author: MERRILL, Circuit Judge: WILLIAM P. GRAY,

text:
    UNITED STATES of America, Plaintiff-Appellant, v. David Michael PRAZAK, Defendant-Appellee.
    No. 73-2295.
    United States Court of Appeals, Ninth Circuit.
    July 11, 1974.

      Donald F. Shanahan, Asst. U. S. Atty., (argued), San Diego, Cal., for plaintiff-appellant.
    Kendall M. Squires (argued, San Diego, Cal., for defendant-appellee.
    Before MERRILL and TRASK, Circuit Judges, and GRAY, District Judge.

       Honorable William P. Gray, United States District Judge for the Central District of California, sitting by designation.

   OPINION

MERRILL, Circuit Judge:

The United States appeals from an order of the District Court granting appel-lee’s motion to suppress evidence consisting of certain zip guns obtained from appellee’s car.

Appellee had been stopped by two California highway patrol officers who tested him for drunken driving and then arrested him. Pursuant to highway patrol regulations, they gave appellee the choice of having his car impounded or parked and secured. Appellee asked that the car be moved to a parking space and left there. The car was moved as requested. To “secure” the car, one officer, without appellee’s request or consent, removed a sport coat from the rear seat, locked the car doors and opened the locked trunk to place the coat inside. When he opened the trunk, the officer saw a zip gun. He then searched the interior of the trunk and found six more.

The United States justifies the opening of .the trunk as a reasonable means of rendering the car and its contents secure, and thus encompassed within the request of the appellee. We agree.

By appellee’s request, the officer was placed in the position of doing for appel-lee that which appellee was incapacitated from doing for himself. Under these circumstances the proper test, in our view, is whether what the officer did can be said to have been what appellee himself reasonably would have done had he been able to act for himself. Placing the sport coat in the trunk rather than leaving it in view on the rear seat was an entirely reasonable method of rendering the car’s contents secure. As such it was encompassed within the request of appellee reasonably construed.

Reversed and remanded with instructions that the motion to suppress be denied, and for further proceedings.

WILLIAM P. GRAY,

District Judge (dissenting):

I would affirm the order of the District Court. As the self-appointed “agent” of the appellee, the officer easily could have ascertained what his “principal” wanted done with the sport coat. I would not interfere with the determination by the trial court that the entry into the trunk was unreasonable.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Jim CRIGGER et al., Members of Local Union 6028 of District 29, United Mine Workers of America, an unincorporated association, Appellants, v. ALLIED CHEMICAL CORPORATION, SEMET-SOLVAY DIVISION, a New York corporation, Appellee.
    No. 73-2407.
    United States Court of Appeals, Fourth Circuit.
    Submitted March 26, 1974.
    Decided Aug. 1, 1974.
    Harry G. Camper, Jr., Welch, W. Va. (Camper & Watson, Welch, W. Va., on brief), for appellants.
    John H. Tinney, Charleston, W. Va. (Spilman, Thomas, Battle & Klostermeyer, Charleston, W. Va., on brief), for ap-pellee.
    Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
   PER CURIAM:

The named appellants are members of Local Union 6028 of the United Mine Workers of America. In an attempt to secure certain graduated vacation pay benefits from their employer, Allied Chemical Corporation, alleging their entitlement thereto under the National Bituminous Coal Wage Agreement of 1971, they instituted appropriate grievance proceedings pursuant to the Agreement. Their claim was ultimately rejected by the umpire selected to arbitrate the dispute in the final step of the contractual five-tier grievance procedure. The Agreement provides that an umpire’s decision “shall be final.”

Dissatisfied with the umpire’s decision, appellants brought suit in the district court to have the decision vacated on the grounds that “said adverse decision of the umpire is discrimination [sic], erroneous, wrong, unlawful and in violation of their legal rights.” The district court, in a lengthy and considered opinion, granted Allied Chemical Corporation’s motion for summary judgment. Relying on the Steelworkers Trilogy, the district court correctly concluded that it could not review the merits of the umpire’s award; instead, review was limited to the narrower issues of whether the umpire’s decision “drew its essence” from the Agreement, whether there was evidence of fraud, deceit or breach of the union’s duty of fair representation, or whether the grievance procedure was a sham, substantially inadequate or substantially unavailable. Harris v. Chemical Leaman Tank Lines, 437 F.2d 167 (5 Cir. 1971); Amalgamated Butcher Workmen Local No. 641 v. Capitol Packing Co., 413 F.2d 668 (10 Cir. 1969); Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3 Cir. 1969); Safely v. Time Freight, Inc., 307 F.Supp. 319 (W.D.Va.1969), aff’d 424 F.2d 1367 (4 Cir. 1970).

We agree with the district court that the umpire’s decision must not be disturbed. Despite the catchwords employed by appellants to persuade us that the umpire’s decision is in fact reviewable — they claim, for example, that the grievance procedure was a “sham and substantially inadequate,” and that the decision amounted to “arbitrariness and capriciousness” — we must look to the substance of their claim. Having done so, we are convinced that their argument is simply that the umpire reached an incorrect result. While they argue that the umpire’s interpretation of the collective bargaining agreement was so incorrect as to amount to a dispensing of his own brand of industrial justice, we conclude that the district court correctly rejected this argument. No conclusion can be reached other than that the umpire made a careful, reasoned attempt to construe a hazy provision of the contract. As the Supreme Court stated in Enterprise Wheel and Car Co., supra, 363 U.S. at 599, 80 S.Ct. at 1362,

the question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.

. Accordingly, we dispense with oral argument and the judgment below will be affirmed for the reasons stated by the district court (367 F.Supp. 1133).

Affirmed.

      . The opinion of the district court is reported at 367 F.Supp. 1133.

      . United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ; United Steelworkers of America v. Enterprise Wheel & Car Co., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).


author: OPINION PER CURIAM:

text:
    In the Matter of Robert Lee BENEFIEL, Bankrupt. C. R. SHANNON and Jack Shannon, dba C. J. Shannon and Sons, Petitioners-Appellees, v. Robert Lee BENEFIEL, Bankrupt-Appellant.
    No. 73-1908.
    United States Court of Appeals, Ninth Circuit
    July 22, 1974

      Lloyd J. Webb, Webb, Pike, Burton & Carlson, Twin Falls, Idaho, for bankrupt-appellant.
    Paul M. Beeks, Kramer, Plankey, Smith & Beeks, Twin Falls, Idaho, for petitioners-appellees.
    Before MERRILL, KILKENNY and CHOY, Circuit Judges.
   OPINION

PER CURIAM:

The sole issue in this appeal is whether a petition for review of a referee’s decision was properly dismissed by the district court as out of time under the relevant statute, or whether, contrary to its holding, the district court under the statute possessed and ought to have exercised discretion as to whether to consider the petition despite its tardiness.

Appellee, a creditor, filed a petition to determine dischargeability of a debt. On December 4, 1972, following hearings, the referee entered a decree of nondischargeability. On December 15 the bankrupt’s petition for review of the referee’s decree was filed in the district court. The petition was dated December 13, and was placed in the mail on that day.

Appellee moved to dismiss the petition for review on the ground of untimeliness. The district court, applying § 39(c) of the Bankruptcy Act, 11 U.S.C. § 67(c), granted the motion.

Section 39(c) of the Bankruptcy Act, 11 U.S.C. § 67(c), provides in relevant part:

“(c) A person aggrieved by an order of a referee may, within ten days after the entry thereof or within such extended time as the court upon petition filed within such ten-day period may for cause shown allow, file with the referee a petition for review of such order by a judge * * *. * * * Unless the person aggrieved shall petition for review of such order within such ten-day period, or any extension thereof, the order of the referee shall become fined.”

The portion in italics was added by amendment in 1960. Act of July 14, 1960, Pub.L.No.86-662, 86th Cong., 2d Sess., 74 Stat. 528.

It is not disputed that the petition for review in this case was filed eleven days after entry of the referee’s order, as time is computed in applying this section. In terms of the statute, then, the petition was untimely and the referee’s order became final. Nevertheless, it is appellant’s position that the district court “had jurisdiction and discretion to consider the petition.”

Appellant relies mainly on Pfister v. Northern Illinois Finance Corp., 317 U. S. 144, 153, 63 S.Ct. 133, 87 L.Ed. 146 (1942), and cases following, especially England v. Stanley, 284 F.2d 700, 703 (9th Cir. 1960). However, the purpose of the 1960 amendments to § 39(c), supra, as shown by the legislative history, was to overrule Pfister and thus to lend certainty as to finality of referees’ orders. See, e. g., S.Rep.No.1689, 86th Cong., 2d Sess.; 1960 U.S.Code Cong. & Admin.News, vol. 2, at 3194-3195. See also St. Regis Paper Co. v. Jackson, 369 F.2d 136, 137-138 (5th Cir. 1966) ; 2 Collier on Bankruptcy ¶ 39.20 [3], [4.1] (1974). To the same effect are In re Charmar Investment Co., 475 F.2d 560, 563-564 (6th Cir.), cert. denied, 414 U.S. 823, 94 S.Ct. 123, 38 L.Ed.2d 56 (1973); Goff v. Pfau, 418 F.2d 649 (8th Cir. 1969), cert. denied, 398 U.S. 931, 90 S.Ct. 1830, 26 L.Ed.2d 97 (1970) ; In re Imperial “400” National, Inc., 391 F.2d 163, 168-169 (3d Cir. 1968).

Judgment affirmed.


text:
    MEREDITH CORPORATION, an Iowa corporation, Plaintiff-Appellant, v. HARPER & ROW, PUBLISHERS, INC., et al., Defendants-Appellees, Brian Sutton-Smith, an Individual, and Prentice-Hall, Inc., a Delaware corporation, Additional Defendants on Counterclaim-Appellants.
    No. 1228, Docket 74-1726.
    United States Court of Appeals, Second Circuit.
    Argued June 26, 1974.
    Decided July 8, 1974.
    Marshall C. Berger, New York City (Hahn, Hessen, Margolis & Ryan, New York City, Molinare, Allegretti, Newitt & Witcoff, Chicago, 111., William J. Daly, Jr., New York City, George B. Newitt, George P. McAndrews, Chicago, 111., Wayne Carson, New York City, on the brief), for plaintiff-appellant and additional defendants-appellants.
    John C. Lankenau, New York City (Lankenau, Kovner, Bickford & Beer, Victor A. Kovner, Edward A. Miller, Nathaniel J. Bickford, New York City, on the brief), for defendants-appellees.
    Before MOORE and FEINBERG, Circuit Judges, and PALMIERI, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   PER CURIAM:

The appellants assert error in the grant of a preliminary injunction.

This is essentially a dispute between the publishers of competing textbooks in the child development field. The defendants-appellees, seeking redress as copyright holders, convinced Judge Owen upon a persuasive factual record that they would probably succeed on the merits, that the appellants had plagiarized their textbook, and that there was need for immediate relief. There was a sufficient basis for the findings and conclusions of the District Court and since they are not clearly erroneous, Fed.R. Civ.P. 52(a), we affirm.


text:
    NORTHWEST ACCEPTANCE CORPORATION, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
    No. 73-1879.
    United States Court of Appeals, Ninth Circuit.
    July 24, 1974.
    Richard Farber (argued), Atty. for Tax Div., U. S. Dept, of Justice, Washington, D. C., for respondent-appellant.
    Frederick H. Torp (argued), Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., for petitioner-appellee.
    Before MERRILL and TRASK, Circuit Judges and SOLOMON, District Judge.

       Honorable Gus J. Solomon, Senior United States District Judge from the District of Oregon, sitting by designation.

   OPINION

PER CURIAM:

In, this appeal from a decision of the Tax Court reported at 58 T.C. 836 the issue is whether certain contractual agreements entered into by the taxpayer with others for the use of equipment, constituted conditional sales contracts or leases.

If the transactions were bona fide leases and the taxpayer remained the owner of the equipment, then it was entitled to a deduction for depreciation, Int.Rev.Code of 1954 § 167, and an investment credit, Int.Rev.Code of 1954 § 38, both of which the taxpayer had taken. It would not have obtained those tax advantages were the agreements in question contracts of sale or conditional sales. The issue is essentially a factual one. As the Tax Court pointed out, “[t]he factual issue presented here is an extremely close one, making the decision difficult.” That court resolved the contest in favor of the taxpayer, holding that the agreements were leases. Weighing the same evidence we might well have decided the case differently notwithstanding the decision in Lockhart Leasing Co. v. United States, 446 F.2d 269 (10th Cir. 1971), upon which the Tax Court so heavily relied. But our standard of review requires us to affirm unless the decision is “clearly erroneous.” Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Brumley-Donaldson Co. v. Commissioner, 443 F.2d 501, 503 n.3 (9th Cir. 1971); Made Rite Investment Co. v. Commissioner, 357 F.2d 647, 648 (9th Cir. 1966); Kessmar Construction Co. v. Commissioner, 336 F.2d 865, 867 (9th Cir. 1964). We cannot find that the decision of the Tax Court is clearly erroneous.

Judgment affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis QUIROZ-REYNA, Defendant-Appellant.
    No. 73-2328.
    United States Court of Appeals, Ninth Circuit.
    July 5, 1974.
    Michael J. McCabe, Deputy Federal Defender (argued), San Diego, Cal., for defendant-appellant.
    James W. Meyers, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
   OPINION

Before MERRILL, KOELSCH and CHOY, Circuit Judges.

PER CURIAM:

Defendant appeals from a conviction of violating 21 U.S.C. § 841(a)(1) (possession of marijuana with intent to distribute) .

Defendant was stopped on February 26, 1973, at a border patrol checkpoint on Interstate 8, two miles west of O cotil-lo so that agents could check the citizenship of the driver and check the vehicle for aliens. The parties have stipulated that this was a stationary checkpoint rather than a roving patrol. Pursuant to this stop the marijuana was discovered.

Defendant urges that the stop of his vehicle was unconstitutional under the logic of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In United States v. Bowen, 500 F.2d 960 (9th Cir. 1974), we held that stops at fixed checkpoints are unconstitutional if they do not occur at the functional equivalent of a border. However, as to such stops the rule was made to apply only to stops occurring after June 21, 1973.

We hold that for purposes of retroactivity a stationary checkpoint, even though temporary, is similar to a fixed checkpoint. United States v. Grijalva-Carrera, 500 F.2d 592 (9th Cir. 1974) (en banc). Thus the stop of defendant’s car was, on the date of the stop, legal under the law of this circuit.

Since the border agent was entitled to open the trunk pursuant to his search for aliens under § 287(a) of the Immigration and Nationality Act, 8 U. S.C. § 1357(a), as then in force we need not consider the probable cause issue.

Affirmed.

      . Three agents with a van or two sedans, aided by a “stop” sign, stopped all traffic and checked the citizenship of the person driving the car.


text:
    UNITED STATES of America, Appellee, v. Danny Richard MASSINGALE et al., Appellants.
    No. 74-1125.
    United States Court of Appeals, Fourth Circuit.
    Argued June 5, 1974.
    Decided Aug. 1, 1974.
    T. K. Alexander, Columbia, S. C., for appellants Massingale; James W. Coth-ran, Bishopville, S. C., for appellant Wilie; (James C. Anders, Columbia, S. C., on brief, for appellants).
    Oscar W. Bannister, Jr., Asst. U. S. Atty. (John K. Grisso, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and FIELD and WIDENER, Circuit Judges.
   PER CURIAM:

These defendants were indicted, tried and convicted of the crime of kidnapping in violation, of 18 U.S.C. § 1201, as amended. The only issue on this appeal is whether the district court properly denied the defendants’ motion for twenty peremptory challenges granted to one charged with a capital crime under Rule 24(b), Fed.R.Crim.P., and to a list of the Government’s witnesses required to be furnished in a capital case under 18 U.S.C. § 3432.

If this case presented nothing more than the declaration of the unconstitutionality of the death penalty provision of section 1201 by the Court in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), we would be faced with the dilemma which has confronted the courts in the wake of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972), and which was thoroughly discussed by Judge Winter in United States v. James A. Watson, 496 F.2d 1125 (4 Cir. 1973). However, the 1972 amendment of Section 1201 by the Congress, which eliminated the death penalty, removed kidnapping from the classification of a capital offense and, accordingly, the defendants were not entitled to the benefit of either the rule or statutory section upon which their motion was based.

The judgments of conviction are affirmed.

Affirmed.


author: MATTHES, Senior Circuit Judge.

text:
    Neal RUETZ, Petitioner-Appellant, v. Russell E. LASH, Warden, Respondent-Appellee.
    No. 73-1803.
    United States Court of Appeals, Seventh Circuit.
    Argued May 23, 1974.
    Decided July 22, 1974.

      Frederic Weber, Chicago, 111., for petitioner-appellant.
    Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appel-lee.
    Before SWYGERT, Chief Judge, CUMMINGS, Circuit Judge, and MATTHES, Senior Circuit Judge.

       Senior Circuit Judge M. C. Matthes of the Eighth Circuit is sitting by designation.

   MATTHES, Senior Circuit Judge.

This appeal from an order of the district court denying habeas corpus relief poses a unique question — whether the escape of appellant following his state conviction constituted a deliberate bypass of state remedies so as to disentitle him to relief under the equitable principles governing habeas corpus.

In May of 1971, appellant, Neal Ruetz, was convicted by a jury in the LaGrange County, Indiana, Circuit Court of first degree murder. He was sentenced on June 3, 1971, to life imprisonment. At sentencing, appellant indicated his desire to file a motion to correct errors, a state procedural requisite to filing an appeal. The trial judge promptly instructed Ruetz’s trial attorney to file such a motion on his client’s behalf within the statutory 60 day period. Defense counsel’s request that appellant be allowed to remain in LaGrange County to assist in the preparation of the motion was denied, and appellant was remanded to the custody of the sheriff for transportation to the Indiana State Prison.

Two days after sentencing, appellant “walked away from the LaGrange County Jail through an open garage door.” State ex rel. Ruetz v. LaGrange Circuit Court, 281 N.E.2d 106, 108 (Ind.1972). He was apprehended and returned to LaGrange County more than three months later, on September 27, 1971. In the meantime, his lawyer timely filed a motion to correct errors. The trial court did not act upon the motion until September 30,' 1971, after Ruetz had been returned to custody. At that time, in the presence of appellant and his attorney, the motion was overruled. The court further ordered that “the defendant having been a fugitive from justice during the statutory period for filing motion to correct errors in this cause he has waived his right to appeal, and his request for an appeal is now denied by the court.”

Appellant sought a writ of mandamus from the Supreme Court of Indiana ordering the trial court to allow appellant to perfect an appeal. The state supreme court denied relief, saying:

“In the case at bar the relator was not within the jurisdiction of the court at the time his motion to correct errors was filed. The time permitted by the rules of this Court for the filing of such a motion had long expired at the time the relator was captured and returned to the jurisdiction of the court. Under the above authority, the relator had no standing in court during the period in which the motion to correct errors could be filed. By so voluntarily absenting himself from the court’s jurisdiction, the relator has effectively and knowingly waived his right to a timely appeal to this Court.”

State ex rel. Ruetz v. LaGrange Circuit Court, 281 N.E.2d 106, 107 (Ind.1972).

A vigorous dissent was filed by Justice DeBruler, arguing that the record did not show a voluntary, knowing, and intelligent waiver by appellant of his constitutional and statutory right to appeal. In addition, the dissent asserted, the supposed rationale for the “escape rule” — the nonenforceability of a court order against a fugitive — was inapplicable to this case since Ruetz was back in court at the time the trial court ruled on the motion to correct errors. Id. at 107-109.

On January 5, 1973, appellant filed a petition for habeas corpus in the United States District Court for the Northern District of Indiana. The district court, however, refused to consider appellant’s claims on the ground that appellant had forfeited his right to habeas corpus relief by deliberately bypassing his state remedies. While acknowledging that “[t]he State court’s determination does not ‘bar independent determination of the question [of waiver] by the federal courts,’ ” the court concluded that “this is one of the few types of cases in which the voluntariness of petitioner’s waiver has been held to be determinable by the petitioner’s actions without an inquiry into the subjective intent of the petitioner himself.” In so holding, the district court relied upon a 1958 decision of this circuit stating that an escape by a defendant during the time allotted for filing a motion for a new trial constituted an abandonment of the remedy. Irvin v. Dowd, 251 F.2d 548, 553 (7th Cir. 1958), rev’d on other grounds, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900 (1959).

As the district court recognized, “waiver affecting federal rights is a federal question.” Fay v. Noia, 372 U. S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963). Nevertheless, the district court, in the instant case, concluded that the act of escape, by definition, constituted waiver under the federal standard as well as under the state standard. The district court was of the opinion that this result was dictated by our case of Irvin v. Dowd, supra. As Irvin v. Dowd concerned the same Indiana “escape rule” at issue in the present case and as the procedural history is rather complicated, we pause to describe the case in some detail.

On January 18, 1956, Leslie Irvin escaped following his conviction for murder in the Gibson County, Indiana, Circuit Court. On the day following his escape, his counsel timely filed a motion for a new trial. The motion was promptly overruled on the ground that Irvin was a fugitive. Irvin was apprehended after the expiration of the period for filing a motion for new trial. He appealed from his conviction, challenging only the overruling of his motion for new trial. The Supreme Court of Indiana affirmed, stating:

“If a prisoner escapes he is not entitled during the period he is a fugitive to any standing in court or to file any plea or ask any consideration from such court.
******
“Since appellant had no standing in court at the time he filed a motion for a new trial the situation is the same as if no motion for a new trial had been filed, or he had voluntarily permitted the time to expire for such filing.”

Irvin v. State, 139 N.E.2d 898, 901 (Ind.1957).

Although concluding that “[n]o error could have been committed in overruling the motion for a new trial under the circumstances,” the court proceeded to dispose of the contentions made in Irvin’s motion for a new trial.

When Irvin applied for federal habeas corpus, the district court found

“that the petitioner by his own unlawful act in escaping * * * and remaining a fugitive * * * during the statutory period when his time for filing a motion for new trial expired, * * * forfeited the right to utilize the adequate corrective processes available to him in the courts of the State of Indiana and * * * failed to exhaust the remedies available to him * * *, which is an absolute bar to relief by habeas corpus in this court, and his petition must, therefore, be dismissed.”

Irvin v. Dowd, 153 F.Supp. 531, 535 (N. D.Ind.1957).

On appeal, this circuit agreed with the district court’s analysis and affirmed, saying: “Defendant did not exhaust his remedies under the law of Indiana. By his escape he abandoned the remedy to which his attorneys resorted.” Irvin v. Dowd, 251 F.2d 548, 553 (7th Cir. 1958).

The United States Supreme Court granted certiorari and held that the doctrine of exhaustion of state remedies was not applicable since the Indian Supreme Court had proceeded to an adverse determination of Irvin’s constitutional claims. Accordingly, the case was reversed and remanded for consideration of Irvin’s petition on the merits. Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900 (1959).

Four years later in Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed. 2d 837 (1963), the United States Supreme Court limited the doctrine of exhaustion of state remedies “to failure to exhaust state remedies still open to the habeas applicant at the time he files his application in federal court.” Under' the teachings of Fay v. Noia, Irvin had exhausted his state remedies even if the Indiana Supreme Court had not reached the merits o.f his constitutional claims.

It is clear that the statement of this circuit in Irvin v. Dowd that “[b]y his escape he abandoned the remedy” cannot be separated from the now discredited holding in that case that Irvin failed to exhaust his state remedies.

In fairness, it should be noted that Irvin’s motion for a new trial was overruled while he was a fugitive, whereas appellant’s motion to correct errors was overruled in his presence.

Fay v. Noia controls, not only with regard to the doctrine of exhaustion of state remedies, but also with regard to the principles governing a determination of what constitutes a “deliberate by pass” of state remedies. In the latter respect, Mr. Justice Brennan recognized a limited discretion in the federal judge to deny habeas corpus relief to an applicant who has deliberately bypassed the orderly procedure of the state courts. 372 U.S. at 438, 83 S.Ct. at 849. But he cautioned:

“[W]e wish to make very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus. The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 — ‘an intentional relinquishment or abandonment of a known right or privilege’ — furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits — though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant’s default. * * * At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner.”

372 U.S. at 439, 83 S.Ct. at 849.

And “[e]aeh case must stand on its facts.” 372 U.S. at 440, 83 S.Ct. at 849.

A per se rule, as applied by the district court to the facts of this case, is completely at odds with the above stated principles.

Once the per se rule is discarded, as it must be, and the individual circumstances of the case examined, it becomes apparent that appellant, by his escape, did not voluntarily and knowingly relinquish his right to appeal. We reach this conclusion with some assurance because of the lengthy transcript of the proceedings on sentencing where appellant expressly stated, in response to questions by the trial court, his intention to file a motion to correct errors, and in the event such motion was denied, his intention to prosecute an appeal. Under these circumstances, we are not persuaded to hold that appellant deliberately bypassed the orderly procedure of the Indiana courts.

Since we hold that appellant has not deliberately bypassed his state remedies, the normal procedure would be to remand the case to the district court for an evidentiary hearing on the allegations in his petition. In the present case, however, as in Macon v. Lash, 458 F.2d 942, 949, 950 (7th Cir. 1972), there appears to be no need for such a hearing as the undisputed facts reveal the correctness of appellant’s contention that he is entitled to a direct appeal from his conviction.

Indiana statutory law has made an appeal from a state conviction in a criminal case a matter of right. Burns’ Ind.Stat.Ann. § 9-2301, IC 1971, 35-1-47 — 1 (1956). This being so, the scheme of appellate review must conform to fourteenth amendment requirements of equal protection and due process. Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Macon v. Lash, supra, 458 F.2d at 949.

As Mr. Justice Frankfurter stated in his concurring opinion in the Griffin case:

“[N] either the fact that a State may deny the right of appeal altogether nor the right of a State to make an appropriate classification, based on differences in crimes and their punishment, nor the right of a State to lay down conditions it deems appropriate for criminal appeals, sanctions differentiations by a State that have no relation to a rational policy of criminal appeal or authorizes the imposition of conditions that offend the deepest presuppositions of our society.”

351 U.S. at 21-22, 76 S.Ct. at 592.

The Supreme Court has determined that it is not a denial of due process for a state court to dismiss an appeal on the ground that the appellant has escaped and become a fugitive from justice. National Union v. Arnold, 348 U. S. 37, 43, 75 S.Ct. 92, 99 L.Ed. 46 (1954) ; Allen v. Georgia, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897). The Supreme Court, itself, has taken such action on many an occasion, see United States v. Campos-Serrano, 404 U.S. 293, 294 n. 2, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971); Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); Eisler v. United States, 338 U. S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897 (1949) ; Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854 (1877); Smith v. United States, 94 U.S. 97, 24 L.Ed. 115 (1876), as have the courts of appeals. See, e. g., Van Blaricom v. Forscht, 490 F.2d 461 (5th Cir. 1974); United States v. Swigart, 490 F.2d 914 (10th Cir. 1973); Brinlee v. United States, 483 F.2d 925 (8th Cir. 1973); Hitchcock v. Laird, 456 F.2d 1064 (4th Cir. 1972); United States v. Tremont, 438 F.2d 1202 (1st Cir. 1971); Johnson v. Laird, 432 F.2d 77 (9th Cir. 1970) ; United States v. Press, 401 F.2d 499 (3d Cir. 1968); United States v. Dawson, 350 F.2d 396 (6th Cir. 1965); Stern v. United States, 249 F.2d 720 (2d Cir. 1957, cert. denied, 357 U.S. 919, 78 S.Ct. 1360, 2 L.Ed.2d 1364 (1958); cf. Dawkins v. Mitchell, 141 U.S.App.D.C. 213, 437 F.2d 646 (1970).

The rationale behind such dismissals is that the order and judgment may never be enforced because the appellant, by escaping, has placed himself beyond the control of the court. See 5 Wharton’s Criminal Procedure § 2249 (1957) ; 18 Geo.Wash.L.Rev. 427, 428, 429 (1950).

In none of the cases cited above had the appellant been returned to the jurisdiction of the court before the appeal was dismissed. Indeed, many of the courts, in anticipation or hopes of the appellant’s return, provided a grace period before actually dismissing the case.

Appellant’s motion to correct errors, a requisite to filing an appeal, was timely filed. No action was taken thereon until appellant had been returned to the jurisdiction of the court. His request for an appeal only then was denied. Under this circumscribed set of facts, we are unable to discern any rational basis for the court’s action.

Accordingly, the judgment of the district court is vacated and the case is remanded to that court for the entry of an appropriate order discharging petitioner from custody unless within a reasonable time to be fixed by the district court the State of Indiana provides him an appeal on the merits to the Supreme Court of Indiana from his conviction.

It is so ordered.

      . Upon remand, this circuit retained jurisdiction and decided the constitutional claims adversely to Irvin. Irvin v. Dowd, 271 F.2d 552 (7th Cir. 1959). The United States Supreme Court again granted certiorari and again reversed, finding Irvin’s trial lacking in due process. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

      . Escape from a place of detention under the jurisdiction of the state department of correction is punishable as a felony or misdemeanor. Burns’ Ind.Stat.Ann. § 10-1809 (Supp.1973), IO 1971, 35-21-8-1. Appellant was never prosecuted under this statute.


author: MEHAFFY, Chief Judge.

text:
    FOSTER LUMBER COMPANY, INC., Appellee, v. UNITED STATES of America, Appellant.
    No. 73-1659.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 18, 1974.
    Decided July 29, 1974.

      Donald H. Olson, Atty., Tax Div., Dept, of Justice, Washington, D. C., for appellant.
    Robert J. Vancrum, Kansas City, Mo., for appellee.
    Before MEHAFFY, Chief Judge, and LAY and ROSS, Circuit Judges.
   MEHAFFY, Chief Judge.

This is a refund suit by the successor in interest of a Missouri corporation to recover a portion of the taxpayer’s 1967 federal corporate income tax payment. The taxpayer bases its claim on a recom-putation of its 1967 tax liability to include the carryback of a net operating loss it had incurred in 1968. The Internal Revenue Service disallowed taxpayer’s claim on the ground that the net operating loss in question had been fully absorbed in the recomputation of taxpayer’s 1966 tax liability. The district court sustained the taxpayer’s refund claim, and IRS brought this appeal. For the reasons stated below we affirm the judgment of the district court.

The relevant facts have been stipulated and may be briefly stated. In fiscal 1966 the taxpayer realized $7,236.00 of ordinary income and $166,634.00 in net long-term capital gains. In fiscal 1967 the taxpayer realized $114,261.00 of ordinary income and $114,656^.00 in net long-term capital gains. In fiscal 1968 the taxpayer suffered a net operating loss of $42,203.00. Pursuant to the provisions of Int.Rev.Code § 172 the taxpayer sought to carry back the 1968 net operating loss to its prior taxable years. The taxpayer first carried the net operating loss back to 1966, and there is no dispute over the taxpayer’s recomputation of its 1966 tax liability.

Under the regular corporate income tax rates the 1966 liability was recomputed as follows:

Taxable Income as Originally Reported $173,870.00

Net Operating Loss Deduction_ 42,203.00

Recomputed Taxable Income $131,667.00

Regular Corporate Tax on Recomputed Taxable Income $ 58,200.00

Under the alternative tax provided in section 1201 the 1966 tax liability was recomputed as follows:

Ordinary Income Element of Taxable

Income $ 7,236.00

Net Operating Loss Deduction_42,203.00

Recomputed Ordinary Income Element of Taxable Income -0-

Net Long-Term Capital Gain Element of Taxable Income $166,634.00

Tax on Recomputed Ordinary Income Element -0-

Tax on Net Long-Term Capital Gain Element_41,658.00

Alternative Tax $ 41,658.00

The alternative tax method resulted in a smaller 1966 tax liability than that computed under the regular rates, and the parties agree that the section 1201 alternative tax is controlling.

Given the agreement among the parties on the recomputed 1966 tax liability, the sole controversy presented here is over the amount of the net operating loss carryback that is available to be carried forward to 1967. The controlling statutory language, in pertinent part, states that :

The portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried.

Int.Rev.Code § 172(b)(2).

The taxpayer contends that the above-quoted language allows it to carry forward to 1967 the excess of the net operating loss over the amount of the 1966 taxable income to which the loss had been carried:

Net Operating Loss $ 42,203.00

Taxable Income to which N0L Was Carried 7,236.00

N0L to be Carried Forward $ 34,967.00 IRS contends that section 172(b)(2) allows taxpayer to carry forward only the excess of the net operating loss over the total amount of the taxable income for the year 1966:

Net Operating Loss $ 42,203.00

Total Taxable Income_ 173,870.00

NOL to be Carried Forward -0-

Stated somewhat differently, the issue in this case is whether the last phrase of section 172(b)(2), “to which such loss may be carried,” modifies “taxable income” as well as the words “prior taxable years.”

The taxpayer concedes that its interpretation of section 172(b)(2) is counter to the position announced in Treasury Regulation 1.172-4(b) (ii), but notes that every court which has considered the issue has squarely rejected the position taken by IRS. Naegele v. United States, 32 Am.Fed.Tax R.2d 73-5689 (D.Minn.1973), appeal docketed, No. 73-1921, 8th Cir., Dec. 26, 1973; Olympic Foundry Co. v. United States, 29 Am. Fed.Tax R.2d 72-759 (D.Wash.1972), aff’d per curiam, 493 F.2d 1247 (9th Cir. 1974); Sidney Axelrod, 42 P-H Tax Ct.Mem. ¶ 73,190 (1973), appeal docketed, No. 74-1511, 6th Cir., May 7, 1974; Mutual Assurance Society of Virginia Corporation, 42 P-H Tax Ct.Mem. ¶ 73,177 (1973), appeal docketed, No. 74- 1133, 4th Cir., Jan. 28, 1974; Chartier Real Estate Company, 52 T.C. 346 (1969), aff’d per curiam, 428 F.2d 474 (1st Cir. 1970). IRS concedes that the unanimous weight of judicial opinion is, at least thus far, against its position. IRS argues, however, that these cases are merely ill-considered reaffirmations of an allegedly aberrant secondary holding in the original Tax Court decision on this issue, Chartier Real Estate Company, supra. Each party also argues that its position is supported by the plain meaning of the statutory language and the policy behind that language.

As one should probably expect in a case involving the Internal Revenue Code, it is impossible to find any plain meaning in the statutory language that would dispose of this controversy. Given the typically tortured wording of the Code, we feel that each of the parties’ interpretations presents a plausible reading of section 172(b)(2) on its face. Moreover, the legislative history offers little assistance in ascertaining Congress’s intent. Neither party has cited, nor have we been able to find, any legislative history that directly addresses the issue presented in this appeal. We are convinced, however, that the basic policy considerations underlying sections 1201 and 172 decisively support the result reached by the district court.

The basic purpose behind the net operating loss carry back provisions of section 172 is to ameliorate the harsh tax consequences that can result from the necessity of accounting for certain exceptional economic events within the confines of an arbitrary annual accounting period. The purpose behind the alternative tax in section 1201 is to alter the tax rate to reflect the traditionally unique character of income arising out of the sale of capital assets. These purposes are quite distinct, as are the economic events with which they are concerned. IRS contends that the taxpayer’s position in this case will result in a double benefit. We agree that the tax benefits of the separate provisions may under certain circumstances be “double,” at least in the sense that they are cumulative. But, given the differing purposes behind each benefit, we see no reason why the chance relative timing of basically unrelated economic events should negate the cumulative impact of the separate provisions. Indeed, to hold otherwise would frequently subject otherwise similarly situated taxpayers to significantly different treatment solely on the basis of arbitrary timing; precisely the reverse of section 172’s original purpose.

In reaching our conclusion we have carefully examined the Internal Revenue Service’s argument regarding the judicial decisions on the issue presently before us. None of the decisions is binding precedent in this court, and several of the opinions are quite brief in their discussion of the issue. Nevertheless, we cannot dismiss lightly the cumulative weight of our fellow judges’ decisions or the divisiveness' and administrative confusion that a contrary conclusion at this point might foster.

The judgment of the district court is affirmed.


author: WEBSTER, Circuit Judge.

text:
    Leberta STARNS, Administratrix of the Estate of W. W. Starns, a/k/a Jim Starns, Deceased, Appellant, v. Benton JONES and Samuel L. Garst, Appellees. Alice Jean BURNEY, Administratrix of the Estate of Robert W. Burney, Deceased, Appellant, v. Benton JONES and Samuel L. Garst, Appellees.
    Nos. 73-1767 and 73-1768.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 16, 1974.
    Decided Aug. 5, 1974.
    Rehearings and Rehearings En Banc Denied Aug. 27, 1974.

      Edward F. Fogarty, Omaha, Neb., for appellant.
    Edward P. Welch, Omaha, Neb., for ap-pellees.
    Before MATTHES, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

On July 14, 1969, W. W. Starns and Robert W. Burney, his passenger, were killed when Starns’ Volkswagen collided with a school bus, owned by Benton Jones and driven by his employee, Samuel Garst. The school bus, operated as part of a wheat-harvesting convoy, had been heading north from Kansas into Nebraska with a trailer carrying a combine header in tow. As the bus traveled north on Highway 61 in Perkins County, Nebraska, it approached the intersection of Highway 23 which was protected by stop signs. Garst had attempted to brake as he neared the signs but both his hydraulic braking system and his emergency hand brake failed. The bus and trailer proceeded through the intersection, colliding with the Starns VW, which had been traveling east on Highway 23.

The widows of Starns and Burney, as administratrices of their respective estates, each commenced a wrongful death action against Jones and Garst in the United States District Court in Nebraska. Plaintiffs ultimately alleged 13 specific counts of negligence against defendants, who denied the charges generally and asserted sudden and unexpected brake failure and Starns’ contributory negligence as defenses. The cases were consolidated for trial and tried to a jury before Judge Richard Dier. The jury returned verdicts in favor of both defendants and against both plaintiffs; following the entry of judgments thereon, plaintiffs moved for a new trial. These motions were denied by Judge Warren Urbom, to whom the case was assigned after Judge Dier’s death. Plaintiffs appeal, and having considered each of the six issues presented for review, we affirm.

1. The Nebraska Safe Brake Statute. Under Nebraska law, § 39-773 (1968), ■every motor vehicle must be equipped with adequate brakes, including two separate means of applying the brakes, maintained at all times in good working order; moreover, all hand, parking, or emergency brakes must be capable of stopping vehicles weighing over 7,000 pounds within a maximum stopping distance of 65 feet, from a speed of 20 miles per hour. Unbeknownst to Garst, who for the first time attempted to use the hand brake for an emergency stopping situation, the hand brake on the school bus was extremely oily and thus ineffective for stopping the bus, which failed to stop after application of the .hydraulic brakes.

Both parties agree that the general rule in Nebraska is that a violation of a motor vehicle statute is evidence of negligence to be submitted to the jury and does not constitute negligence as a matter of law. See, e. g., Egenberger v. National Alfalfa Dehydrating & Milling Co., 164 Neb. 704, 83 N.W.2d 523, 531 (1957). Appellants, however, maintain that the violation of the Safe Brake Statute in the instant case was sufficiently egregious to have compelled a directed verdict in their favor.

We are not persuaded. Appellants’ references to cases from other jurisdictions and other factual contexts contain no authority for departing from the rule articulated in Ziskovsky v. Miller, 120 Neb. 255, 231 N.W. 809 (1930), wherein the Nebraska Supreme Court specifically held that a violation of a prior version of the Safe Brake Statute, "while * * * not negligence per se, * * * was a matter for the jury to take into consideration with all the other facts and circumstances in determining whether the defendant was guilty of negligence.” 231 N.W. 811. The Nebraska Supreme Court has consistently adhered to this general “evidence of negligence” rule, reiterated as recently as 1973 in Fleischer v. Rosentrater, 190 Neb. 219, 207 N.W.2d 372 (1973). We find no error in the submission of this evidence to the jury.

2. The Burden of Proof Regarding Sudden Emergency.

In automobile negligence cases the Nebraska courts afford either party the opportunity of invoking the “Sudden Emergency Doctrine”:

“ * * * ‘Where one driving an automobile is suddenly confronted by an emergency, requiring instant decision, he is not necessarily guilty of negligence in pursuing a course which mature reflection or deliberate judgment might prove to be wrong.’ * * * However, the above rule cannot be successfully invoked by either party in a negligence case unless there is competent evidence to support a conclusion that a sudden emergency actually existed, and then it cannot be successfully invoked by one who has brought that emergency upon himself by his own acts or who has not used due care to avoid it.”
Watson Bros. Transportation Co. v. Jacobson, 168 Neb. 862, 97 N.W.2d 521, 525 (1959), quoting Roby v. Au-ker, 149 Neb. 734, 32 N.W.2d 491, 495 (1948).

The defendants in this case did invoke that doctrine, and appellants now assign error to the trial court’s allocation of the burden of proof on that issue.

We agree with the trial court that the burden of proving negligence was on plaintiffs. While it was undisputed that the brakes on the school bus had failed, the plaintiffs were nonetheless required to persuade the jury that the brake failure was attributable to defendants’ negligence and that the collision was proximately caused by such negligence. Where the Sudden Emergency Doctrine is successfully invoked, it does not provide an affirmative defense for a driver whose negligence has already been established; rather it precludes the opposing party from establishing a case of negligence in the first place. See Davis v. Dennert, 162 Neb. 65, 75 N.W.2d 112, 121 (1956), quoting Belik v. Warsocki, 126 Neb. 560, 253 N. W. 689, 691 (1934) :

“ * * * The law does not require under [sudden emergency] circumstances that no mistake should be made. All it requires is that one demean himself as an ordinary, careful and prudent person would have done, under like circumstances, and if he does that, he is not held to he negligent, even though he committed an error in judgment.” (emphasis added)

We conclude that where, as here, the trial court simply instructed the jury that plaintiffs had the burden of proving one or more of the specifications of negligence alleged, no error occurred.

3. The Instruction on Sudden Emergency.

Appellants contend that any emergency which might have occurred was not a sudden one since there was evidence that oil had been accumulating on the hand brake over a long period of time, a situation arguably brought about by defendants themselves. Thus appellants claim that the jury should not have been given a “sudden emergency” instruction.

Appellants’ argument misses the mark. The focus of the Sudden Emergency Doctrine is not the suddenness with which the emergency situation developed but rather the suddenness with which a driver became aware thereof. The doctrine explicitly envisions a driver “suddenly confronted by an emergency, requiring instant decision. . . .” Watson Bros. Transportation Co. v. Jacobson, 168 Neb. 862, 97 N.W.2d 521, 525 (1959) (emphasis added). At trial, the evidence of sudden brake failure was coupled with evidence of the limited responses available to defendant Garst, who testified that west of the intersection on Highway 23 a combine crew obstructed his view to the left, while east of the intersection another rig from the same wheat-harvesting convoy blocked his vision to the right. This evidence of the limited options open to Garst upon his discovery of the brake failure is precisely the type of evidence that a sudden emergency instruction is designed to explain to the jury.

In addition, Judge Dier’s instruction, a standard one approved by the state supreme court, informed the jury that the Sudden Emergency Doctrine would not apply to a party who had caused the emergency situation by his own negligence. Where, as here, there was evidence that the owner of the bus had had it completely overhauled only two months before the accident, we find that the challenged instruction properly presented a factual question of defendants’ negligence to the jury. Moreover, by its' language, the instruction afforded the benefit of the Sudden Emergency Doctrine not only to defendants but also to plaintiffs, who were likewise confronted by a sudden emergency when the bus proceeded through the intersection without stopping.

4. The Refusal to Instruct the Jury on the Kansas Litigation.

At the trial of this case, depositions taken in a related lawsuit pending in Kansas were read into evidence by counsel for the plaintiffs. In the Kansas case the same plaintiffs had filed suit against one Loren Bonham, a repairman who had completely overhauled the school bus, including both sets of brakes, approximately two months before the collision.

Once plaintiffs had injected the subject of the Kansas litigation into the trial of the instant case, the defense counsel suggested to the jury, for impeachment purposes, that plaintiffs could not consistently hold liable the driver and owner of the bus as well as the repairman. On appeal, plaintiffs-appellants contend that although the suit against the repairman was dismissed during the course of the trial of the instant case, the jury was left with the prejudicial impression that plaintiffs were seeking double recovery by initiating two lawsuits. Plaintiffs had requested a curative instruction to the effect that the Kansas case had been dismissed, but Judge Dier refused.

Without reaching the question whether this refusal constituted error, we find that any error which might have occurred was, at most, harmless error. Fed.R.Civ.P. 61. Our conclusion is based on the fact that (1) the subject of the Kansas litigation was introduced by plaintiffs themselves; (2) the plaintiffs were permitted to argue to the jury that that lawsuit had been dismissed; and (3) further, Judge Dier instructed the jury to impute any negligence on the part of the Kansas repairman to the owner of the bus, Benton Jones, thereby negating any suggestion that plaintiffs might recover twice.

5. The Submission of Contributory Negligence to the Jury.

According to plaintiffs-appellants, there was insufficient evidence of any contributory negligence on the part of Starns, the driver of the VW, to submit that issue to the jury; thus, they argue that Judge Dier’s instruction thereon constituted prejudicial error. We recognized the controlling rule in Powers v. Wong, 477 F.2d 116, 117 (8th Cir. 1973):

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 [of contributory negligence] 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)

We discern from the evidence adduced in this case a reasonable question of fact concerning Starns’ contributory negligence. Whether Starns could have stopped or swerved his car in time to avoid the collision appears from the record to have been a hotly contested issue at trial. Under the circumstances present in this record, a jury question was properly presented.

6. Other Assignments of Error.

We have reviewed appellants’ challenges to the time limits imposed upon the closing arguments and to certain remarks made by the trial judge within the hearing of the jury. We find both of these challenges to be without merit.

The judgment of the District Court is affirmed.

      . In each case federal jurisdiction was based upon the parties’ diversity of citizenship and the requisite amount in controversy. 28 U. S.C. § 1332.

      . None of the parties dispute the application of Nebraska law.

      . E. g., Prunty v. Vandenberg, 257 Wis. 469, 44 N.W.2d 246 (1950) ; Kehrer v. McKittrick, 176 Ohio St. 192, 198 N.E.2d 669 (1964).

      . E. g., Baer v. Schaap, 168 Neb. 578, 97 N. W.2d 207 (1959), rev’d, 171 Neb. 347, 106 N.W.2d 468 (1960), appeal dismissed, 172 Neb. 414, 109 N.W.2d 724 (1961) ; Ritchie v. Davidson, 183 Neb. 94, 158 N.W.2d 275 (1968).

      . Nebraska Jury Instructions (1969), prepared by the Nebraska Supreme Court Committee on Pattern Jury Instructions, contains a general instruction worded as follows :
      EFFECT OF VIOLATION OF STATUTES AND ORDINANCES
      Any violation of a statute (ordinance) regulating the use and operation of motor vehicles upon the highways (streets) does not in and of itself constitute negligence, but any such violation is evidence of negligence which may be considered with all the other facts and circumstances in this case in determining whether or not the person so violating was negligent. NJI 7.02 at 152.
      The note following that instruction states in part that “No Nebraska case has been found holding that the violation of an ordinance or statute relating to the operation of motor vehicles is negligence as a matter of law.”

      . “ * * * In the instant case, therefore, the evidence that the defendant’s car was standing on the pavement is evidence of a violation of statute relative to the use of motor vehicles on a highway which, if found to be true, is evidence of negligence which the jury may consider in connection with all the other facts and circumstances in determining whether or not the driver of defendant’s car was negligent. * * * [(Consequently, the evidence is sufficient to show that there was a noncompliance with the statute. This is evidence of negligence, which the jury may properly consider.”
      Fleischer v. Rosentrater, 190 Neb. 219, 207 N.W.2d 372, 374 (1973) (emphasis omitted), quoting Huston v. Robinson, 144 Neb. 553, 13 N.W.2d 885, 888 (1944).

      . A sudden emergency not attributable to either party to the litigation is analogous to a situation in which a third person, not party to the lawsuit, is alleged to be the cause of the accident; a defendant in a negligence action who makes such an allegation has not raised an affirmative defense and bears no burden of proof thereon. Schmidt v. Johnson, 184 Neb. 643, 171 N.W.2d 64, 67 (1969). See also Fisher v. Gate City Steel Corp., 190 Neb. 699, 211 N.W.2d 914 (1973).

      . The court’s Instruction No. 26, which is found in Nebraska Jury Instructions 3.09, at 69 (1969), read as follows:
      When a person by a sudden emergency which is not due to his own negligence is placed in a position of immediate danger and has insufficient time to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as is required under ordinary circumstances, and if he pursues a course of action to avoid an accident, such as an ordinary, prudent person placed in a similar position might choose, he is not guilty of negligence, even though he did not adopt the wisest choice.

      . The depositions read into the record of the instant case were those of Bonham and of one Dr. Bose of Kansas State University, an expert witness in that case.

      . In so holding, we express no approval of Judge Dier’s view that the negligence of the repairman should be imputed to the owner of the vehicle. We simply find that the instruction to that effect, whatever its merit, cured any prejudice which might have improperly influenced the jury.

      . Judge Dier instructed the jury that defendants’ allegations of contributory negligence against Starns (failure to keep Ms vehicle under proper control and failure to make a timely application of the brakes) constituted an affirmative defense to be considered solely in reference to the Starns case. As a result, defendants-appellees argue that it is dubious that contributory negligence was the determinative issue since the jury rendered defendants’ verdicts against both plaintiffs.


author: LAY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Arthur QUALLS, Jr., Appellant.
    No. 74-1068.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1974.
    Decided July 26, 1974.

      Robert J. O’Hanlon, St. Louis, Mo., for appellant.
    Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before LAY, HEANEY and ROSS, Circuit Judges.
   LAY, Circuit Judge.

Arthur Qualls was convicted on two counts of knowingly and intentionally distributing heroin in violation of 21 U. S.C. § 841(a)(1). On appeal, Qualls challenges only the restrictions imposed by the trial court on his cross-examination of certain government witnesses. We affirm the conviction.

Robert Stewart, a paid government informer, testified that on March 9, 1972, his person and his car were searched by government agents for narcotics and currency. After the searches produced negative results, Stewart was given $50.-00 in government funds. He then went to the Hi-Note Lounge in the city of St. Louis, where he purchased what later proved to be heroin from the defendant, Arthur Qualls. Stewart turned the package of heroin over to the government agents and was then searched again with negative results. Similar events took place on April 10,1972.

In addition to the testimony of the informer, the government put on four federal narcotics agents, whose testimony corroborated the informer’s. It was stipulated at trial that the powder contained in the government’s exhibits contained heroin.

I. Cross-Examination of the Narcotics Agents

The four government narcotics agents who testified at Qualls’ trial were, at the time of trial, suspended from their positions as a result of indictments brought against them in the so-called Collinsville raid cases. Just before the start of trial, defense counsel was informed by the court that he would not be allowed to ask the agents whether they were then under indictment.

In sustaining the government’s objection to this line of cross-examination, the court stated:

[T]he Collinsville raids have been highly publicized in the newspapers and the area for the past six months, and to permit this type of testimony would result in a trial concerning the Collinsville raid and not the defendant in this case.

Defense counsel had hoped to show “bias and prejudice of the witnesses, to show the possible favoritism to be given them by the government by their testimony here.’’ The defendant now asserts error in the trial court’s refusal to let him pursue this line of questioning.

In United States v. Kirk, 496 F.2d 947 (8th Cir. 1974), this court resolved the same issue against the defendant. In the present case, prior to the court’s ruling and upon the court’s inquiry in an in camera proceeding, the government announced that it had not entered into any bargains with the indicted agents. Although cross-examination should ordinarily not be unduly restricted, especially where there exists a possibility of bias or prejudice of the witness, nevertheless the trial court is given broad discretion to weigh as well the possible prejudice which might ensue in opening up collateral matters. Under the special circumstances, we find no abuse of discretion.

II. Cross-Examination of the Informer

Quail’s second claim of error is that the trial court improperly prevented him from eliciting the address of the informer, Robert Stewart.

During the cross-examination of Stewart, the following colloquy ensued:

Q [by defense counsel]: Where do you live now, Mr. Stewart ?

MR. REAP [prosecutor] : Objection, Your Honor. I don’t think this is proper cross-examination.

THE COURT: The exact location ■ — he can state the city but not the exact address.

MR. LEE [defense counsel]: That’s all right.

Q (By Mr. Lee): Are you living in St. Louis now?

A Yes.

Tr. at 30-31 (emphasis added).

Defense counsel made no further attempt to pursue this line of questioning, nor was any objection made to the court’s ruling. Counsel must raise his objections in the trial court first. This court will not entertain objections on appeal for the first time. See, e.g., United States v. Price, 464 F.2d 1217 (8th Cir.), cert. denied, 409 U.S. 1040, 93 S.Ct. 522, 34 L.Ed.2d 489 (1972); Wood v. United States, 361 F.2d 802 (8th Cir. 1966).

Nor is the restriction of cross-examination in this case cognizable under the “plain error” rule. Qualls relies on Smith v. Illinois, 390 U.S. 129, 88 S. Ct. 748, 19 L.Ed.2d 956 (1968), which held that it was error to prohibit the defendant from asking the informant’s name and address. However, as the Seventh Circuit observed in United States v. Teller, 412 F.2d 374 (7th Cir. 1969), cert. denied, 402 U.S. 949, 91 S. Ct. 1603, 29 L.Ed.2d 118 (1971), Smith did not create an absolute rule:

We think that neither Alford [Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624] nor Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), requires a reversal of this conviction. Smith does not per se require a new trial merely because the district court sustained an objection to a question seeking to elicit Washington’s address. Smith requires reversal only where the lack of a witness’s name and address denies a defendant an opportunity to effectively cross-examine a witness. When this happens, a defendant is denied his Sixth Amendment right to confrontation. However, the initial quesT tion is whether the defendant was denied effective cross-examination. It is clear from the recital of Washington’s testimony that the district court did not unduly limit cross-examination of Washington’s past record.

Id. at 380.

In the present case, the record shows that defense counsel engaged in a thorough cross-examination of Stewart. His true name, criminal conviction record, previous work, length of St. Louis service, rate of pay, and present means of employment were all brought out. Thus, the informer’s exact street address was hardly necessary as a starting point either for further in-court examination or for out-of-court investigation. See also United States v. Lewis, 486 F.2d 217 (5th Cir. 1973); Escobedo v. United States, 350 F.Supp. 894 (N.D.Ill.1972), affirmed, 489 F.2d 758 (7th Cir. 1973).

Judgment affirmed.

      . Subsequent to Qualls’ trial, all four agents were acquitted and returned to full agent status.

      . Although the trial in the Kirk case preceded the bringing of indictments against the agents, they had already been placed on “limited duty status” pending the outcome of the grand jury investigation of the Collins-ville raids. The general rule in this circuit prohibits impeachment of a witness’ credibility absent a conviction. United States v. Burch, 490 F.2d 1300 (8th Cir. 1974). Thus, our bolding in the present ease is not affected by the fact that the agents in Kirk were merely under investigation, whereas here they had already been indicted.

      . In United States v. Miles, 480 F.2d 1215 (2d Cir. 1973), it was held that defense counsel should have been allowed to show that a police officer had been suspended from the department on collateral charges since his testimony may have been motivated by his desire to gain favor with 1ns superiors.


author: HUFSTEDLER, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. David Charles FOSTER, Appellant.
    No. 73-3028.
    United States Court of Appeals, Ninth Circuit.
    July 11, 1974

      Barry J. Portman, Deputy Federal Public Defender (argued), Los Angeles, Cal., for appellant.
    Mark O. Heaney, Asst. U. S. Atty. (argued), Los Angeles, Cal., for appel-lee.
    Before KOELSCH and HUFSTEDLER, Circuit Judges, and TURRENTINE, District Judge.

       Southern District of California, sitting by designation.

   OPINION

HUFSTEDLER, Circuit Judge:

Foster appeals from an order revoking his probation, contending that the evidence does not support a determination that he intentionally violated the terms of probation and that the district court’s decision to revoke was an abuse of discretion. He also contends that the manner in which the district court conducted the probation revocation hearings denied him due process.

On January 12, 1973, Foster pleaded guilty to possessing an altered $20 Federal Reserve Note with intent to defraud in violation of 18 U.S.C. § 472. The district court sentenced him to the custody of the Attorney General, providing that Foster “shall be confined in a jail-type institution for the first 60 days, said days to be served on consecutive weekends from 8:00 A.M. Saturdays until 6:00 P.M. Sundays commencing January 20, 1973; the remainder of the term of imprisonment is suspended and the defendant is placed on probation for a period of three years on the conditions he obey all laws Federal State and local and comply with all rules and regulations of the Probation Officer.”

At the time of sentencing, Foster had been in continuous federal custody for 39 days: from December 5, 1972, the date of his arrest upon the charge to which he pleaded guilty, to January 12, 1973. In imposing sentence, the district court indicated its intention to credit the time Foster had already spent in custody to the 60-day-jail-term portion of the sentence.

Foster was released into state custody on January 12, 1973, and removed to the Orange County jail pending sentencing on state charges. The state court imposed a 15-day sentence to run concurrently with Foster’s 60-day federal term. He was released from the Orange County jail on February 6, 1973, after serving the 15-day state sentence.

When released from the Orange County jail, Foster had served 64 continuous days in custody since his arrest on December 5, 1972. Foster believed that his confinement for more than 60 days in the Los Angeles County and Orange County jails discharged his federal jail time requirement, an apprehension which was apparently shared by the state judge who sentenced him to jail in Orange County.

After his release from jail, Foster moved to Palm Springs, where he was employed until arrested on a bench warrant on August 8, 1973. Foster was charged with violating the terms of his probation by failing to report to the Los Angeles County jail to serve his federal jail time, failing to report to the probation department, and failing to report his change of address to his probation officer.

The conviction for possession of an altered Federal Reserve Note was Foster’s first offense. Neither at the time of sentencing nor afterward was he informed by the district court, anyone from the Government, or his own attorney that he should report to the probation department for any purpose. No presentence report was prepared. He was not contacted by anyone from the probation department during his two months of confinement in Los Angeles and Orange County jails. He was not interviewed by a probation officer until his arrest on the bench warrant in August 1973.

On September 13 and October 1, 1973, the district court held hearings pursuant to its order to show cause why Foster’s probation should not be revoked. At the conclusion of the second hearing the district court found that Foster had violated the conditions of probation, vacated the prior probation order, and suspended further execution of the prior sentence. The court then placed Foster on five years’ probation, conditioned on his serving 180 days in the county jail on consecutive weekends. Foster appeals from this order.

Although Foster served no time in the Los Angeles County jail following imposition of sentence by the district court, this failure is not an adequate ground for revoking his probation. Confinement in the Los Angeles facility was not a condition of probation. The judgment specified only that the confinement be in a “jail-type institution.” Foster was confined at such an institution, Orange County jail, after sentencing by the district court. Foster must receive credit for the time served at the Orange County facility if, during that confinement, he was “in custody in connection with the offense or acts for which [the federal] sentence was imposed.” (18 U.S.C. § 3568.) However, we are unable to determine from the record before us the exact basis of his confinement in the Orange County jail. If the state would not have incarcerated him pending the outcome of his state prosecution but for the federal conviction, the time he spent in the Orange County jail is to be deemed “custody in connection with” the federal charge. (United States v. Eidum (9th Cir. 1973) 474 F.2d 579, 580-81; Davis v. Attorney General (5th Cir. 1970) 425 F.2d 238, 240.) On the other hand, if his custody in the Orange County jail was exclusively pursuant to the state offense and was not influenced by the federal conviction, no credit for time served is due. The record can be appropriately developed and the issue resolved on remand.

The record before us does establish that, because of the failure by the district court ■ to specify Los Angeles County jail and uncertainty as to the effect of detention at Orange County jail, it was reasonable for Foster to believe that the 60-day-jail-term portion of his sentence had been satisfied by his confinement in both the Los Angeles and Orange County jails. Accordingly, even if he must still serve a portion of his original 60-day term, Foster’s failure to report to the Los Angeles County jail was not a proper basis for revocation of probation. (United States v. Chapel (9th Cir. 1970) 428 F.2d 472, 474.)

Foster was not informed in any way that he had an obligation either to report to the probation department or to advise the probation office of his change of address. Foster’s failure to maintain contact with the probation department, therefore, cannot be a predicate for revoking his probation. (See United States v. Chapel, supra; United States v. Taylor (4th Cir. 1963) 321 F.2d 339, 341. See generally ABA Project on Standards for Criminal Justice, Probation § 5.1 (approved draft 1970).) Although the district court was not required to believe Foster’s testimony, disbelief is not a substitute for affirmative evidence that he was in any way informed that these duties were conditions of his probation. (Cf. Wessel v. Buhler (9th Cir. 1971) 437 F.2d 279, 282-283.) Nothing in the record supports a finding that Foster was informed of such conditions.

The record of the hearings pursuant to the order to show cause why probation should not be revoked reveals that the “interchanges between court and counsel were marked by expressions and revealed an attitude which hardly reflected the restraints of conventional judicial demeanor.” (Offutt v. United States (1954) 348 U.S. 11, 12, 75 S.Ct. 11, 12, 99 L.Ed. 11.) The district court’s frequent interruptions of Foster’s counsel and its intemperate remarks deprived Foster of a fair hearing. (ABA Code of Judicial Conduct, Canon 3; cf. United States v. Marshall (9th Cir. 1973) 488 F.2d 1169.)

The order revoking the original grant of probation and imposing the new terms of probation is vacated. The cause is remanded for the purpose of determining whether Foster is entitled to any credit on his original federal sentence for the time served in the Orange County jail.

      . The court said: “Mr. Foster, you are going to do a little more time, whatever the remainder is of the 60 days from that which you have already done. You have seen what it is in terms of five weeks. You are intelligent enough to make up your own mind. If you like it or you think there is nothing to it, all you have to do is come back to this Court within three years and we’ll make sure that that is increased about 20 times.”

      . The following excerpts from the record are illustrative:
      During the hearing on September 13, 1973, Foster’s counsel, Mr. Portman, attempted to explain to the court that his client had a good faith belief that he had fully served his federal jail sentence and to demonstrate that the record supported his client’s claim of ignorance of the conditions of reporting. Mr. Portman said: “I have consulted the probation file and there is no signature of the defendant.
      “If I may approach the clerk again.
      “On the standard temporary conditions of probation, which I believe is customarily tendered to a custody case either in the courtroom—
      “TIIE COURT: So what? Mr. Portman, he was told certain things and that he was on probation. Now, if they are not going to take it from my telling them, then they will go to the can instead of going on probation. If they think they have to sign something—
      “MR. PORTMAN: Your Honor, what I am saying is this : He tells me—
      “THE COURT: Don’t give me any of that, Mr. Portman, that because he didn’t sign anything he didn’t have to report to the probation officer. That is a bunch of bunk.”
      The following exchanges took place at the hearing on October 1, 1973 :
      MR. PORTMAN: “I think there certainly is basis for what the defendant says in stating that he believes he had served his 60-day sentence. In fact, at the least he had served approximately 45 days. At the most he had served 62 days or 60 days and two more days of state custody.
      “With regard to the second two points, the failure to — obviously the defendant did not report to the Probation Office and the defendant did not make the Probation Office aware of his current address.
      “The question is, should the defendant be violated when there is no indication that the defendant knew that he was required to do so. In other words, can—
      “THE COURT: Do you mean we have to spoon-feed him, is that right, Mr. Port-man? We have to spoon-feed and tell them, ‘Look, little boy, you better go upstairs and talk to the probation officer, because if you don’t go up and talk to him you are going to be in violation of probation.’
      “Mr. Portman, I am never going to do that to any defendant. If he wants probation from this court, then he ought to know what he is asking for, because probation, as I understand it, is largesse of the court, of the discretion of the trial judge
      “MR. PORTMAN: No one is arguing with that, your Honor. No one is arguing with that.
      “What I am saying, though, is in this particular situation perhaps he should have been advised by his attorneey at the time of what his obligations were. This was a case where there was not a pre-sentence report. The man was not interviewed by a probation officer, where most defendants who are in custody — and this man happened to be in custody — are told by the probation officer at that point of their obligations. This man was not. There is no evidence that he was ever told anything by his attorney. lie says he was not.
      “The Government has not put on any impeachment witness to the contrary. At the time he was sentenced he went immediately back to County Jail. He was not interviewed by anyone from the Probation Office.
      “I think we can look to his demeanor. He states that lie did not know of his obligations. He had never been on probation before. I feel to violate a man for not obeying a condition of probation when he is unaware and not through an intentional or an intended evasion but through just the circumstances of this particular case is to penalize him, I feel, unfairly.
      “I would submit on that, sir.
      “THE COURT: Do you want to make a test case of it, Mr. Portman? Is that what it is all about?
      “MR. PORTMAN: No, it is not all—
      “THE COURT: Is that what it is all about?
      “MR. PORTMAN : Sir, no—
      “THE COURT: Is that what it is all about? If you want to make a test case of it, you tempt me very much, but I won’t punish your defendant, your client, by what you might want to do, Mr. Portman, because I do not think it is the obligation of this court to spoon-feed a defendant.
      “MR. PORTMAN: Your Honor, I am not interested—
      “THE COURT: I won’t do it unless I am told to do it by the Court of Appeals. The only way they can tell me is by sending this case up.
      “MR. PORTMAN: I would hope that it would not happen.
      “THE COURT: If you want to do that, we can accommodate you and Mr. Foster very easily.
      “MR. PORTMAN: Your Honor, I would hope this case would not have to go to the Court of Appeals, and that is the reason—
      “THE COURT: To take a position contract [contrary] to that, that this man didn’t know that he was on probation and that he should be talking to a probation officer somehow or in some way is totally ridiculous, Mr. Portman, totally ridiculous.
      “MR. PORTMAN: Sir, I believe those to be the facts.
      “THE COURT: That is totally ridiculous, that any defendant can come in and say, T didn’t know I was supposed to report to the probation officer when you put me on probation,’ like it is some kind of a key to the outside world with no strings.
      “Mr. Portman, there are very many strings to probation, sometimes tougher than going to jail, sometimes tougher than going to jail. Every defendant ought to recognize that.
      ((
      “THE COURT: The court finds the defendant in violation of the probationary conditions heretofore imposed on January 20, 1973. The probationary order of January 20, 1973, is revoked.
      “The further execution of the sentence therein imposed is suspended and the defendant is placed on probation for a period of five years on the following terms and conditions:
      “That he obey all local, state, and federal laws, and that he comply with the rules and regulations set down for his conduct by the probation officer;
      “That lie serve the first 180 days in the County Jail.
      “So there won’t be any question about it, Mr. Portman and Mr. Foster, 180 days. You haven’t done 180 days if you stood on your head.
      “180 days is to be served by the defendant on consecutive weekends commencing October 6, 1973, at 8:00 a. m., and continuing until October 7, 1973, at 6:00 p. m., and continuing thereafter until the 180 days shall have been served.
      “Mr. Portman, if you want to test that, go ahead.
      “MR. PORTMAN: Your Honor, I would like to speak briefly to what the defendant has done before sentencing was imposed, if the court would care to hear.
      “THE COURT: No, I am not going to be a calculator, either, Mr. Portman.
      “MR. PORTMAN: As the court wishes.”