held that Eagar required classifying vacation rights as perquisites of seniority. Locaynia v. American Airlines, Inc., 457 F.2d 1253 (9th Cir. 1972) and cases therein cited. Two have held that, under particular contracts, vacation rights are not perquisites of seniority. Dugger v. Missouri Pacific Railroad Company, 276 F.Supp. 496 (S.D.Tex.1967), decided before Eagar, but affirmed after Eagar, 403 F.2d 719 (5th Cir. 1968), cert. denied 395 U.S. 907, 89 S.Ct. 1752, 23 L.Ed.2d 222; Kasmeier v. Chicago, Rock Island and Pacific Railroad Co., 437 F.2d 151 (10th Cir. 1971).

Whatever one may conclude about the correctness of Dugger and Ka,smeier with respect to the contracts there considered, we have no difficulty in concluding, under Eagar’s application of Accardi, that the vacation rights under the contract in this case are perquisites of seniority. Accordingly it is unnecessary to decide that there are no conceivable contractual provisions under which vacation rights are so purely additional compensation for services actually rendered, and so independent of seniority that Eagar would not apply.

Much of what was said in Foster v. General Motors Corp., 191 F.2d 907 (7th Cir. 1951), relied on by defendants, is no longer correct in the light of Eagar, and the rationale expressed for Connett v. Automatic Electric Company, 323 F.Supp. 1373 (N.D.Ill.1971), must also yield.

The judgment is affirmed.


author: McALLISTER, Sénior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William CRAIG, Defendant-Appellant.
    No. 72-1922.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 15, 1973.
    Decided April 25, 1973.

      Cornelius Pitts, Detroit, Mich., for defendant-appellant.
    William C. Ibershof, Asst. U. S. Atty., E. D. Mich., Detroit, for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., on brief.
    Before PHILLIPS, Chief Judge, MILLER, Circuit Judge, and Mc-ALLISTER, Senior Circuit Judge.
   McALLISTER, Sénior Circuit Judge.

Defendant was convicted on two counts of selling narcotics. There were two government witnesses who were special agents — one, the buyer in the transaction, and the other, the witness of the sales. The defendant appeals the conviction and raises two issues.

It appears that a woman, who was a narcotic-user herself, was the go-between. She had been arrested on the charge and was out on bail. Through her, the special agents learned of the man who had procured narcotics for her and had used them while with her on many occasions. One of the special agents had been introduced to defendant and to the woman go-between by another spécial agent. The agent, with the woman go-between, referred to as an informant, went to see defendant at his home. According to the agent’s testimony, he asked defendant if he could purchase heroin from him and defendant answered that he could. Defendant told the agent that the heroin was of good quality; that the charge would be $350.-00 an ounce; and if the heroin were found unsatisfactory, a refund would be made. They then went to a certain house where the agent gave defendant the money and, in turn, received the narcotics. The two agents testified to similar transactions in which defendant afterward sold additional heroin to them. In some instances the woman go-between, or informer, was in the car with defendant and one or the other of the agents when they drove to the house where defendant procured the narcotics. Defendant testified that when he went to the house mentioned to secure the narcotics, the money for the purchase of the narcotics was handed to the go-between, or informer, and she turned the money over to the defendant. In addition, the defendant stated that when he procured the narcotics from the house, he handed them to the go-between, who then handed them over to the agent.

The defendant also stated he was told by the go-between that the special agént was an out-of-town dealer in narcotics and she wanted defendant to get some drugs for her to give to the agent in return for the money received from the agent and handed to the defendant. Moreover, and this point is pertinent, the defendant stated that for his services in procuring the narcotics, he received some drugs for himself, and that “it helps when you haven’t got no money and you haven’t had no drugs that day, to run into somebody who is looking for some nice drugs.” Defendant also said that he and the go-between and the agent all engaged in discussion about the narcotics and their prices.

Defendant claims that upon his request, the Government was required to produce the informant in court. We do not agree. The government is not ordinarily compelled to call all witnesses competent to testify including special agents or informers. United States v. Mosby, 422 F.2d 72, 74 (C.A. 8), cert. denied 399 U.S. 914, 90 S.Ct. 2217, 26 L.Ed.2d 571. The evidence upon which the appellant was convicted was secured by government agents personally and was in no way dependent on any informer. United States v. Key, 371 F.2d 421, 423 (C.A.6). The Government was not required to produce the informer under the circumstances of this case; and we find defendant’s contention in this regard to be without merit.

Defendant also claims error because, during the jury deliberations, the trial judge, in answer to a question from the jury as to whether it could recommend leniency, stated it could not make such a recommendation. However, the judge, in his response, stated that sentencing was solely the function of the judge, but that the processing of sentencing was carried out very carefully, with three judges taking part in a consultation and, after a discussion of the case, with the Probation Department. We are of the opinion that the judge’s statement in no way influenced the jury or pressured it into believing that leniency would be granted. See, however, United States v. Davidson, 367 F.2d 60, 64 (C.A.6) as a cautionary suggestion in cases similar to the instant case, and Smith v. United States, 230 F.2d 935, 940, where this Court declared: “It is best simply to advise the jury that they have nothing to do with the penalty.”

Erwin v. United States, 242 F.2d 336 (C.A.6) was an embezzlement case. The trial judge instructed the jury that if it should appear that the defendant did not receive any money “ ‘that would be a circumstance that should be taken into consideration by the Court in determining what sentence should be imposed.’ ” The Court said:

“We do not consider this reversible error, in the instant case; but in other cases, according to circumstances or the language of the instructions, such language might well be suggestive and prejudicial; and it is good practice for a trial court not to refer to the possibilities of sentencing in his instructions.”

In accordance with the foregoing, the judgment is affirmed.


text:
    Lera H. STARK, Appellant, v. UNITED STATES of America, Appellee. William P. STARK, Appellant, v. UNITED STATES of America, Appellee.
    Nos. 72-1579, 72-1580.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 16, 1973.
    Decided April 12, 1973.
    Rehearing Denied May 9, 1973.

      John I. Wassberg, Kansas City, Mo., for appellant.
    Joseph M. McManus, Atty., Tax Div., Dept. of Justice, Washington, D. C., for appellee.
    Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.

       Sitting by designation.

   PER CURIAM.

We are presented with the question whether, in order to claim the $3,000 gift tax exclusion pursuant to 26 U.S.C. § 2503(b), a taxpayer might satisfy his burden of proving that an income interest in a trust has “ascertainable value,” by reference to the actuarial tables found in Treas.Reg., 26 CFR § 25.2512-5 (c).

The taxpayers made gifts of the stock of a closely held corporation to three trusts, for the benefit of each of the taxpayers’ three minor grandchildren. The beneficiaries were to receive the net income from the trusts until each reached the age of 30, at which time the beneficiaries could terminate the trusts and receive the trust corpus. The parties agree that the gifts of the shares of stock to the trusts constitute gifts of future interests and thus are not subject to the annual exclusion, but the taxpayers claim that their making the gifts of the income from the stock entitles each to the annual exclusion of $3,000 for each beneficiary of the trusts pursuant to § 2503(b). The taxpayers based their asserted right to the exclusions on the argument that the right of the beneficiaries to the net income of the trusts was a present interest and was capable of valuation by the use of the actuarial tables prepared by the Commissioner in Treas.Reg. § 25.2512-5 (c). The Government argued that since the stock of the corporation had never been publicly traded and since no dividends had been paid on the stock since 1950, the taxpayers had not established an “ascertainable value” for the right to the income from the stock held in trust.

The undisputed evidence indicates, and the district court specifically found, that there was little possibility that any income would be forthcoming to the beneficiaries from the trusts in question. Under these circumstances, we hold that the income interest had no ascertainable value, and that the taxpayers cannot be allowed to assert a value for the income interest simply by using the actuarial tables of Treas.Reg. § 25.2512-5(c). Van Den Wymelenberg, supra, 397 F.2 at 443; Fischer, supra, 288 F.2d at 574; Morgan, supra, 42 T.C. at 1080; Hamm, supra, 20 CCH Tax Ct.Mem. at 1814; Newmaker, supra, 12 CCH Tax Ct.Mem. at 232. See Mercantile-Safe, supra, 311 F.Supp. at 670; Pettus, supra, 54 T.C. at 112. Rosen v. Comm’r, 397 F.2d 245 (4th Cir. 1968), cited and relied upon by appellant, is distinguishable. The district court opinion recites the facts in detail and demonstrates the correctness of the Government’s position in this case. We, therefore, affirm on the basis of that opinion. Stark v. United States, 345 F.Supp. 1263 (W.D.Mo.1972).

      . In order for a gift to be subject to the § 2503(b) exclusion, two requirements must be satisfied. First, the gift must not be a gift of a future interest, as that term is defined in Treas.Reg., 26 CFR § 25.2503-3(a). Second, the gift must have an “ascertainable value.” This requirement of ascertainable value is one judicially imposed. See, e. g., Van Den Wymelenberg v. United States, 397 F.2d 443 (7th Cir.), cert. denied, 393 U.S. 953, 89 S.Ct. 377, 21 L.Ed.2d 364 (1968); Fischer v. Comm’r, 228 F.2d 574 (3d Cir. 1961); Funkhouser’s Trusts v. Comm’r, 275 F.2d 245 (4th Cir.), cert. denied, 363 U.S. 804, 80 S.Ct. 1237, 4 L.Ed.2d 1147 (1960); Mercantile-Safe Deposit and Trust Co. v. United States, 311 F.Supp. 670 (D.Md.1970); Pettus v. Comm’r, 54 T.C. 112 (1970); Morgan v. Comm’r, 42 T.C. 1080 (1964), aff’d, per curiam, 353 F.2d 209 (4th Cir. 1965), cert. denied, 384 U.S. 918, 86 S.Ct. 1364, 16 L.Ed.2d 439 (1966); Hamm v. Comm’r, 20 CCH Tax Ct.Mem. 1814, Dec. 25, 193(M) (1961), aff’d on other grounds, 325 F.2d 934 (8th Cir. 1963); Newmaker v. Comm’r, 12 Tax Ct.Mem. 232, Dec. 19, 499(M) (1953).


text:
    Darrell G. NIMNICHT, Plaintiff-Appellant, v. DICK EVANS, INC., et al., Defendants-Appellees.
    No. 72-3125
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 19, 1973.
    Darryl J. Tschirn, C. T. Williams, Jr., New Orleans, La., for plaintiff-appellant.
    John O. Charrier, Jr., New Orleans, La., for defendants-appellees.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

This is a seaman’s action for damages for personal injuries sustained while working on a barge off the coast of Louisiana.

Darrell G. Nimnicht was employed by Dick Evans, Inc. on Lay Barge No. 23 owned by J. Ray McDermott and Company, Inc. On February 13, 1970, Nimnicht was assigned to remove a small hand-operated hydraulic pump from a gondola cart on a total saturation diving system aboard Barge No. 23. The diving system was owned by Evans. This gondola cart was used to move a diving bell into position so that the divers could be transferred from the system to the bell and vice-versa. While in the process of removing this pump, Nimnicht sustained an injury to his back.

Alleging the unseaworthiness of the barge and negligence of his employer, Nimnicht filed suit under the Jones Act and General Maritime Law against Evans, McDermott, and McDermott’s insurer, Travelers Insurance Company. The case was submitted to the jury on interrogatories.

On the special interrogatories submitted to it, the jury found that Nimnicht was a seaman but that his employer was not negligent and that the barge was not unseaworthy. Nevertheless, in response to another interrogatory pertaining to compensatory damages, the jury entered an award of $13,500. In addition, the jury made certain findings regarding maintenance and cure which are not on appeal here. The relevant interrogatories answered by the jury are as follows:

1. Was plaintiff, Darrell G. Nimnicht, injured aboard McDermott Barge #23 on February 13, 1970?
A. Yes.
2. Was plaintiff a seaman or a member of the crew of Mc-Dermott #23?
A. Yes.
3. Was the barge McDermott #23 unseaworthy ?
A. No.
5. Did Dick Evans own, operate, control or have an operational interest in the barge in question?
A. Yes.
6. Was the defendant, Dick Evans, Inc., through its employees, negligent ?
A. No.
9. Was the plaintiff, Darrell Nimnicht, negligent?
A. No.
11. Without any reduction for negligence on the part of the plaintiff, if any, what amount do you find will fairly and adequately compensate plaintiff for the damages he sustained ?
A. $13,500.

After receiving the verdict responding to the interrogatories, the trial court pointed out to the jury that finding no negligence or unseaworthiness on the part of appellees there was no party which could be held liable to pay the damage award. Then, the Court, acting on the authority of Rule 49(b) F.R.Civ.P., entered judgment for appellees. Appellant moved for a new trial on the ground that the inconsistent verdicts evinced confusion on the part of the jury. Motion denied. He appeals. We affirm.

There was no objection to the form of the interrogatories as propounded to the jury. It, therefore, is too late to complain on appeal, Wyoming Construction Company v. Western Casualty & Surety Company, 10 Cir., 1960, 275 F.2d 97, cert. denied 362 U.S. 976, 80 S.Ct. 1061, 4 L.Ed.2d 1011, Halprin v. Mora, 3 Cir., 1956, 231 F.2d 197.

This leaves only the question of whether the trial court proceeded correctly in entering judgment for the appellees, notwithstanding the response to Interrogatory 11. For the answer to this we look to Rule 49(b), F.R.Civ.P., which provides:

“The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in 'accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.”

This case presents a situation in which the answers to the special interrogatories were consistent with each other but inconsistent with the findings as to the quantum of damages. Under Rule 49(b) the trial court had three alternatives: (1) to enter judgment in accordance with the special answers, notwithstanding the general verdict, (2) to return the jury for further deliberation, or (3) to order a new trial. The trial court chose the first alternative, holding, in effect, that the answers to the special interrogatories inexorably negated the award of damages.

We are of the opinion that those findings left the District Court with no room to adopt any other course. In the absence of unseaworthiness or negligence, damages could not be awarded. The jury should not have responded to Interrogatory No. 11. The fact that it mistakenly did so could not change the answers to the prerequisite questions, upon which any damages at all had to live or die.

The judgment of the District Court is

Affirmed.


text:
    RIDGEWOOD LAND COMPANY, INC., Petitioner-Appellee-Cross Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant-Cross Appellee.
    No. 72-2949.
    United States Court of Appeals, Fifth Circuit.
    March 23, 1973.

      Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., U. S. Dept. of Justice, Lee H. Henkel, Jr., Chief Counsel, Raymond W. Sifly, Atty., Internal Revenue Service, Robert S. Watkins, Dept. of Justice, Tax Div., Washington, D. C., for appellant.
    Charles L. Brocato, Hugh C. Montgomery, Jackson, Miss., for appellee.
    Before WISDOM, GEWIN and COLEMAN, Circuit Judges.
   PER CURIAM:

This case is here on briefs and oral argument in the appeal of the Commissioner of Internal Revenue from a decision of the Tax Court of the United States, filed January 19, 1972.

The issue is whether, under the particular facts of the case, profits realized on 80.90 acres of land sold under direct threat of condemnation for public purposes are due to be taxed as ordinary income rather than as long-term capital gains.

The Tax Court found as facts: (1) that Ridgewood Land Company, Inc., acquired the property in 1962, for development and sale to customers in the ordinary course of its business; (2) that on October 12, 1965, while the land was yet in an undeveloped state, the Mississippi State' Highway Department authorized its condemnation so as to acquire “fill dirt” for use on a highway construction project; and that (3) after Ridge-wood learned that its original plans could not be accomplished because of the impending condemnation, it changed those intentions and thereafter held the acreage for investment.

Therefore, said the Tax Court, the acreage was a capital asset at the time of its sale to the construction contractor who expected to use it for the aforesaid purposes of the State Highway Department.

Finding ourselves in agreement with the decision of the Tax Court on this point, its Judgment is affirmed.

The taxpayer cross appeals the finding that the acreage was not originally acquired for investment. It is not necessary that we reach or decide that issue.

On both appeal and cross-appeal, the Judgment of the Tax Court is

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas DAVIDSON, Defendant-Appellant.
    No. 72-1869.
    United States Court of Appeals, Sixth Circuit.
    Decided April 30, 1973.

      Lee Larson, Isaac Schulz, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendant-appellant.
    Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, for plaintiff-appellee.
    Before McCREE, MILLER and KENT, Circuit Judges.
   PER CURIAM.

This is an appeal from conviction after a trial without a jury for violation of 50 U.S.C. App. § 462(a), knowingly failing and neglecting to submit to induction into the Armed Forces of the United States.

Appellant’s brief, which was filed January 15, 1973, presents as one of the issues on appeal the contention that there had been no waiver of a jury trial in writing with the approval of the court and the consent of the Government as required by Rule 23 of the Federal Rules of Criminal Procedure. Appellee has not filed its brief within the time stipulated by Rule 31, Federal Rules of Appellate Procedure, and the appeal has been referred to a panel of this court under Rule 3(e) of the Rules of the United States Court of Appeals for the Sixth Circuit. A careful examination of the record on appeal, including the docket entries and the transcript of testimony, does not reveal a waiver of jury trial.

Accordingly, the judgment is reversed and the case is remanded for a new trial. See United States v. McCurdy, 450 F.2d 282 (9th Cir. 1971).

Reversed and remanded.


text:
    Arthur L. PERRY, Plaintiff-Appellant, v. APEX SMELTING CO., Defendant-Appellee.
    No. 72-1961.
    United States Court of Appeals, Sixth Circuit.
    Argued April 4, 1973.
    Decided May 1, 1973.
    Charles B. Lyon, Donnelly, Maky, Renner & Otto, Cleveland, Ohio, for plaintiff-appellant.
    Gerald Palmer, Cleveland, Ohio, for defendant-appellee; Barry L. Springel, Jones, Day, Cockley & Reavis, Cleveland, Ohio, on brief.

      Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
   PER CURIAM.

Appellant appeals from a summary-judgment entered on defendant’s motion in plaintiff’s suit for damages against his employer, Apex Smelting Co. Plaintiff claims that he provided the company with an invention for pouring metal more efficiently which the company appropriated to its own use without any compensation to him. His complaint is phrased as an action for damages resulting from defendant’s appropriation of a trade secret belonging to him and as an action for damages resulting from unjust enrichment.

We do not read the plaintiff’s deposition, when it is taken as a whole, as an admission by the plaintiff that he expected no consideration for submitting his invention to the company.

The summary judgment for defendant on the trade secret claim is affirmed. The summary judgment as to plaintiff’s unjust enrichment action is reversed and the case is remanded for trial on that count.


text:
    Edward W. HAVENS, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education & Welfare, Defendant-Appellee.
    No. 72-3712
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 19, 1973.
    Emmett L. Goodman, Jr., Macon, Ga., for plaintiff-appellant.
    William J. Schloth, U. S. Atty., Ronald T. Knight, Asst. U. S. Atty., Macon, Ga., for defendant-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N.Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

There was substantial evidence from which the Secretary could conclude that Havens’ epileptic seizures could be controlled by medication and abstinence from alcohol. There is no merit in the appellant’s contention that his chronic alcoholism or the symptoms resulting from his excessive use of alcohol compelled a different result in the evaluation of his claim of disability. Osborne v. Cohen, 409 F.2d 37 (6th Cir. 1969); Roberts v. Gardner, 396 F.2d 501 (4th Cir. 1968); Hirst v. Gardner, 365 F.2d 125 (7th Cir. 1966); Brasher v. Celebrezze, 340 F.2d 413 (8th Cir. 1965). The judgment of the district court is

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Michael RIVAS, Defendant-Appellant.
    No. 72-3222
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 11, 1973.
    G. Paul Shoop, Dallas, Tex. (Court Appointed), for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

The defendant, Charles Michael Rivas, was charged on May 18, 1972, in a two count indictment as follows:

Count I

Knowingly and intentionally possessing with intent to distribute for remuneration approximately two pounds and five ounces of marijuana in violation of 21 U.S.C., § 841(a)(1).

Count II

Knowingly and intentionally possessing a quantity of marijuana in violation of 21 U.S.C., § 844(a).

On June 2, 1972, Rivas was arraigned on the first count, it being specifically stated in open court that the second count was to be dismissed. The defendant, represented by counsel, was thoroughly interrogated not only by the United States Attorney but, ultimately, by the Court. In addition, the defendant stated that his counsel had gone over his rights with him “in detail”.

On September 29, almost four months after the arraignment, and a week before he was sentenced, represented by a different attorney, Rivas filed a motion to be allowed to withdraw his plea of guilty.

After a hearing on October 2, 1972, this motion was denied. Sentence was imposed October 5. Rivas now appeals from the denial of his motion to withdraw the guilty plea.

We affirm the action of the District Court because our perusal of the record convinces us beyond peradventure of a doubt that Rivas at all times thoroughly understood his rights, was exhaustively informed as to his situation, and knew that what might have been an “included offense” in the first count was being dismissed as embodied in the second count.

This appellant has in no way been over-reached, misinformed, or uninformed either as to his rights prior to the entry of the plea or as to the alternatives he might have pursued.

The judgment of the District Court is

Affirmed.