author: EUGENE A. WRIGHT, Circuit Judge:

text:
    The PORT OF PORTLAND, a municipal corporation, Plaintiff-Appellee, v. AN ISLAND IN the COLUMBIA RIVER et al., Defendants-Appellants.
    No. 71-2482.
    United States Court of Appeals, Ninth Circuit.
    May 25, 1973.
    Rehearing Denied June 19, 1973.

      See also D.C., 315 F.Supp. 1160.
    Alfred A. Hampson, of Williams, Montague, Stark, Hiefield & Norville, Portland, Or., for defendants-appellants.
    Slade Gorton, Atty. Gen., Theodore 0. Torve, Asst. Atty. Gen., Olympia, Or., Robert L. Myers, of Shuler, Rankin, Myers, Walsh & Ragen, Duane Yergeer, of Vergeer, Samuels, Roehr & Sweek, Portland, Or., for plaintiff-appellee.
    Before CHAMBERS, ELY and WRIGHT, Circuit Judges.
   EUGENE A. WRIGHT, Circuit Judge:

Sand Island, in the Columbia River, was the object of an action to quiet title which gave rise to this appeal. An Interstate Compact in 1958 between Washington and Oregon placed it within the latter state. We are concerned with its status before that date.

The district court held that the island was within the State of Oregon at all times in question. We find the district court applied the wrong legal standard and we must reverse and remand for a new trial.

Sand Island emerged in the Columbia River as the result of alluvial deposits which first appeared on charts as sand bars and shoal water after both Oregon and Washington had been admitted to the Union. The island even now is not entirely stationary, but has remained in its general location for many years.

The plaintiff, a municipal corporation of the State of Oregon, claims title to the island under a 1970 deed from the State of Oregon. The defendant-appellants claim title under a 1929 deed from the State of Washington. If that instrument was effective to convey the island to the appellants’ predeeessor-in-interest, then the Port of Portland was not entitled to a decree quieting title in its favor. If the State of Washington owned Sand Island in 1929, it is conceded that its deed at that time was effective.

The boundary of the State of Oregon was established by the Oregon Admission Act of 1859, 11 Stat. 383. The Act describes the boundary as follows:

“Beginning one marine league at sea due west from the point where the forty-second parallel of north latitude intersects the same; thence northerly, at the same distance from the line of the coast, lying west and opposite the State, including all islands within the jurisdiction of the United States to a point due west and opposite the middle of the north ship channel of the Columbia River; thence easterly, to and wp the middle channel of said river, and, where it is divided by islands, up the middle of the widest channel thereof, to a point near Fort Walla-Walla. .” (Emphasis supplied.)

The italicized part of the boundary definition applies here. The district court concluded that the 1929 boundary between Washington and Oregon was the middle of the channel of the Columbia running north of Sand Island because the river was divided by an island and the widest channel of the river was to the north of Sand Island.

The appellants contend that the district court misread the statutory boundary definition and they urge that the “widest channel test” applies only when the “main channel” is divided by one or more islands. The lower court made no finding either that the main channel was divided by Sand Island or that the main channel in 1929 ran north of Sand Island. For that reason appellants urge that the judgment must be reversed.

As we have noted, we agree that the judgment cannot stand. Our reasons are quite apart from the resolution of the issue presented by the parties on the proper antecedent of the word “thereof” in the boundary definition. In our view the lower court erred in applying the “widest channel test” because Congress did not intend that islands such as Sand Island, formed after the admission of Oregon to the Union, should be considered in fixing the Oregon-Washington boundary.

The location and ownership of islands formed after 1859, read in connection with the boundary definition, present questions which apparently have not previously been presented to any court. Neither the “plain language” of the Admission Act, nor the legislative history thereof, gives one much guidance in resolving this issue. But in our opinion the relative neutrality of the language chosen and the paucity of legislative history on or near the point are factors which indicate that no dramatic deviation from the common law was intended.

Islands in rivers are generally formed in two ways:

“by accretions produced by the deposit at a particular place of the soil and sand constantly floating in it, and by the river cutting a new channel through the mainland on one or the other of its shores.” Missouri v. Kentucky, 11 Wall. (78 U.S.) 395, 407, 20 L.Ed. 116 (1870).

If the island is formed in the second way, by avulsion, the common law is well settled that, if the boundary between two states (or private property owners) is the river, the boundary remains the old channel and the island would belong to the owner of the mainland to which it was previously attached. Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186 (1892); Missouri v. Nebraska, 196 U.S. 23, 25 S.Ct. 155, 49 L.Ed. 372 (1904); Missouri v. Kentucky, supra.

If the island is formed by gradual deposits in midstream, it is equally well settled under the common law that the island belongs to the owner of the river bed in the place where the island arose. If the river is the boundary between two states the island would belong to the state on whose side of the middle of the main channel it was formed. St. Louis v. Rutz, 138 U.S. 226, 11 S.Ct. 337, 34 L.Ed. 941 (1891); Jones v. Soulard, 24 How. (65 U.S.) 41, 16 L.Ed. 604 (1860); 5A Thompson on Real Property § 2564 at 620 (1957 ed.).

Were after-formed islands to bring the widest channel test into play both of the above common law results would be altered. If a new island were formed by avulsion and the new channel were wider than the old one (as it generally would be) then, by application of the statutory boundary definition including the after-formed island, the new land would suddenly be part of the state which owned the opposite bank of the old channel.

Likewise, if a new island were formed by deposits .in the river bed (as Sand Island evidently was), the boundary would be the wider channel on either side of the island, irrespective of where, in relation to the middle of the main channel, the island was formed. Moreover, if the island continued to grow on both sides by accretion, the boundary could well shift back and forth as first one channel and then the other momentarily became the “widest channel”!

We perceive no good reason for concluding that Congress intended by the Oregon Admission Act to achieve results so far removed from what had theretofore been settled law. Consequently, we hold that islands such as Sand Island, formed subsequently to 1859, are not to be considered in determining the Oregon boundary prior to the 1958 compact. The boundary remains what it was in 1859, the varying center of the main channel subject to such modifications as have been made by compact, which, as against defendants, cannot be made retroactive as to their property interests.

While one could well infer from the evidence presented that the main channel has always been south of Sand Island, the trial court made no finding on this point. Because the case was apparently tried by the parties on the wrong theory we think the best resolution is for this court to order a new trial so that new evidence can be taken and new findings made.

Reversed and a new trial ordered.

      . When Washington was admitted to the Union in 1889 the same language (with one minor modification not relevant here) was used to define its boundary along the Columbia River, 25 Stat. 676. In any event the language of the Washington Admission Act cannot affect Oregon’s rights for
      “[t]he northern boundary of the state of Oregon was established prior to that of the state of Washington, and it is not within the power of the national government to change that boundary without the consent of Oregon.” Washington v. Oregon, 211 U.S. 127, 130-131, 29 S.Ct. 47, 53 L.Ecl. 118 (1908).

      . Though the Act speaks of the “middle channel” the Supreme Court held in Washington v. Oregon, 214 U.S. 205, 216, 29 S.Ct. 631, 53 L.ED. 969 (1909) that the language should properly be construed as “the middle of the main channel.”


source: Caselaw Access Project

author: CELEBREZZE, Circuit Judge.

license: Public Domain

text:
    BOWLING GREEN-WARREN COUNTY AIRPORT BOARD, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent.
    No. 72-1870.
    United States Court of Appeals, Sixth Circuit.
    Argued April 12, 1973.
    Decided June 1, 1973.
    James David Bryant, Bowling Green, Ky., for petitioner; Allender, Simmons & Robertson, Bowling Green, Ky., on brief.
    O. D. Ozment and Calvin Davison, Washington, D. C., for respondent; R. Tenney Johnson, Warren L. Sharfman, Robert L. Toomey, Rozann M. Skozen, Civil Aeronautics Bd., Thomas E. Kauper, Asst. Atty. Gen., Howard E. Shapiro, Dept, of Justice, Washington, D. C., on brief.
    Calvin Davison, Reavis, Pogue, Neal & Rose, Washington, D. C., for inter-venor.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and MILLER, Circuit Judges.
   CELEBREZZE, Circuit Judge.

This is a petition for review of the decision and final order No. 72-7-25, rendered by the Civil Aeronautics Board (hereinafter the Board) on July 7, 1972. By this order the Board granted the application of Eastern Air Lines, Inc., for amendment of its certificate of public convenience and necessity for Route 10 so as to delete the point Bowling Green, Kentucky, from that route.

The following facts, as adopted by the Board, appear in the initial decision of the examiner. Bowling Green is the county seat of Warren County, Kentucky, and the trade center for several counties in south-central Kentucky. In recent years Bowling Green and Warren County have experienced a trend of industrialization and relatively rapid growth. Thus Bowling Green’s population has increased from about 18,000 in 1950 to about 38,000 in 1970, and the County’s population increased from about 43,000 to about 55,000 during the same period.

Bowling Green is located approximately 60 miles north of Nashville, Tennessee, and approximately 100 miles south of Louisville, Kentucky, both of which cities are classified by the Federal Aviation Administration as medium air traffic hubs. From the Nashville airport, five trunklines and four local service air carriers provide single-plane service to over 65 cities throughout the United States. From the Louisville airport, four trunklines and three local service air carriers provide single-plane service to over 70 cities across the county. Louisville, Bowling Green, and Nashville are linked by Interstate Highway 65, a major north-south highway, as well as a major bus line providing frequent service between these points and beyond.

Since its certificate was amended in 1947 so as to add Bowling Green as a point on its Nashville-Louisville segments of Route 10, Eastern provided continued daily service to Bowling Green up to September 1969. In fiscal year 1969, the number of origin and destination passengers for Eastern at Bowling Green had reached 11,852 per year or over 32 per day on its two daily schedules (southbound in the mid-morning and northbound in the late afternoon), and traffic had increased at a rate of about 2,000 passengers per year.

On May 1, 1969, Eastern filed an application requesting suspension of its service at Bowling Green and approval of an agreement between Eastern and Air South, Inc., whereunder Air South would be employed by Eastern as an independent contractor to perform replacement service to Bowling Green. Air South was to provide three daily round-trips between Bowling Green and Louisville and two daily roundtrips between Bowling Green and Nashville, and bear its own expenses subject to Eastern’s agreement to underwrite Air South in amounts of no more than $50,000 the first year, $10,000 the second year, and $5,000 the third year. In support of its application, Eastern cited its competition from numerous strong trunklines which are able to devote their full attention to dense and/or long-haul routes upon which Eastern is dependent for economic survival. Eastern noted that it would save $300,000 annually from suspension at Bowling Green and that Bowling Green would benefit from the more frequent service to Nashville and Louisville under the replacement service.

In August 1969, the Board approved Eastern’s application for temporary suspension at Bowling Green and the agreement for replacement service by Air South. The Board’s approval was made subject to the condition that the suspension granted to Eastern would immediately terminate if Air South should cease to satisfactorily provide the specified replacement service.

Air South provided reliable service from September 2, 1969 through March 31, 1970, when it terminated its replacement service due to a lack of financial resources and support. Notwithstanding Air South’s morning, afternoon, and evening service from Bowling Green to Louisville and Nashville, the number of origin and destination passengers at Bowling Green dropped to an average of 21.9 per day during this seven month period — a decline of about one-third from the traffic Eastern had carried just prior to its replacement by Air South.

Faced with the legal obligation of providing air service to Bowling Green when Air South terminated its replacement service, Eastern on March 30, 1970, applied to the Board for continuation of its temporary suspension at Bowling Green and for approval of a one-year agreement between Eastern and Northern Airlines, Inc., which was then providing scheduled air service between Louisville, Bowling Green, and Nashville. Under the agreement Eastern would underwrite Northern in the amounts of $8,000 per month for the first three months of operation and no more than $4,000 per month thereafter for the latter’s replacement service at Bowling Green.

Pending the Board’s consideration of the above application, Northern’s service was admittedly unreliable and unsatisfactory, and Northern in fact terminated service at Bowling Green on or about May 8, 1970. Bowling Green was thus without reliable and satisfactory air service from April 1, 1970, until May 25, 1970, and with no service at all during the last 17 days of this period.

On May 25, 1970, Eastern entered into a third contractual agreement for replacement service to Bowling Green, this time with Wright Air Lines, Inc. Whereas Air South and Northern in essence had been employed as independent contractors, retaining all revenues and bearing all expenses subject to underwriting payments by Eastern, Wright was essentially employed to provide substitute air service on a cost-plus-10 percent basis, subject to an initial ceiling of $28,000 per month. Under the agreement, Wright was to provide Bowling Green with at least three daily round-trips to Louisville and at least two daily roundtrips to Nashville.

On September 24, 1970, the Board approved Eastern’s application for continued temporary suspension at Bowling Green, subject to Wright’s performance of the specified replacement service, and the agreement between Eastern and Wright for such replacement service. In so approving Eastern’s application, the Board acknowledged that replacement service at Bowling Green had not been satisfactory. The Board was nonetheless of the belief that Wright’s replacement service, sponsored and sustained by Eastern, would be superior to prior replacement service and superior to the service which would be provided directly by Eastern were the suspension denied.

On December 31, 1970, Eastern filed the present application for deletion of Bowling Green from its certificate for Route 10.

In his initial decision rendered after a public hearing, Examiner Sornson apparently recognized that there is no reasonable prospect that reinstitution of direct service at Bowling Green by Eastern would be economically feasible. The Examiner nonetheless concluded that Bowling Green should not be deleted from Eastern’s certificate, but rather that Eastern should continue to be responsible for the community’s air service needs through support of air taxi replacement service. The Examiner found Eastern’s request for total relief by way of deletion of Bowling Green to be unwarranted in that “Eastern (had) not shown that a substitute service arrangement at Bowling Green cannot be successful. . . . ” In support of this conclusion, Examiner Sornson cited what he found to be inadequate subsidies paid by Eastern to Air South and Wright and Eastern’s failure to effectively promote and advertise the replacement ■ service.

Reviewing the decision of the Examiner, the Board rejected his finding that Eastern had failed to show that a substitute Service arrangement cannot be successful at Bowling Green and his conclusion that Eastern should remain responsible for the community’s air service needs through support of air taxi replacement service. Instead, the Board concluded from the evidence that

“continued air taxi operations have only a limited chance of eventual success and that there are no unusual or extenuating circumstances which would warrant support of the magnitude which would be required to continue such operations.”

In support of its conclusion, the Board reviewed the decline in the number of passengei’s experienced by both Air South and Wright and the resulting operating losses suffered by these replacement carriers, notwithstanding the substantial subsidies paid by Eastern. Thus Air South, with its fully satisfactory schedules and performance, was able to generate only 22 daily origin and destination passengers, resulting in a loss of over $127,000 during its seven months of operation. And during its first year of operation, Wright experienced traffic of under 20 daily origin and destination passengers, resulting in a loss of $242,000 or $35 per passenger. The Board also relied on the evidence that after approval' — without civic objection —of reduced service by Wright in May 1971 to stem continuing losses, traffic dropped to about 12 passengers per day.

The Board further rejected the Examiner’s finding that the decline in passenger traffic is attributable to Eastern’s failure to promote and assist the substitute service and Eastern’s inadequate subsidies. In addition to providing support services for both Air South and Wright, Eastern spent about $3,500 in the year ended May 1971 advertising and promoting Wright’s substitute service. Eastern paid Air South $50,000 in cash subsidy for the latter’s seven months of operation and paid Wright almost $300,-000 for the first year of its replacement service.

The Board therefore concluded that the public convenience and necessity require the amendment of Eastern’s certificate for Route 10 so as to delete Eastern’s authority to serve Bowling Green.

Under our narrow scope of review as set forth in 49 U.S.C. § 1486(e), the Board’s findings of fact are conclusive if supported by substantial evidence. Beyond this scope of judicial review, we must defer to the Board’s expertise and discretion in weighing the many factors and policy considerations which enter into Board decisions respecting public convenience and necessity. See City of Pontiac v. C. A. B., 361 F.2d 810, 814-815 (6th Cir. 1966).

From the record before us we find that the Board’s findings of fact are supported by substantial evidence. Relying upon the undisputed rates of traffic generation at Bowling Green between 1962 and 1969, the Board found that there is no reasonable prospect .that a reinstitution of direct service by Eastern could be profitable in the future. This finding — which also appears to be a conclusion of the Examiner — is supported by evidence that during its peak year of 1969 with 11,853 origin and destination passengers at Bowling Green, Eastern achieved load factors of only about 30 percent and suffered an operating loss of almost $300,000 (about $25 per Bowling Green passenger) on its Bowling Green-Nashville and Bowling Green-Louisville flights.

We also find substantial evidence on the record to support the Board's findings that continued replacement air taxi operations supported by Eastern have an extemely limited chance of success and that traffic response to these operations does not warrant their continuation. As reviewed above, the declining traffic under Air South’s and Wright’s operations, and the substantial operating losses suffered by these replacement carriers despite Eastern’s subsidies fully support these findings by the Board.

We find no merit in Petitioner’s argument that the Board’s order must be set aside, because the Board failed to give sufficient weight to the several factors prescribed in 49 U.S.C. § 1302. Petitioner asserts that the Board failed to adequately consider the future commercial needs of Bowling Green as well as the effects of its decision upon the Postal Service and the national defense.

With respect to Bowling Green’s future commercial needs, its opinion discloses that the Board was fully aware of the factors favoring the maintenance of air service not only in Bowling Green but also in all smaller communities across the nation. On balance, however, the Board found that Bowling Green’s future commercial needs and the community benefits from certified air service do not warrant continued requirements that Eastern — as a trunkline carrier — bear the responsibility and expense of the unsuccessful operations at the City. Finding no abuse of the Board’s discretion, we are powerless to reweigh these factors which were before the Board. See City of Pontiac v. C. A. B., supra, 361 F.2d at 814-815; Outagamie County v. C. A. B., 355 F.2d 900, 906 (7th Cir. 1966).

Moreover, we find in the record no evidence respecting the effects of the Board’s decision on the present and future needs of the Postal Service and the national defense. Even if such evidence had been introduced, however, we do not believe that the Board is required in every case to make express findings on every factor set forth in Section 1302. See Outagamie County v. C. A. B., supra, 355 F.2d at 906.

The order of the Board is affirmed.

      . Claiming an insufficient number of passengers at Bowling Green to support the two daily roundtrip flights it was then providing to Nashville and Louisville, in 1961 Eastern applied for suspension and deletion of Bowling Green and replacement of its Nashville-Bowling Green-Louisville service by Ozark Air Lines, Inc. The Board denied this application in a decision rendered in 1964.

      . 49 U.S.C. Section 1302 provides as follows :
      “In the exercise and performance of its powers and duties under this chapter, the Board shall consider the following, among other things, as being in the public interest, and in accordance with the public convenience and necessity:
      (a) The encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense ;
      (b) The regulation of air transportation in such manner as to recognize and preserve the inherent advantages of, assure the highest degree of safety in, and foster sound economic conditions in, such transportation, and to improve the relations between, and coordinate transportation by, air carriers;
      (c) The promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices;
      (d) Competition to the extent necessary to assure the sound development of an air-transportation system properly adapted to the needs of tiie foreign and domestic commerce of the United States, of the Postal Service, and of the national defense;
      (e) The promotion of safety in air commerce; and
      (f) The promotion, encouragement, and development of civil aeronautics. Pub.L. 85-726, Title I, § 102, Aug. 23, 1958, 72 Stat. 740.”


author: THORNBERRY, Circuit Judge:

text:
    Mrs. Gilbert Lee WOOLARD, a widow, et al., Plaintiffs-Appellees, v. MOBIL PIPE LINE COMPANY et al., Defendants-Appellants.
    No. 72-2726.
    United States Court of Appeals, Fifth Circuit.
    June 7, 1973.
    Rehearing and Rehearing En Banc Denied July 16, 1973.

      B. Jeff Crane, Jr., Houston, Tex., William H. Tabb, Ronald L. Neill, Dallas, Tex., for defendants-appellants.
    W. W. Watkins, Houston, Tex., William E. Townsley, Beaumont, Tex., John M. O’Quinn, Houston, Tex., for plaintiffs-appellees.
    Before TUTTLE, THORNBERRY and DYER, Circuit Judges.
   THORNBERRY, Circuit Judge:

On the night of June 20, 1969, Gilbert Lee Woolard, an employee of appellant Mobil Pipe Line Company, was working at that company’s Beaumont, Texas, metering station with two other men: Red Marsh, another Pipe Line Company employee, and Walton Goodwin, an employee of appellant Mobil Oil Corporation, which leased the land on which the metering station was located to Mobil Pipe Line, its wholly-owned subsidiary. The men were removing water from a ten-inch liquid petroleum gas (LPG) pipeline running from Corsicana, Texas, through Pipe Line’s Beaumont metering station and into the Mobil Oil refinery immediately adjacent to the metering station. The water was moving down the line under pressure, having been inserted to facilitate repairs on two sections of the line. During the repairs, the water had become separated into two slugs, the first of which arrived at the metering station at approximately 9:15 a. m. on June 20, 1969, and was removed without incident, by diverting it from the ten-inch LPG line into a four-inch and then a two-inch line and thence into an open ditch along the east side of the metering station.

The second slug of water arrived at the metering station at approximately 7:00 p. m. on June 20, and the three men began discharging it through the four- and two-inch lines into the open ditch. Directly behind this slug of water, the pipe was filled with extremely flammable LPG; in order to prevent the LPG from being discharged into the open ditch where it might ignite, the men at the metering station had to have an accurate idea of the arrival time of the “interface” between the water and the LPG, so that they could divert the LPG either into the Mobil Oil refinery through the ten-inch line, or into Mobil Oil’s flare system, which was available for the metering station’s use in emergencies.

Mobile Pipe Line’s dispatcher in Dallas had earlier told Marsh, the other Pipe Line employee at the metering station, that the estimated time of arrival of the water-LPG interface at the metering station was 12:35 a. m., June 21; but at 10:45 p. m. on June 20, while the second slug of water was discharging from the line, Marsh was told that the water-LPG interface could arrive at any time. The interface arrived at 11:25 p. m.; LPG was discharged into the atmosphere through the four-inch and two-inch lines and was ignited by some unknown source. The resulting explosion and fire took the lives of all three men in the metering station.

Woolard’s parents and his widow, on behalf of herself and her children, filed this wrongful death and survival action in the court below. In response to special interrogatories, the jury found that Mobil Oil Corporation was negligent in failing to provide a flare system for the exclusive use of Mobil Pipe Line’s metering facility, and that Mobil Pipe Line, Woolard’s employer, was grossly negligent in several respects to be fully discussed below. Judgment was entered against Mobil Oil Corporation for $125,000, and against Mobil Pipe Line Company for $100,000, and this appeal followed. We affirm the judgment against Mobil Oil Corporation, but reverse the judgment against Mobil Pipe Line Company.

I.

Negligence of Mobil Oil

Pointing to the fact that it leased the land on which the metering station was located to Mobil- Pipe Line Company, Mobil Oil claims that it was a mere landlord without possession or control of the premises, and as such owed its tenant’s employee, Woolard, no duty to use reasonable care to eliminate dangerous conditions at the metering station. Ap-pellees, on the other hand, contend that the evidence established that Mobil Oil was a “joint venturer” with Mobil Pipe Line in the operation of the metering station, and that Mobil Pipe Line’s negligence could therefore be imputed to Mobil Oil.

The Texas doctrine of “joint venture” makes each party thereto the agent of the other for purposes of tort liability; when the facts show a joint interest in the purpose of the enterprise and an equal right to control its conduct, the doctrine imposes vicarious liability upon a party for the other’s negligence. Bonney v. San Antonio Transit Co., 160 Tex. 11, 325 S.W.2d 117 (1959); Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65 (1949). In the case at hand, the jury found that Mobil Oil Corporation was negligent, in its own right, in failing to provide a flare system for the exclusive use of the metering station; Mobil Oil argues that it could not have been negligent because in its role as landlord it owed no duty to Mobil Pipe Line’s employees. The doctrine of joint venture, however, is one of imputed, not actual, negligence; if one of two joint ventur-ers is negligent, then the negligence of the other is immaterial to the imposition of vicarious liability upon him. A determination of whether Mobil Oil and Mobil Pipe Line were joint venturers in the operation of the metering station is therefore irrelevant to the question whether Mobil Oil itself breached a duty it owed to Woolard. Accordingly, we intimate no view as to whether the evidence showed that Mobil Oil and Mobil Pipe Line were joint venturers, and instead turn to the question whether Mobil Oil owed to Woolard a duty to use reasonable care to eliminate dangerous conditions at the metering station.

According to Texas law, a landlord who does not agree to repair the leased premises and who does not fraudulently conceal defects' of which he has knowledge, is under no duty to either his tenant or the tenant’s employee to correct an unsafe condition on the premises. Flynn v. Pan American Hotel, 143 Tex. 219, 183 S.W.2d 446 (1944); Yarbrough v. Booher, 141 Tex. 420, 174 S. W.2d 47 (Tex.1943); Daniels v. Shell Oil Co., 485 S.W.2d 948 (Tex.Civ.App.—Ft. Worth 1972, writ ref’d n. r. e.); Katz v. Southwestern Scrap Materials Co., 412 S.W.2d 685 (Tex.Civ.App.—Dallas 1967, no writ). This rule, however, is subject to exceptions. If the lease is a mere sham employed by the “landlord” to fraudulently conceal his continued control over the premises, Texas courts impose upon him a duty owed to his tenant and to those entering under the tenant to use ordinary care to guard against dangerous conditions. Johnson v. Murry Co., 90 S.W.2d 920 (Tex.Civ. App.—Austin 1936, writ dism’d); Oriental Investment Co. v. Barclay, 25 Tex. Civ.App. 543, 64 S.W. 80 (1901, error ref’d). Likewise, the landlord is under a duty to use ordinary care to eliminate unsafe conditions on portions of the leased premises over which he has retained exclusive control, Brown v. Frontier Theaters, Inc., 369 S.W.2d 299 (Tex.1963), and in areas reserved for the common use or benefit of several tenants occupying the premises. Hall v. Medical Building of Houston, 151 Tex. 425, 251 S.W.2d 497 (Tex.1952); Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585 (Tex.1948).

In each of these situations in which Texas courts impose a duty of ordinary care upon a landlord, the landlord, by virtue of his continued possession or control of the premises, is in a position to know of the defect and to take steps to correct it. Although our research has disclosed no Texas ease involving the precise facts of the instant one, we conclude that Texas courts would impose a duty to use ordinary care upon a landlord who shares control of the leased premises with his tenant. Furthermore, our review of the record discloses sufficient evidence from which a jury could reasonably conclude that control over the Beaumont metering station was shared by Mobil Oil and Mobil Pipe Line. Mobil Oil could veto any of Mobil Pipe Line’s proposed alterations in the metering station which Mobil Oil considered unsafe (App. 314); Mobil Oil employees had keys to unlock gates in the fence surrounding the metering station (App. 294-95), and new Mobil Oil executives were given a tour of the metering plant as part of their orientation (App. 291); Goodwin, the Mobil Oil employee who was killed in the explosion, had the authority to decide when to open and close valves during the purging operation (App. 343-52; 363). Accordingly, we hold that there was evidence from which the jury could properly decide that Mobil Oil owed to Woolard a duty to use ordinary care to eliminate dangerous conditions at the metering station.

Mobil Oil’s contention that proximate causes was not established need not detain us long. Mobil Oil argues that the failure to provide an adequate flare for the exclusive use of the metering station had nothing to do with Woo-lard’s death, because there was no proof that any of the men attempted to close the one valve necessary to divert the LPG into the refinery’s flare system. But the jury could reasonably conclude that the valve was not closed because the LPG had vaporized and frozen it (App. 396-97), or because the men at the metering station knew that the refinery’s flare system was inadequate under these circumstances (App. 366-69). In short, the failure to close the valve did not preclude a finding of proximate cause.

Mobil Oil contends further that the trial court erroneously overruled its objections to evidence showing alterations in procedure and equipment made subsequent to the accident at the metering station. In particular, Mobil Oil objected to evidence showing that employees of Mobil Oil and Mobil Pipe Line jointly decided to leave unlocked the gates in the fence surrounding the metering station (App. 324), and to testimony concerning the method of discharging water and LPG that is now followed at Mobil Oil’s new Spindletop facility. The general rule in both the Texas and the federal courts is that evidence of subsequent repairs or modifications is not admissible, owing both to the strong policy favoring remedial measures and to the danger that the jury may draw an unwarranted inference that the repairs or modifications are an admission of negligence. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99 (Tex.1953); Eastern Airlines, Inc. v. American Cyanamid Co., 5th Cir. 1963, 321 F.2d 683. Such evidence is admissible, however, under a proper limiting instruction, to resolve a dispute between the parties as to whether the defendant exercised control over the premises in question. McCormick, Evidence § 275 (2d ed. 1972). One of Mobil Oil’s primary contentions in the instant case, both in the court below and on this appeal, has been that it had no connection with the operation of the metering station. Evidence that its employees participated in the decision to leave the gates unlocked was therefore relevant to the disputed issue of control of the metering station premises; and, in our view, was properly admitted under the trial court’s limiting instruction (App. 325). Evidence of procedures employed at the Spindletop facility could, however, have no bearing on that issue, because the Spindletop station is wholly separate from the Beaumont metering station and was not completed until after the occurrence in question. But a thorough study of the record convinces us that any error in the admission of this evidence was harmless.

II.

Gross Negligence of Mobil Pipe Line In answer to special interrogatories, the jury found that Mobil Pipe Line Company was grossly negligent in five respects, each of which was a proximate cause of Woolard’s death:

(1) In locating an office building on the premises of the metering station with window unit air conditioners, a water heater with an open flame, and a non-explosion-proof telephone
(2) In actively furnishing inaccurate dispatch information under the circumstances
(3) In discharging water and gas into the atmosphere
(4) In building, and maintaining the four-inch line used to bleed off water followed by LPG
(5) In requiring Woolard, a novice at this type of operation, to work without providing him a flare system to be used exclusively by the metering station.

We are compelled to reject these findings. The first three set out above were clearly insufficient predicates for awarding exemplary damages. First, even assuming that the presence of the air conditioners, water heater, and non-explosion-proof telephone was evidence of gross negligence on Mobil Pipe Line’s part, the record contains not a shred of evidence suggesting that any of these devices caused the explosion and fire. A Pipe Line employee testified that when he arrived at the metering station shortly after the explosion, some grass and a sample building on the premises were on fire, but the office building containing the air conditioners, water heater, and telephone was not burning. Moreover, appellees’ expert witness testified that if these devices had been the source of ignition, the office building probably would have exploded. Apart from whether Mobile Pipe Line was grossly negligent in maintaining the equipment in the office building, then, its conduct in this respect was clearly not a proximate cause of Woolard’s death.

Secondly, Mobil Pipe Line cannot, under Texas law, be held liable for the gross negligence, if any, of its dispatcher in “actively furnishing inaccurate dispatch information.” Texas law permits the award of exemplary damages against a corporation only if the grossly negligent employee is a “vice principal,” a category including: (1) corporate officers, (2) employees authorized to hire and fire, (3) employees performing “nondelegable” corporate duties, and (4) department or division managers. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (Tex.1934); LeJeune v. Gulf States Utilities Co., 410 S.W.2d 44 (Tex.Civ. App.—Beaumont, 1966, writ ref’d n. r. e.); Wooley v. Southwest Portland Cement Co., 5th Cir. 1959, 272 F.2d 906. There is nothing to suggest that the dispatcher had sufficient managerial authority to make him such a vice principal, and Mobil Pipe Line consequently may not be held liable for his alleged gross negligence.

Thirdly, the finding that Mobil Pipe Line was grossly negligent in “discharging water and gas into the atmosphere” is not a proper basis of liability. The discharge of the LPG is the very accident complained of. It was not the purpose of the purging operation to discharge water and LPG into the atmosphere ; indeed, Mobil Pipe Line had taken measures (including an arrangement to use the refinery flare system and the employment of a dispatcher to warn the men of the arrival of the interface) to avoid such an accident. A finding that an accident occurred is by itself insufficient to impose liability upon a defendant for gross negligence or even for ordinary negligence. There must be a finding that the defendant’s conduct caused the accident.

The last two jury findings set out above do not satisfy the strict Texas requirement for proof of gross negligence. In Sheffield Division, Armco Steel Corp. v. Jones, 376 S.W.2d 825, (Tex.1964), the Texas Supreme Court reaffirmed the definition of gross negligence first stated in Missouri Pacific Railroad Co. v. Shuford, 72 Tex. 165, 10 S.W. 408 (1888):

Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it. (Emphasis supplied).

In Sheffield the deceased was killed when an electrical spark ignited gas in a machine he had been ordered by his supervisor to inspect. The procedure established by the employer for removing gas from the machine before inspection had proven inadequate. The deceased’s supervisor knew that gas was present when he ordered the deceased to inspect the machine, but assured the deceased that it was safe to begin the inspection nevertheless. The Supreme Court held that this evidence did not warrant a finding of gross negligence, pointing to the existence of admittedly inadequate safety measures. In the court’s view, the “evidence failed to meet the requirement that there be an entire want of care so as to raise the belief that the acts complained of were the result of a conscious indifference to the rights or welfare of others. There does not appear to be an indication of willfulness, wantonness, or malice.” 376 S.W.2d at 832.

In the wake of Sheffield, Texas Courts of Civil Appeals have decided several cases which illustrate the stringent requirements of the Texas concept of gross negligence. Armstrong v. Texas Power & Light Co, 399 S.W.2d 922 (Tex.Civ.App.—Tyler, 1966, writ ref’d n. r. e.), for example, arose out of the electrocution of a utility company lineman engaged in the removal of a charged wire from a utility pole near a highway. The job required that the wire be placed across the highway temporarily. In clear violation of company safety regulations, the deceased’s foreman failed to post a flagman to stop oncoming cars; a car drove into or across the line, suddenly bringing it into fatal contact with the deceased. The Court of Civil Appeals held that this evidence failed to demonstrate that the foreman acted with a conscious disregard of the deceased’s safety.

In Loyd Electric Co. v. DeHoyos, 409 S.W.2d 893 (Tex.Civ.App.—San Antonio, 1966 writ ref’d), an employee was killed while inspecting aircraft fuel pumps. The pumps were mounted on a stand, under which were placed drip pans to catch highly volatile aircraft fuel. In close proximity to the drip pans were electrical connections with clamps that were described at trial as not being of the safest variety available. A spark from the faulty connections ignited the fuel in the drip pans, killing the employee. The court held that, although the employer failed to use ordinary care to avoid such an accident, the evidence did not reveal an entire want of care and therefore there was no gross negligence.

Finally, in Thomas v. T. C. Bateson Co., 437 S.W.2d 386 (Tex.Civ.App.—Dal-las 1969, writ ref’d n. r. e.), a construction worker fell four floors to his death when a cement buggy he was operating slipped off a ramp, which was only two inches wider than the wheel base of the buggy. The ramp was covered with wet concrete, and the employer had furnished no guard rails or other protective devices. The employee was a novice at this type of work, and had made only two trips up and down the ramp at the time of the accident. Nevertheless, the court, relying on Sheffield, supra, held that gross negligence had not been established. See also Stephens v. Dunn, 417 S.W.2d 608 (Tex.Civ.App.—Tyler, 1967, no writ) (statement by driver of truck which had struck and killed employee that “the son of a bitch is better off dead than he would be alive”, held not to evidence intent or conscious disregard for the safety of the deceased workman).

As these cases indicate, the Texas view of gross negligence contemplates something just short of intentional wrongdoing. Indeed, the summary contained in 13 Tex.Jur. § 133 and quoted approvingly in Sheffield, supra, states that recovery of exemplary damages requires a showing, not merely that defendant could have or ought to have foreseen the injury, but that “he acted intentionally or willfully or with that degree of ‘gross negligence’ which approximates a fixed purpose to bring about the injury of which Plaintiff complains.” The Texas standard demands both advertence to an unreasonable risk of harm to the plaintiff and an entire want of care (not merely a failure to take reasonable precautions) to avoid harm to the plaintiff.

Appellees cite only one instance in which a plaintiff in a case like the one at bar has carried the seemingly impossible burden imposed by this view of gross negligence. In Phillips Oil Co. v. Linn, 5th Cir. 1952, 194 F.2d 903, an employee was killed while operating a sandblasting machine attached to a hose labeled “H.P. Air” (meaning “high pressure air”). In fact, the hose contained high pressure gas, and a spark thrown by a particle of sand caused the gas to explode. The foreman of the deceased workman had known for some time that the hose was mislabeled, and prior to the accident the foreman had written “gas” on the line in soapstone. By the time of the accident, however, the soapstone marking had worn off (the foreman testified that he had expected it to wear off), leaving only the deceptive label “H.P. Air.”

This court’s holding that the foreman was grossly negligent was fully consistent with the Texas cases. As witnessed by his half-hearted effort to correct the label on the hose, the foreman recognized the almost inevitable consequences of attaching a sandblasting machine to the gas line. But by the same token, the precautions he took to correct the defective label — the soapstone marking which he knew would wear off — were not “precautions” at all. They were, in short, an “entire want of care.”

Phillips, however, is not this ease. True enough, the end of the four-inch line in the instant case extended only a few feet outside of the fence surrounding the metering station, a fence that was locked and that was difficult to climb. The water heater, telephone, and air conditioners in the office building were possible sources of ignition; and it was known that the dispatcher could give an estimate of the arrival time of the LPG that might be inaccurate by as much as thirty minutes. Moreover, the jury could reasonably have found that Woolard was a novice at the purging operation, and was required to do the work without having exclusive access to an adequate flare system. From all of this, the jury could reasonably conclude that Mobil Pipe Line Company failed to exercise ordinary care to avoid harm to Woo-lard. It may even be assumed that Mobil Pipe Line, through its managerial personnel, knew that Woolard was being subjected to an unreasonable risk. But the obstacle to recovery of exemplary damages in this case is the fact that Mobil Pipe Line had taken measures to avoid such a tragedy by arranging for the use of the refinery flare system in emergencies and by employing dispatchers to calculate the estimated arrival time of the LPG at the metering station. However inadequate these steps may appear in retrospect, they are nevertheless sufficient to negate a finding of an entire want of care on the part of Woodlard’s employer. Accordingly, the award of exemplary damages against Mobil Pipe Line Company is reversed.

In conclusion, we affirm the judgment against Mobil Oil Corporation, and reverse the judgment against Mobil Pipe Line Company.

Affirmed in part; reversed in part.

      . Pointing to the fact that the lease calls for a consideration of only one dollar per year, appellees urge us to treat the lease as a mere formality. We decline, however, to base our decision on this ground.

      . It is without dispute that Woolard’s employer, Mobil Pipe Line, is a subscriber to the Texas Workman’s Compensation Act, Tex.Rev.Civ.Stat.Ann. Art. 8306, and that benefits under that Act liave been paid to his survivors. Under Texas law, therefore, Woolard’s survivors can recover from Mobil Pipe Line only if Mobil Pipe Line was grossly negligent. Id. § 5.

      . Mobil Oil’s refinery flare system, whereby petroleum products could be safely disposed of, was available for the metering station’s use in emergencies; there was no flare system for the exclusive use of the metering station. The testimony suggested that the refinery flare system was inadequate to handle the quantity of water that would have to have been discharged through it to insure the safe discharge of the LPG (App. 212; 369), and that the men in the metering station knew that the refinery flare system was inadequate for this purpose. (App. 369).

      . But see Fergeson v. National Bank of Commerce, 174 S.W.24 1015 (Tex.Civ.App.—Galveston 1943, no writ).

      . Appellees rely on several cases arising under the Texas guest statute, to support the verdict against Mobil Pipe Line. In Sheffield, supra, the Texas Supreme Court stated that such cases do not govern suits against employers for exemplary damages for the death of deceased employees, because exemplary damages are compensatory in nature in guest statute suits, but are considered punitive in nature in such cases as the instant one. 376 S.W.2d at 831.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Napoleon MARYLAND, Jr., Defendant-Appellant.
    No. 72-2161.
    United States Court of Appeals, Fifth Circuit.
    April 2, 1973.
    As Amended on Denial of Rehearing May 24, 1973.

      Robert P. McLeod, Paul Henry Kidd, Monroe, La., for defendant-appellant.
    Donald E. Walter, U. S. Atty., L. Edwin Greer, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before BELL and THORNBERRY, Circuit. Judges and GROOMS, District Judge.
   PER CURIAM:

Appellant was convicted below of one count of passing counterfeit note with intent to defraud in violation of 18 U.S. C. § 472 and of one count of knowingly possessing five counterfeit notes with intent to defraud in violation of the same statute. On appeal he argues that the district court erred in admitting five counterfeit bills as evidence against him on the possession count because the bills were obtained by an unlawful search. We affirm.

On the evening of April 4, 1969, a deputy of the Bienville Parish Sheriff’s Department received in his patrol car a radio request from the Ouachita Parish Sheriff’s Department to stop a certain described Cadillac automobile and to hold its occupants for questioning about passing counterfeit notes. The deputy sighted the Cadillac, stopped it, and took its occupants, one of whom was appellant, in his patrol ear to the Bienville Parish Courthouse. Appellant rode on the left side of the rear seat behind the driver. After taking appellant and his companions into the Courthouse, the deputy returned to his police vehicle and searched it. Pressed between the rear seat and the back cushion on the left hand side, he found five counterfeit bills which were used as evidence against appellant below and whose admissibility appellant now contests.

ON PETITION FOR REHEARING

Appellant urges that there was no probable cause to arrest him without a warrant and that the search which produced the bills was therefore not incident to a lawful arrest. The Government argues that appellant had no standing to challenge the deputy’s search of the police vehicle he was using after appellant had exited from it and alternatively that there was probable cause for the arrest.

In order to have standing to challenge the search, “one must have been a victim of the search and seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search and seizure directed against someone else.” Jones v. United States, 1960, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697. Corollaries to this rule are that one has no standing to challenge the search of an area or thing he has voluntarily abandoned and that “[p]olice pursuit or the existence of a police investigation does not of itself render an abandonment involuntary.” United States v. Colbert, 5th Cir. 1973, en banc, 474 F.2d 174 at 176 [1973]. The Government’s first argument is that appellant voluntarily abandoned the counterfeit bills in the police car when he exited from it without the bills and therefore had no standing to object to the subsequent search by which they were discovered.

We agree that the deputy’s search of the police vehicle after appellant had exited from it was not directed against appellant within the meaning of Jones and did not invade any area in which appellant had a reasonable expectation of privacy. Further, we agree that if appellant’s arrest was lawful, the abandonment was clearly voluntary. As noted above, a lawful arrest does not in itself amount to such compulsion as will render an otherwise voluntary abandonment involuntary. See Abel v. United States, 1960, 362 U.S. 217, 240-241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668; United States v. Colbert, supra; United States v. Edwards, 5th Cir. 1971, 441 F.2d 749; Lurie v. Oberhauser, 9th Cir. 1970, 431 F.2d 330. The Government’s standing argument does not, however, eliminate the necessity to determine the legality of the arrest, for a loss of standing to challenge a search cannot be brought about by unlawful police conduct. Fletcher v. Wainwright, 5th Cir. 1968, 399 F.2d 62; Work v. United States, 1957, 100 U.S.App.D.C. 237, 243 F.2d 660; Williams v. United States, Cir. 1956, 99 U.S.App.D.C. 161, 237 F.2d 789. If there is a “nexus between . lawless [police] conduct and the discovery of the challenged evidence” which has not “ ‘become so attenuated as to dissipate the taint,’ ” then the evidence should be suppressed. Fletcher v. Wainwright, supra, 399 F.2d at 64. The nexus between the arrest and the discovery of the evidence is strong in this ease, for the arrest obviously motivated appellant to attempt to conceal the bills in the police vehicle.

We turn, then, to the question of whether appellant’s arrest was illegal for want of probable cause. On the evening of the arrest the owner of a liquor store called The Tree discovered two counterfeit twenty dollar bills in his cash register. In a complaint which he filed immediately with the Ouachita Parish Sheriff’s Department he stated his belief that members of a group of four Negroes, two men and two women, who were travelling in a “black and white vinyl over green Cadillac” had passed the bills. The Ouachita Parish Sheriff’s Department broadcast a radio message to other law enforcement agencies in the area describing the suspects and the automobile, stating that they were suspected of passing.the counterfeit bills, and requesting other law enforcement officers to arrest them. A Bienville Parish Deputy Sheriff received this radio request and complied with it by arresting appellant and his companions, who were travelling in the distinctively described automobile, only a short time after the crime had occurred.

The probable cause concept concerns probabilities. “These are not technical; they are the factual and practical considerations of every day life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 1949, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879. We think the information given to law enforcement authorities by the victim of the crime immediately after its occurrence was clearly sufficient to supply probable cause for appellant’s arrest. See United States v. Trotter, 7th Cir. 1970, 433 F.2d 113, cert. denied 401 U.S. 942, 91 S.Ct. 950, 28 L.Ed.2d 224. Further, the Deputy Sheriff who actually made the arrest was entitled to rely on the radio bulletin which originated from the Ouachita Parish Sheriff’s Department. United States v. Horton, 1971, 142 U.S. App.D.C. 225, 440 F.2d 253; see Whitely v. Warden, 1971, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306.

Since the warrantless arrest of appellant was valid, it could not suspend the general rule that one has no standing to object to the search of seizure of property he has voluntarily abandoned. Concluding that this rule applies in the instant case, we hold that appellant had no standing to challenge the deputy’s search of the police vehicle and that the bills discovered there were properly admitted into evidence.

Accordingly, the judgment of the district court is

Affirmed.


author: VAN DUSEN, Circuit Judge.

text:
    William P. BIGGIN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 72-1120.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 13, 1973.
    Decided May 23, 1973.

      David Kairys, Kairys & Rudovsky, Philadelphia, Pa., for petitioner.
    Charles F. Sandoval, Criminal Div., Dept, of Justice, John L. Murphy, Chief, Administrative Regulations Section, Criminal Div., George W. Masterton, Dept, of Justice, Washington, D. C., Carl J. Melone, U. S. Atty., Gary Tilles, Asst. U. S. Atty., Philadelphia, Pa., for respondent.
    Before VAN DUSEN and ADAMS, Circuit Judges, and BRODERICK, District Judge.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This petition was filed by William Biggin, a Canadian citizen, who last entered the United States on August 12, 1968, for a temporary period of time as a nonimmigrant to study for his doctorate in biology at Temple University. This case arises under a petition to review an order of the Board of Immigration Appeals (hereafter the Board), as provided for by the Naturalization and Immigration Act of 1952, 8 U.S.C. § 1105a, as amended (1961).

The Board dismissed the petitioner’s appeal insofar as it challenged the Special Inquiry Officer’s adjudication of deportability, but amended her order of involuntary departure (see note 3 infra) The Special Inquiry Officer found that the “allegations of fact . . . charged in the order to show cause [why Mr. Biggin should not be deported] have been established by clear, unequivocal and convincing evidence” and it had been “established . . . that [Mr. Biggin] had not received authorization from the Immigration and Naturalization Service to remain [in this country] as a nonimmigrant beyond March 5, 1971.”

The issue before us is whether the Board properly concluded that the petitioner, Mr. Biggin, was deportable for overstaying his authorized time as a nonimmigrant student. The petitioner concedes that he failed to register as a student at Temple for the second semester of the 1970-1971 academic year. However, he claims that this failure to register directly resulted from a series of concerted actions on the part of federal, state and local officials in Philadelphia, who conspired to prevent him from registering.

Although 8 C.F.R. § 214.2(f)(7) provides that decisions on an application for an extension of a stay made pursuant to 8 C.F.R. § 214.2(f)(5) shall be in the sole discretion of the District Director and nonappealable, the petitioner contends that the Special Inquiry Officer was required under 8 U.S.C. § 1252 (b)(3) and 8 C.F.R. § 242.16(a) to allow him the opportunity to present evidence that would have established his allegation of a conspiracy and that the failure to allow him to do so was a denial of due process. But see Matter of Sourbis, supra at note 4.

After petitioner entered the United States August 12, 1968, his authorized stay was subsequently extended to June 30, 1970. On February 3, 1971, the District Director notified Mr. Biggin that his application for extension of a temporary stay was denied, because “you failed to pursue your course of study at Temple University, leading to a doctorate in Biology, during the first semester of the 1970-71 academic year and failed to register for the second semester of that year” (Exhibit 2, N. T. 216). The District Director authorized petitioner to depart voluntarily prior to March 5, 1971.

When petitioner failed to voluntarily depart the country, an Order to Show Cause was issued on March 8, 1971, charging that he was deportable for remaining longer than permitted in violation of 8 U.S.C. § 1251(a)(2). A hearing was set on this order for March 19, 1971, which, on petitioner’s request, was postponed until April 2, 1971. At that time, the Special Inquiry Officer refused to delay the deportation proceeding until completion of a civil suit Mr. Biggin had brought in the United States District Court for the Eastern District of Pennsylvania.

The civil suit was an action by Freedom Press, Inc., Judith Biggin (petitioner’s wife), the petitioner, William Biggin, and others against Frank Rizzo, individually and as former Police Commissioner, filed November 17, 1970 (Civil Action No. 70-3175). On April 1, 1971, the district court directed that all motions filed by Mr. Biggin in that action would be held in abeyance pending the outcome of a hearing to be held at Temple University on whether the petitioner had been improperly denied the opportunity to register as a student.

At the deportation hearing, counsel for petitioner also sought to introduce evidence that allegedly would have shown that the District Director’s denial of the extension application was arbitrary. Petitioner offered a Supplemental and Amended Complaint, which added Temple University, certain of its officials, and the present Police Commissioner of Philadelphia to his suit as an offer of proof (N.T. 131). However, the Special Inquiry Officer refused to receive into evidence any of the matters set out in that complaint, holding that she was without jurisdiction to review determinations of the District Director (N.T. 137).

Mr. Biggin sought reconsideration of the District Director’s decision by letter of April 5, 1971, in which he again alleged that the denial of an extension was based on incorrect information. He also referred to the then pending civil suit he had brought in the federal district court for restoration of his student status (Exhibit 4, N.T. 287-88). The District Director adhered to his original decision in a letter dated April 6, 1971, with the stipulation that “if a court order results in restoring [Mr. Biggin’s] student status, I shall, if you do not, see to it that the deportation proceedings are reopened so that the new developments can be considered” (Exhibit 5, N.T. 289).

The Board affirmed the deportation by an opinion filed August 31, 1971. See note 2, supra. In that opinion it noted:

“[T]he District Director committed himself not to enforce respondent’s departure pending conclusion of the lawsuit and to see to the reopening of the deportation proceedings if the respondent should prevail in court (Ex. 5). Under these circumstances, we fail to see how respondent’s position has been prejudiced by the institution and prosecution of these deportation proceedings.”

Subsequently a hearing was held in the district court on November 3, 1971, on a motion for preliminary injunction, seeking a decree that would have directed Temple to restore Mr. Biggin as a graduate doctoral student. This motion was denied by order of January 11, 1972. Freedom Press, Inc. and Judith Biggin, William Biggin, et al. v. Frank Rizzo, et al., Civ. Action No. 70-3175 (E.D. Pa.1972), aff’d, 474 F.2d 1339 (3d Cir. 1973). In the above-cited district court memorandum opinion accompanying the January 11, 1972, order, Judge Weiner stated:

“[W]e are impelled to conclude that the determination to refuse to accépt Biggin’s registration was based upon scholastic grounds and did not arise out of arbitrariness, bad faith or capriciousness.
“We believe that the combination of facts we have noted amply support the conclusion that Biggin was given numerous opportunities to retain his scholastic standing but he deliberately refused to avail himself of these opportunities.”

The scope of our review of the administrative proceeding is limited, and restricted to the question of whether the manner in which the deportation proceedings were conducted was arbitrary, capricious or illegal. Cf. Astudillo v. Immigration and Naturalization Service, 443 F.2d 525 (9th Cir. 1971) ; Pilapil v. Immigration and Naturalization Service, 424 F.2d 6 (10th Cir. 1970). If the proceedings comported with the requirements of due process, our inquiry is ended. See Pilapil, supra.

Petitioner’s most troublesome contention on appeal is that the denial of an extension by the District Director was based on erroneous factual information and the Special Inquiry Officer deprived him of due process when his offer to introduce evidence on this point was denied. However, the District Director’s subsequent stipulation that he would reopen the deportation proceedings in the event Mr. Biggin proved successful in the district court, Civil Action No. 70-3175, renders this point moot. Compare Glorioso v. Immigration and Naturalization Service, 386 F.2d 664 (7th Cir. 1967).

Our review of the facts and the record as presented on appeal discloses no abuse of discretion by the District Director and we cannot, on an examination of the record as a whole, say that the action of the Special Inquiry Officer was arbitrary, capricious or illegal.

The August 31, 1971, Board order will be affirmed.

      . 8 U.S.C. § 1105a provides, inter alia:

      “(a) The procedure prescribed by, and all the provisions of sections 1031 to 1042 of Title 5, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title or comparable provisions of any prior Act, except that. . . .”

      . In Re William Biggin,-I. & N. Dec. -, [ AXXXXXXXX ] (BIA 1971).

      . The Oral Decision of the Special Inquiry Officer entered April 6, 1971, is transcribed at N.T. 102-105. The order of involuntary departure was withdrawn by the Board in its decision and the petitioner has been granted the privilege of voluntary departure. In Re William Biggin, supra at 5.

      . 8 C.F.R. § 214.2 (f) (7) provides:
      “The applicant shall be notified of the decision and, if the application is denied, of the reason therefor. No appeal shall lie from the decision.”
      See Matter of Sourbis, 11 I. & N.Dec. 335 (BIA 1965).

      . 8 C.F.R. § 214.2(f)(5) provides, inter alia:

      “A nonimmigrant who has a classification under 101(a) (15) (F) [8 U.S.C. 1101(a) (15) (F)] of the Act may be granted extensions of stay in increments not to exceed one year each if he establishes that he is currently maintaining student status and is able and in good faith intends to continue to maintain such status for the period for which the extension is requested.”

      . 8 U.S.C. § 1252(b) (3) provides :
      “The alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government.”

      . 8 U.S.C. § 1251(a)(2) provides:
      “(a) Any alien in the United States shall, upon the order of the Attorney General, be deported who—
      “(2) entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States. . . .”

      . The complaint alleged, inter alia, that “Frank Rizzo, his agents and employees, and others, for the purpose of censoring and terminating publication of the FREE PRESS, and chilling and punishing the political activities of the individual Plaintiffs, have, under color of State law, subjected Plaintiffs to . illegal and unconstitutional practices. . . .”

      . Permission to file the Supplemental and Amended Complaint was granted by the district court on April 29, 1971, and it was filed May 7, 1971.

      . In Re William Biggin, supra at 4-5.

      . It is noted that petitioner has had the opportunity to ask for a final hearing in this case since February 26, 1973, when the certified judgment was sent to the district court.

      . Freedom Press, Inc., supra Memorandum at 7-8.

      . AVe need not, on these facts, consider whether there would have been a denial of due process had the District Director not made his stipulation, or had the petitioner not sought relief in the courts prior to the conclusion of the deportation proceeding.


author: SOBELOFF, Senior Circuit Judge:

text:
    UNIVERSAL FILM EXCHANGES, INC., Appellee, v. Bernard LUST, trading as Sydney Lust Theatres, and Independent Theatres, Inc., Appellant.
    No. 72-2466.
    United States Court of Appeals, Fourth Circuit.
    Argued April 2, 1973.
    Decided June 11, 1973.

      Robert B. Sher, Washington, D. C. (Robert E. Sharkey, Baltimore, Md., on brief), for appellant.
    J. Cookman Boyd, Jr., Baltimore, Md. (Rob Ross Hendrickson, Baltimore, Md., on brief) for appellee.
    Before SOBELOFF, Senior Circuit Judge, and FIELD and WIDENER, Circuit Judges.
   SOBELOFF, Senior Circuit Judge:

The question presented in this appeal is whether the District Court properly denied a Rule 60(b)¡(l), F.R.Civ.P., motion to vacate a summary judgment entered against the appellant, Independent Theatres, Inc. Rule 60(b)(1) reads, in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect * *

Appellant’s attorney contends that although his manner of advocacy in this case well might be termed negligent, it nonetheless should be treated as excusable neglect. To do otherwise, he argues, would impose upon his client a $25,000 judgment on a claim to which he insists there is a meritorious defense.

The issue thus posed presents us with a serious dilemma. The more Boeotian and flagrant we deem counsel’s conduct in the case, the greater is his professional negligence; correspondingly, the behavior becomes less “excusable” under Rule 60(b)(1). On the other hand, the more indefensible the attorney’s behavior, the greater is one’s natural sympathy for the ultimate victim — the client. Yet the rule is quite specific and unless there is found mistake, inadvertence, surprise or excusable neglect, relief cannot be granted regardless of our sympathies.

Factual Background

This litigation arose out of the alleged failure of Independent Theatres, Inc., a booking agent of films, to pay Universal Film Exchanges, Inc., a distributor of films, for the rental of films procured by it for Sydney Lust Theatres, a small movie house chain. The original complaint filed in the District Court for the District of Maryland named both Bernard Lust, trading as Sydney Lust The-atres, and Independent as defendants.

Stanley Frosh, Lust’s attorney, filed answers to the complaint and interrogatories for both defendants. The answers denied that Lust had exhibited Universal films, denied that Independent had entered into any contracts with Universal for the exhibition of motion pictures and denied that either defendant owed any sum of money to the plaintiff.

Independent’s contention in its 60(b)(1) application diametrically contradicts the answer filed on its behalf. We are now told that Independent had entered into a contract with Lust whereby it agreed to obtain films for Lust but was to undertake no personal obligation to pay any rental fees for the films— monetary responsibility would rest with Lust. This information was relayed in a letter to a group of film distributors, including Universal, on Independent stationery over the signature of Bernard Lust. Thus, Independent now claims that any unpaid bills resulting from films rented by it for Lust Theatres are the sole obligation of the theatre management.

The potential conflict of interest between the two defendants was recognized early in the litigation by Harley Davidson, Independent’s president. As a consequence, he retained Robert E. Sher, an attorney, to provide his corporation with separate representation and counsel.

Initially, Sher contacted Universal’s attorney and explained his client’s position — that Lust alone was liable for any unpaid film rentals. After an exchange of correspondence. Universal’s attorney wrote the following to Sher on December 7, 1971:

* * * In the light of obvious confusion arising out of the formal appearance and pleadings filed in behalf of both defendants by Stanley Frosh, Esquire, under date of November 22nd, containing a denial that either defendant is indebted to our client in any amount (Mr. Frosh having told us by phone yesterday that he was unaware of the assumption of responsibility by the defendant Lust), we must defer consideration of any change in parties until promised clarification is received.
Perhaps you have been, or will be, in touch with Mr. Frosh, but in any event, please understand that we have no desire even to appear uncooperative. When the posture of Mr. Lust becomes more clear, it may very well be that we can accede to your request.

Mr. Sher now tells the court that on the basis of this message he assumed that Universal would work things out with Lust and that he could remain a passive bystander. We agree with counsel for the appellee that the letter meant what it said, namely, that it was the obligation of attorneys Sher and Frosh to clear up the matter.

Sher also contacted Frosh, who allegedly assured him that Independent had nothing to fear since Lust would pay the debt in the near future and the matter “in all likelihood”, would never come to trial. Additionally, Frosh is said to have promised to keep Sher abreast of all developments in the case. Relying on these assurances, Mr. Sher tells us, he deliberately chose not to enter an appearance, chose not to file an answer that would have made known to the court his client’s defense, and allowed Frosh to continue on as Independent’s sole counsel of record. He followed this course of action with full knowledge that service of motions and documents and notice of the entry of orders and judgments are given only to a party’s attorney of record. See Rules 5(b) and 77(d), Federal Rules of Civil Procedure.

Months passed and Sher heard from no one. Nonetheless, he continued heedlessly to assume that all was well. It was not. Universal’s attorneys filed motions for summary judgment against both defendants and a hearing date of April 7, 1972, was set. Notice was sent to Frosh — the only counsel of record for both defendants. Frosh failed to appear at the hearing, sending instead to Universal’s counsel the following letter, which although dated April 6, 1972, did not reach counsel’s office until April 10, three days after summary judgment had been granted:

I am sorry for the long hiatus in our correspondence. I am not opposing your motion for summary judgment and you may so advise the Court on the hearing this week.

In the absence of a contesting party, Judge Northrop signed two orders granting summary judgment, one against Bernard Lust and the other against Independent, each for approximately $25,000. Notice and copies of the judgments were sent Frosh as the attorney for both defendants. However, Frosh never informed either his putative client, Independent, or Sher of the judgments. It was not until July 11 that Sher learned of the entry of summary judgment against his client and filed a motion for relief from the judgment.

A hearing was held by Judge Northrop on September 22, 1972, and all parties were heard, including Sher and Frosh; Judge Northrop then held that notice of the motion and entry of the summary judgment were properly served on the only attorney who had entered an appearance for Independent. He further held that the facts presented to him did not constitute mistake, inadvertence, surprise or excusable neglect — the grounds for granting a Rule 60(b)(1) motion. This appeal followed and is limited to the single narrow question: Did the District Court abuse its discretion in denying appellant’s motion for relief due to mistake, inadvertence, surprise or excusable neglect pursuant to Rule 60(b)(1)? We hold that it did not.

Standard To Be Applied

When a Rule 60(b)(1) motion is made, the District Court denies or grants relief based on its discretionary appraisal of the particular facts of the case. The appellant, however, contends that where a movant possesses a meritorious defense, doubt, if any, should be resolved in favor of granting the motion to set aside the judgment in order to permit the case to be resolved on its merits. See, e. g., Tolson v. Hodge, 411 F.2d 123 (4 Cir. 1969); Tozer v. Charles A. Krause Milling Co., 189 F.2d 242 (3 Cir. 1951). We do not disagree with this statement as a general proposition of law. But the cases do not imply nor should they be read to imply that a District Court will or should always grant relief from a default or summary judgment at the behest of a Rule 60(b)(1) movant.

It is not enough for the moving party to argue that a meritorious defense could now be presented. The proper standard governing these cases is one that is in the conjunctive, not the disjunctive. To prevail, the Rule 60(b)(1) movant must demonstrate that he has a meritorious defense and that arguably one of the four conditions for relief applies — mistake, inadvertence, surprise or excusable neglect.

Standard Applied

We agree with the District Court that Mr. Sher’s reliance on other parties to the action to keep him informed as to the progress of the case and Sher’s deliberate decision not to enter an appearance or file an answer enumerating his client’s defenses were “grossly negligent” and cannot be deemed excusable neglect under Rule 60(b)(1). In this court appellant’s counsel has sought to evoke sympathy for his client, Independent; but, unfortunately for Independent, under our adversarial system of justice, the client must pay, at least initially, the penalty of his counsel’s neglect. The Supreme Court has said in upholding a District Court’s dismissal of an action for the failure of plaintiff’s attorney to appear at a pretrial conference after other instances of dilatory behavior:

There is certainly no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have “notice of all facts, notice of which can be charged upon the attorney.” Smith v. Ayer, 101 U. S. 320, 326, 25 L.Ed. 955.

Link v. Wabash Railroad Co., 370 U.S. 626, 633-634, 82 S.Ct. 1386, 1390, 8 L.Ed. 2d 734 (1962).

The Ninth Circuit employed a similar rationale when it refused to set aside a summary judgment pursuant to a Rule 60(b)(1) motion. In that case the attorney did not appear or prepare for a hearing because of his vacation. See Smith v. Stone, 308 F.2d 15 (9 Cir. 1962).

Our decision does not leave a client without remedy against the negligent attorney. Lawyers are not a breed apart. Where damages are inflicted upon innocent clients by other professionals, such as doctors or dentists, the remedy is a suit for malpractice. The same is true where damage is inflicted upon a client through an attorney’s professional negligence. Indeed, the Supreme Court explicitly pointed out in Link, supra, 370 U.S. 626, 82 S.Ct. 1386 at n. 10, that if the attorney’s conduct was substantially below what was reasonable under the circumstances, the client’s remedy was a suit for malpractice. See also Schwarz v. United States, 384 F.2d 833 (2 Cir. 1967).

Accordingly, the judgment of the District Court is hereby affirmed; and it is further ordered that the Clerk send a copy of this opinion directly to Mr. Harley Davidson, President of Independent Theatres, Inc.

Affirmed.

      . It is worth noting that all the cases cited by the appellant as examples of error in refusing to grant a Rule 60(b)
      (1) motion involved default judgments, which are not, as are summary judgments, decisions on the merits.