source: Caselaw Access Project

author: BAZELON, Chief Judge: LEVENTHAL, Circuit Judge, SOBELOFF, Senior Circuit Judge,

license: Public Domain

text:
    William S. COOPER, Appellant, v. William R. GOODWIN et al.
    No. 71-1100.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 21, 1972.
    Decided Feb. 12, 1973.

      M. Michael Cramer, Washington, D. C., with whom Paul H. Weinstein and Laurence Levitan, Chevy Chase, Md., were on the brief, for appellant.
    Patrick J. Attridge, Washington, D. C., for appellees.
    Before BAZELON, Chief Judge, SIMON E. SOBELOFF, Senior Circuit Judge for the Fourth Circuit, and LEVENTHAL, Circuit Judge.

       Sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   BAZELON, Chief Judge:

This is an appeal from a directed verdict for the appellees on appellant Cooper’s claim that he was injured by reason of Mr. and Mrs. William Goodwin’s negligent maintenance of their basement stairs. We reverse and remand this case for trial under the standard established by this court’s opinion in Smith v. Ar-baugh’s Restaurant, Inc.

I.

The relevant facts are not in dispute. On November 26, 1967, the appellant Cooper was invited for a social visit at the home of his friends the Goodwins. At the conclusion of his call, the Good-wins indicated to Cooper that he should leave through the basement area of the house. As Cooper started to descend the final three stairs down into the basement, he slipped. He reached for a handrail, but there was none. He fell and injured his back. Cooper subsequently underwent disc surgery and contends that he has suffered a serious, incapacitating injury as a result of the Goodwins’ negligence.

Cooper filed suit in the District Court, claiming damages for his medical expenses, loss of earnings, and pain and suffering. He alleged that the Good-wins had been negligent in several respects: their failure to have a handrail on the stairs; failure to have stair treads; maintaining a highly slippery coat of wax on the stairs; and their failure to warn of such conditions. The Goodwins denied these allegations, and raised as a defense that Cooper had been contributorily negligent in failing to “exercise reasonable care for his own safety while descending the stairs in the light of the obvious conditions.”

On the first day of trial, January 7, 1971, Cooper testified that as he placed his foot on the fatal step, it felt “very slippery just like you step on a sheet of ice;” that he “tried to grab ahold of something, but there wasn’t anything to grab hold of.” He also stated that Mr. and Mrs. Goodwin had not warned him that the stairs were waxed, or that the handrail, which was on the stairs when he had visited the year before, was missing.

Cooper’s counsel also introduced into evidence a portion of section 2508 of the Housing Code of the District of Columbia:

Interior stairs more than two risers high shall have an enclosing wall, balustrade, or other guard on each side and shall have a hand rail on at least one side.

The trial court correctly ruled that this regulation was “admissible, but solely for the purpose of permitting the jury to consider it in determining whether or not there was exercise of due care on the part of the defendant” and not as negligence per se.4 The judge stated that at the close of the trial, he would charge the jury in detail as to the consideration it should give this housing regulation.

On the following day, at the close of Cooper’s case, the Goodwins moved for a directed verdict on the ground that since Cooper was a social guest toward whom the homeowners owed only the duty of refraining from active negligence, no actionable negligence had been shown. The trial court agreed, stating “in my opinion there is no evidence of negligence in the case which would warrant it to go to the jury” and granted the motion.

Prom this ruling, Cooper now appeals.

II.

This ease illustrates the problems which, as we pointed out in our recent ruling in Smith v. Arbaugh’s, result from rigid applications of the common law classifications of trespasser, licensee and invitee to determine the duty of care owed by a landowner/occupier to persons entering upon his property. Harshness inheres because the trial judge removed from the province of the jury the determination of crucial factual issues and resolved them himself. Confusion over the exact duty owed to Mr. Cooper, a social guest responding to an explicit invitation to use the basement stairs, is apparent in the cases cited by counsel for their respective contentions. The trial court undoubtedly relied on the legal rule that a social guest may recover for active negligence only. This ruling, while it may have once comported with existing case law, we now hold to be in error.

The standard adopted in Smith — that “a landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances,” seeks to eliminate the harshness of and confusion over the common law classifications. Furthermore, as discussed in Smith, we believe that this standard places the crucial determination — whether Cooper suffered from an unfortunate accident, from his own carelessness, or from the Goodwins’ negligence — where it should be, with the jury and not the court. It is for the jury to consider and weigh all the circumstances of Cooper’s fall, including those which affect the foreseeability of the injury, the burden of avoiding the injury, and the care which appellant as a reasonable man could be expected to take for his own safety.

There may be some concern that less-affluent home owners and apartment dwellers will be severely penalized for the hazards of their dwelling places which they cannot afford to repair or remove. However, the financial capacity of the occupant to undertake safety precautions should be taken into account in determining what was, for him, reasonable maintenance conduct. Financial hardship should be no excuse for failing to take those measures which are within a defendant’s capacity — for example, an adequate warning. Despite the fears expressed in the concurrence, both this and the Smith opinion hold that the duty to maintain one’s property might be fully discharged by a warning of a dangerous condition. We are therefore not persuaded that owners of residential property should be excluded from the standard of reasonable care under all the circumstances.

Under this standard, the jury will have wide latitude to exercise its own rough common sense as to the degree of care which was reasonable for particular home owners or dwellers to take toward their guests. As we said in Smith this standard cannot be set in the abstract but will vary according to the circumstances of each and every case. Rather than rely on rigid labels and rules of law to provide the illusion of certainty and fairness, we choose the jury as the mature institution to take account of the infinite variety of fact situations which affect the reasonableness of human conduct.

Accordingly, appellant Cooper is entitled to a new trial at which the jury is instructed that the Goodwins owed him the duty of maintaining their property in a condition reasonably safe under all the circumstances. Whether or not the Goodwins breached this duty is a question for the jury.

Reversed and remanded.

LEVENTHAL, Circuit Judge,

concurring:

The rule established by this court prior to Smith v. Arbaugh’s Restaurant requires reversal of the judgment of the District Court. Plaintiff’s counsel called the court’s attention to the proposed Jury Instructions prepared by the Bar Association which set forth, insofar as pertinent:

“A Landowner owes to a guest (or licensee by invitation) the duty to avoid injuring him through negligence. In addition, he owes him the duty to repair dangerous conditions which are known to the owner and which would not be discernible to the guest or licensee, or to warn him of the existence of such dangerous conditions.”

This suggested instruction was annotated with a reference to Firfer v. United States which clearly supports the wording in the text. However, the defendant’s counsel persuaded the District Court to read Firfer in such a way so as to require active negligence, and to dismiss the case for lack of showing of active negligence. In my view this was a most strained reading, and the dismissal was error.

As for the retrial, I agree with the majority that the sound evolution that is the hallmark of the common law has brought it at the present time to the point where the traditional distinction between licensees and invitees is properly considered the relic of a bygone age. The often technical and arbitrary classifications — including Firfer’s further subdivision into invitees; licensees by invitation (social guests) and bare licensees — seem to promote confusion, and to strait jacket the courts in pursuit of good sense and justice.

In England the legislature adopted the recommendation of the Law Reform Committee to abolish the significance of the common law distinction between invitees, licensees, and contractual visitors, and to place on an occupier of premises the same duty — described as the “common duty of care” — to all lawful visitors. However, the English reflection is not necessarily precedent for revision of instructions to the jury as a “mature institution.” Indeed, it appears that the fact that the jury has virtually disappeared from negligence actions in England may have played some part in encouraging passage of the law. But the concept was ripe for extension, and has been applied in the United States by the Supreme Court in an admiralty decision, and then by the courts of California, Hawaii, Colorado, and recently, after our Smith opinion, by the Minnesota Supreme Court.

This does not, however, mean that the requirements of judicial administration in a modern, largely urban, industrialized society necessarily extend so far as to require a change in the liability of an occupant of land to a trespasser. I would follow the example of the Minnesota court, and defer, as a separate question, the issue of liability to trespassers, which was left unchanged in England. This was the problem that particularly prompted my separate opinion in Smith. The restraint counseled by the Minnesota court, on the ground that the issue of a plaintiff-trespasser was not before the court, is enhanced as to this court by the circumstances that it is no longer the authoritative expositor of the common law of the District of Columbia. So long as our modification of doctrine is not automatically extended for the benefit of trespassers, I agree that the general statement of doctrine need not distinguish between business and residential properties. In the case of trespassers, a higher duty may rightly be put on the occupier of a business property by virtue of both accessibility of insurance and the business reasons that tolerate what is technically a trespass. As for the majority’s comment that owners of residences may soundly be put under an obligation to trespassers because the owners’ financial position can be taken into account, if this means what it says, and owners of side-by-side residences may have different legal obligations depending on their financial means, it is an extraordinary statement for a judicial opinion, and in my view it is, as stated, an unsound proposition.

I don’t think it is proper to instruct the jury that the Goodwins owed plaintiff Cooper “the duty of maintaining their property in a condition reasonably safe under all the circumstances.” To begin with, language should be selected so as to provide in the direct statement of the rule for awareness that the liability may be discharged by giving a warning. More important, I would limit myself, at this time, to a statement of duty that is focused both on a person invited or permitted on the premises and on his reasonably expected use. I would follow the Minnesota opinion (fn. 7), and instruct the jury that a person who occupies land (or is otherwise responsible for its condition) has the duty to take such care, as in all the circumstances of the case is reasonable, to see that any person invited or permitted on the premises will be reasonably safe in using the premises for a purpose that was reasonably to be expected.

SOBELOFF, Senior Circuit Judge,

concurring:

My brethren, Judges Bazelon and Lev-enthal, are in agreement that the traditional distinctions between licensees and invitees are an archaic remnant of the common law and tend to confuse rather than assist in reaching a just resolution of disputed questions of liability. They agree further that with regard to all but trespassers no distinction should be made in the standard used to adjudicate the liability of occupiers of business and the occupiers of residential properties. In these sentiments, I fully concur.

Judge Bazelon would have the trial judge instruct the jury that the Good-wins owed Cooper “the duty of maintaining their property in a condition reasonably safe under all the circumstances.” Judge Leventhal, on the other hand, would phrase this instruction as “the duty to take such care, as in all circumstances is reasonable, to see that any person invited or permitted on the premises will be reasonably safe in using the premises for a purpose that was reasonably to be expected.” In respect to all but the question of the duty owed a trespasser, I see no meaningful distinction between the two formulations, although Judge Bazelon’s seems preferable as it is a simpler, more lucid explanation of the law and will be more easily understood by a jury. Under either proposed instruction, the jury is to consider in its deliberations all the circumstances surrounding the injury.

Only on the question of liability to a trespasser do Judges Bazelon and Leven-thal lock horns. Judge Bazelon would extend the “all the circumstances” test to include the duty of care owed a trespasser. See Bazelon Opinion at Footnote 13. Judge Leventhal seemingly would have the circumstances test govern only the liability to trespassers upon business property, but would maintain the rule that “a householder has no legal duty, as to trespassers entering without his consent, * * * subject to limited exceptions.” Actually, the question of the degree of care owed by property owners to trespassers is not presented in this case; it was neither briefed nor argued. The discussion about the duty to trespassers is entirely gratuitous and without foundation in the record. I would refrain, under these circumstances, from fully endorsing the position of either of my two distinguished colleagues in respect to the property owner’s liability to trespassers and would defer deciding this question until it is properly before the court and has been maturely developed in briefs and arguments upon a record that squarely raises the issue.

      . 152 U.S.App.D.C. 86, 469 F.2d 97 (1972).

      . The judgment sought in his complaint was $100,000 plus interest and costs.

      . Pretrial Proceedings, November 16, 1970, p. 3.

      . Appellant’s Appendix at pp. 3-4.

      . Appellant’s Appendix at p. 17. In order to facilitate our own ruling on this issue, this court requested appellees to file a supplemental memorandum on the question of whether this regulation, promulgated in 1966, is applicable to owner-occupied single-family homes constructed prior to its enactment; and whether it is strictly enforced. Both parties filed memoranda. On the basis of these submissions, we have determined that, while the regulation technically applied to ap-pellees’ home, in view of the Corporation Counsel’s enforcement practices, the regulation is admissible only as evidence of negligence.

      . Appellant’s Appendix at p. 18. The judge stated to the jury: “[T]he plaintiff has not established a case of liability on the part of the defendants. True, he was injured, but there has to be more than that. There must be a showing of actionable negligence by the defendants, and I have ruled as a matter of law that there is no showing of negligence on the part of the defendants.” Id. at 19.

      . Supra note 1.

      . See Smith v. Arbaugh’s Restaurant, Inc., supra note 1, 152 U.S.App.D.C. at 92, 469 F.2d at 103. In this case, the judge took from the jury the question of the degree of danger created by the waxed steps and the missing handrail; and the question whether these dangers were not discernible and should therefore have been the subject of a warning.

      . Both parties rely primarily on Firfer v. United States, 93 U.S.App.D.C. 216, 208 F.2d 524 (1953). The definition of the duty owed to a licensee by invitation is not only confusing, but conflicted. He “may expect the owner and his agents to exercise reasonable and ordinary care and to provide reasonably safe premises . . . and he may hold the owner liable for injuries resulting from active negligence.” (citations omitted) Id. at 219, 208 F.2d at 527. Understandably, Cooper relies on the first phrase, the Goodwins on the latter.

      . Since the trial judge himself admitted the D.C. housing regulation as evidence of a standard of reasonable conduct from which the Goodwins deviated, liis ruling of no negligence must have been premised on a different standard of care. There is, of course, some controversy as to what constitutes active negligence. Gleason v. Academy of the Holy Cross, 83 U.S.App.D.C. 253, 168 F.2d 561 (1948) establishes that property owners do owe to their social guests the duty of warning them of known but latent dangers. The trial judge’s refusal to allow this issue to go to the jury may thus have violated existing case law.

      . Although appellant did not have the benefit of the Smith opinion when preparing his appeal, he asserts that by a series of decisions in the District of Columbia, the discrete categorization of a social guest has been abandoned. In Smith, this process was brought to fruition.

      . Smith v. Arbaugh’s Restaurant, Inc., supra note 1, 152 U.S.App.D.C. at 89, 469 F.2d at 100.

      . Such as, in this case, the condition of the stairs, the absence of the handrail, the visibility of these factors, the hosts’ knowledge of any danger, and the guest’s familiarity with the premises and expectations toward his hosts. It would appear, although we need not decide, that the question of what degree of care should be exercised toward those traditionally labelled “trespassers” will, under the logic of this standard, depend to a large extent on the foreseeability of their presence and hence the foreseeability of the injury.

      . See Smith v. Arbaugh’s Restaurant, Inc., supra note 1, 152 U.S.App.D.C. at 89-92, 94, 469 F.2d at 100-103, 105.

      . 152 U.S.App.D.C. 86, 469 F.2d 97 (1972).

      . Revised Standardized Jury Instruction for the District of Columbia, of the Bar Association of the District of Columbia (rev. ed. 1968) #143 prepared by Junior Bar Association. The same wording appears in the 1963 edition, #128.

      . 93 U.S.App.D.C. 216, 208 F.2d 524 (1953).

      . Payne, The Oeeupier’s Liability Act, 21 Modern L.Rev. 359 (1958).

      . Prosser, Torts § 58 (3d ed.).

      . Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959).

      . Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972).

      . In the case of trespassers, a higher duty may rightly be put on the occupier of a business property by virtue of both accessibility of insurance and the business reasons that tolerate what is technically a trespass. Leventhal Concurring Opinion at p. 658.

      . Smith v. Arbaugh’s Restaurant, Inc., 152 U.S.App.D.C. 86, 97, 469 F.2d 97, 108 (1972) (Leventhal concurring).


author: PER CURIAM:

text:
    UNITED STATES of America v. Clifton L. PERSON, Appellant.
    No. 72-1422.
    United States Court of Appeals, District of Columbia Circuit.
    March 26, 1973.

      David I. Granger, Washington, D. C. (appointed by this Court), was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, William H. Collins, Jr., and James W. Diehm, Asst. U. S. Attys., were on the brief for appellee.
    Before LEVENTHAL and ROBB, Circuit Judges, and WILLIAM JAME-SON, United States Senior District Judge for the District of Montana.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   PER CURIAM:

Appellant, Clifton L. Person was convicted on a six count indictment, including felony-murder, 22 D.C. § 2401, attempted robbery, 22 D.C. § 2902, and assault with a dangerous weapon, 22 D.C. § 502, involving the robbery of Carolyn Triplett and Jeffrey Crandell, and the shooting of Crandell when he came to the defense of Miss Triplett. Appellant presented no witnesses or other evidence, but raises two issues on appeal: (1) prejudice arising from the loss of grand jury minutes by the court reporter, and (2) the admission of pre-trial and in-court identification by Miss Triplett. We affirm.

It was established at a pre-trial hearing that the court reporter labelled her notes and filed them in her office after recording the grand jury proceedings. The only witness before the grand jury was Detective Fickling of the homicide squad. In his pre-trial testimony he summarized the statements of the other witnesses and the results of his investigation. Before giving this testimony, he read the statements of the witnesses whom he had not personally interviewed, and he based some of his testimony on a case summary he had prepared. He did not, however, read anything to the grand jury.

The court reporter made every effort to locate the notes, to no avail. Because of this development, the prosecutor voluntarily proffered that Detective Fick-ling would not be called to testify at trial. He also gave appellant all possible discovery, including the names of witnesses, statements of all witnesses, FBI material, and all physical and tangible evidence. He also turned over the resumé prepared by Detective Fickling, from which the detective testified to the grand jury.

It was not error for the court to proceed in the circumstances. Given the full disclosure by the prosecution, the fact that Detective Fickling was not called to testify, the orderly procedures established for preserving minutes, and the good faith efforts made to retrieve them when lost, there is no showing of bad faith, or the kind of negligence, going beyond the mishap all of us may encounter, that warrants a sanction as extreme as dismissal of the indictment, or the exclusion of the witnesses whose statements were summarized to the grand jury. See United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, aff’d after remand, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971). There is no realistic basis, beyond extrapolated speculation, for supposing that the availability of the lost minutes would have undercut the prosecution’s case.

Miss Triplett was the only eyewitness to the robbery and shooting. There were three robbers, and appellant, whom Miss Triplett testified fired the shot which killed her escort, was identified by her for the first time at a line-up. At trial she testified that she had gotten a clear look at appellant during the robbery for about one minute, that his face was illuminated by a light across the street, and at one point his face was two feet from her.

Prior to the line-up, Miss Triplett had seen no photographs of the accused, but she knew three men, including someone named Person, had been arrested for the crime. She identified appellant at the line-up. She felt “very strongly” about her identification, and indicated that she wished to make an accurate identification. Despite this perfectly good line-up identification and the independent basis she had for the identification from her view of the offender during the commission of the crime, appellant would like to suppress the identification because after the line-up Detective Fickling told her she had “done well” and because she would suspect that the three men previously arrested would be in the line-up.

The only reason advanced as to why the line-up might be unduly suggestive, under Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), was that she knew from the newspapers that three persons had been arrested. While that knowledge may be taken into account where there is other indication of suggestivity, the mere fact that suspects are included within the line-up, and that witnesses know or assume this to be the case, is an inescapable aspect of line-up identification procedure. See United States v. Gambrill, 146 U.S.App.D.C. 72, 75, n. 3, 449 F.2d 1148, 1151, n. 3 (1971). As to the pat on th,e back from Detective Fickling, while it might conceivably reinforce and strengthen a resolve to identify appellant in court, realistically such a remark would add little in that respect to the fact of being called as a trial witness. There is no reason to suppose that the detective’s remark was more than a comforting gesture to a witness, who was, quite naturally, on edge. It was better left unsaid, but does not seem to us to be the kind of action that materially affected her certainty as to the identification. The jury had before it the testimony as to the (slightly more tentative) line-up identification and was likely to credit this — which was uninfluenced by the subsequent remark — far more than the taken-for-granted in-eourt identification. Clemons v. United States, 133 U.S.App.D.C. 27, 40, 408 F.2d 1230, 1243 (en banc 1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). This problem was available for argument to, and consideration by, the jury. The interest of justice does not require a rule of conclusive prejudice.

Affirmed.


author: LEVENTHAL, Circuit Judge:

text:
    UNITED STATES of America v. Walter E. ASHE, Appellant. UNITED STATES of America v. Walter E. ASHE, Appellant.
    Nos. 71-1033, 71-1509.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 12, 1972.
    Decided March 26, 1973.

      Michael Nussbaum, Washington, D. C. (appointed by this Court) for appellant. James P. Davenport, Washington, D. C., also entered an appearance for appellant, in No. 71-1033.
    Herbert M. Silverberg, Washington, D. C. (appointed by this court) for appellant in No. 71-1509.
    Guy H. Cunningham, III, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. John D. Aldock, Asst. U. S. Atty., at the time the record was filed, also entered an appearance for appellee.
    Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges.
   LEVENTHAL, Circuit Judge:

This is the third time that we have been asked to review some phase of the Government’s case against Walter Ashe. In this latest chapter of the proceedings, Ashe was found not guilty by reason of insanity of a violation of 22 D.C. Code § 2801, carnal knowledge of a female child under sixteen years of age. In 71-1033, Ashe appeals the finding of guilt of the commission of the act, which is implicit in an acquittal by reason of insanity. In 71-1509, he appeals from the determination, following a Bolton hearing for his continued custody on the basis of dangerousness because of mental illness.

I.

The indictment charges that on October 14, 1967, Walter Ashe had sexual relations with his daughter Mary, then age ten. The Government’s evidence consisted of the testimony of Mary Ashe; the corroborative evidence of Mary’s then eight or nine year old brother Walter, Jr. and of their mother Mrs. Ashe, both of whom were witnesses to the incident; the testimony of Thomas Ashe, a still-younger brother, who was not a witness to the event itself; and the expert testimony of a pediatrician who examined Mary after the incident. On May 9, 1968, Ashe was brought to trial. Mrs. Ashe invoked her marital privilege. Mary and Walter, Jr. were questioned in order to judge their competency to give evidence. Walter, Jr.’s responses were unclear, and he eventually became unresponsive. At length, defense moved for a mistrial in order that a more thorough examination of Ashe’s capacity to stand trial be undertaken. This motion was granted by District Judge Smith.

Ashe was determined fit to stand trial and on October 2, 1968, a second trial was begun before District Judge Green. At this trial, the Government rested its case substantially upon the evidence of Mary and Walter, Jr. Mary’s testimony was elicited only with the greatest of difficulty. The first time she took the stand, she did not give damaging testimony. She was excused and later recalled and eventually, after she refreshed her recollection by reading over the statement she had made to the police, her testimony did establish a corpus delicti. The Government sought corroboration from Walter, Jr.; the child’s response to the questions he was asked were badly garbled and generally difficult to understand. Walter, Jr. did not seem able to place himself at a particular place at a particular time, and his testimony taken as a whole did not specifically corroborate the incident charged in the indictment.

The District Court, sum sponte and over the objection of Ashe, raised the question of insanity, and Dr. Mauris Platkin, a St. Elizabeths psychiatrist, testified that Ashe had a personality structure which was not inconsistent with committing deviant sexual acts. (Tr. p. 544: “. . . it is not at all improbable that he could have committed this kind of act. It certainly relates to this condition.”) The jury found Ashe guilty, rejecting the insanity issue. Appeal was taken to this court, and on May 12, 1970, we vacated the conviction and remanded. United States v. Ashe, 138 U.S.App.D.C. 356, 427 F.2d 626 (1970). We noted that the Government’s case on corroboration was very thin, and that the real corroboration had come from Dr. Platkin. This we held to be unduly prejudicial. “[T]he judge interposing an insanity defense did have the obligation to establish bifurcated trial or some other protective procedure to avoid prejudice to the defendant from the court’s insistence of airing a defense interposed contrary to the defendant’s will.”

On August 20, 1970, the Government began civil commitment proceedings against Ashe under 21 D.C.Code § 541 et seq., but the Commission on Mental Health found that Ashe was not dangerous because of mental illness.

A third trial was consequently begun on November 30, 1970. The proceedings were bifurcated, ánd the Government’s case developed much more smoothly than it had in the trial of October, 1968. Mary Ashe’s testimony was direct and to the point, Walter, Jr. coherently corroborated her story, and Thomas Ashe also gave evidence which was generally corroborative as well. After hearing the evidence, the jury brought in a verdict of guilty, whereupon the second stage of the trial — dealing with the insanity issue — was begun. Only one witness was presented, Dr. Robert Robertson of St. Elizabeths. After Dr. Robertson was heard, the jury retired and quickly brought back a verdict of not guilty by reason of insanity. Ashe was committed to St. Elizabeths for observation, and on February 16, 1971, a Bolton hearing was begun before Judge Green, testing the question of whether continued retention in custody should be ordered due to Ashe’s dangerousness because of mental illness. The Bolton jury found, after hearing almost a dozen witnesses, that Ashe was dangerous due to his mental illness. Judge Green thereupon remanded him to the custody of St. Elizabeths until such time as he was no longer dangerous.

Ashe petitioned for habeas corpus, claiming that his detention for observation at St. Elizabeths was longer than that authorized by Judge Green and that he had not been accorded treatment nor the “least-restrictive alternative” in his disposition. This petition was summarily dismissed by the District Court. We vacated the dismissal in Ashe v. Robinson, 146 U.S.App.D.C. 220, 450 F.2d 681 (1971), and remanded for further proceedings. Nothing has been done about this remand to date, and counsel informed us at oral argument that no further action in that matter is contemplated.

II.

The Notice of Appeal in 71-1033 was somewhat ambiguous as to what decision was being appealed from. The Government argues that this appeal is evidently from the interlocutory finding of “guilty” by the jury, but that a “guilty” verdict in a bifurcated proceeding, if followed by a verdict of not guilty by reason of insanity, is not a “final decision” within the meaning of the rule that permits appeals only from such decisions. The Government further argues that Ashe failed to file his notice of appeal within the ten-day period of Rule 4(b), Federal Rules of Appellate Procedure. The appeal was noted 13 days after the insanity verdict of the jury and several months prior to the Bolton hearing.

We disagree with the Government’s contention. We conclude that we have jurisdiction to hear the appeal, and to consider both the sufficiency of the Government’s case underlying the implicit finding of guilt and the validity of the detention order. We need not determine whether a bare verdict of not guilty by reason of insanity is “freighted with sufficiently substantial indicia of finality to support an appeal” see Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963); United States v. Fort, 133 U.S.App.D.C. 155, 409 F.2d 441 (1969). Certainly the court ordered Ashe’s commitment for examination based solely on the jury verdict, and this culminated in an order for continuation of commitment following a Bolton hearing. Since we have consolidated the appeal from the verdict of not guilty by reason of insanity, and the appeal 71-1509, from the order of continued commitment, we do not have to decide the technical question as to whether our consideration of the question presented derives from one appeal, or the other, or both.

III.

Appellant contends that Walter Ashe, Jr. was not a competent witness. For support, appellant cites Walter, Jr.’s performance at the voir dire before Judge Smith in the mistrial and his testimony, upon which we commented in Ashe-I, at the trial before Judge Green in 1968. In both of these instances, Walter — in startling contrast to his performance at the third trial — was almost an unreachable witness. Although it is difficult to isolate any determinative single reason therefor, it is reasonably plain that poor language skills, together with the intimidation of the courtroom and the obvious painfulness of the subject — which precipitated the dissolution of the Ashe family and the childrens’ dispersion into Junior Village and various foster homes —worked a severe inhibition on the child.

Counsel submits that our first opinion, Ashe-I, in effect held that Walter, Jr. was not competent to testify, or that at least his testimony was non-corroborative. If it was non-corroborative, then of course the Government’s proof in Ashe-I failed for want of the corroboration we require in proof of sex offenses. And if, in turn, the Government’s proof failed in Ashe-I, then the rule in our circuit is clear that another trial cannot be brought.

The Government’s response to this chain of reasoning is that even if there had been no corroboration, there was still ample evidence to convict Ashe of simple assault. We do not need to pass upon this response. We believe that Walter, Jr.’s testimony in Ashe-I was sufficient to meet the corroboration requirement. That rule must be applied in light of its purpose, to prevent fabrication of easily-fabricated crimes, and not to interpose a technical barrier that rejects a substantial showing of guilt. We attribute most of the deficiencies of Walter, Jr.’s testimony in Ashe-I to inferior language skills and emotional turmoil which have since substantially abated. The transcript from Ashe-11 certainly suggests a child functioning well within the limits of intellectual normality. We are sensitive to the point that Walter, Jr.'s testimony in Ashe-1 was weak and garbled, but we attribute the weakness to interference factors rather than to any fundamental inability to observe with accuracy. A family where a father is having indecent or incestuous traffic with his children is surely a family in turmoil. In addition to the ordinary and normal testimonial inadequacies which are a part of immaturity, the children of such families are likely to exhibit all sorts of emotional abnormalities which may often prevent their effective communication, especially in a context as intimidating as g crowded, unfamiliar courtroom. Unless we want in effect to wipe the enforcement of the carnal knowledge statute out of the incest situation, we must be prepared to accept evidence from some seriously mixed-up young witnesses, and to be flexible in assessing their competency and evidentiary sufficiency.

Our opinion in Ashe-I recognized that the Government’s case was thin, but we did not hold it legally insufficient. The thin Government evidence meant that the error of permitting Dr. Platkin’s testimony in evidence, without protecting precautions such as bifurcation having first being taken, could not be harmless. We are satisfied that the retrial cured this prejudice. The record in Ashe-I indicates that the competency determination was made in open court outside the presence of the jury. The transcript shows that the defendant was present, as is his right under the Sixth Amendment. The procedure was sound. The jury’s finding of guilt, which is a part of its total determination of not guilty by reason of insanity, is not infected by legal insufficiency or error, and will not be disturbed.

IV.

We now address the issues raised in 71-1509, which attacks certain aspects of the Bolton hearing. At the end of that hearing, the jury found that Ashe was dangerous because of mental illness and Judge Green thereupon ordered his commitment.

A. Appellant claims that the jury voir dire was not adequate for purposes of discovering whether there were some prospective jurors who, knowing that Ashe had recently been found to have committed a felonious sex crime and had been declared insane, might be prejudiced on the question of whether Ashe was now “dangerous as a result of mental illness.” Counsel submitte'd twelve questions, which are set out in footnote 2. The questions Judge Green asked were these (Tr. pp. 27, 28) :

1. Are there any of you who feel any sort of prejudice toward people who have been confined in jail, mental hospitals, Saint Elizabeths, or would this be such that it would prevent your reaching a fair decision in this case?
2. Do any of you feel that the conviction of a crime, committing an act of sex with one’s own daughter, would necessarily make one committable to a mental hospital ?
3. Do any of the members of the panel have any employment or patients or anyone in their family who has ever been employed at Saint Eliza-beths Hospital or been a patient there ?
4. Does any member of the panel have anyone in their family or have ever themselves suffered from any mental disease or defect?
5. Are there any reasons at all why any member of the panel would prefer not to sit on a case of this kind ?

Seven of the prospective jurors told the court of some misgiving they had, based on the questions asked, and six of these were, upon further questioning by the court, excused. While the questions probing the ability of the jurors to render a fair verdict might have been improved, we are satisfied that they did an adequate job of discovering possible prejudice. Certainly appellant cannot claim reversible error for the denial of the argumentative — and equally unfocused — questions requested by appellant.

B. Appellant also argues that the experts were improperly asked whether, in their opinion, Ashe was or would be dangerous. Ashe relies on our decision in Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967). As counsel succinctly put it at argument, “Expert witnesses should never be allowed to speak the magic words.”

There are different vectors of considerations that culminate in a psychiatrist’s resultant conclusion as to “dangerousness,” yea or nay. Some aspects are primarily determined by his expertise, and others by his value preferences in matters involving community values where the ultimate decisions must be made by the court and jury. The same may also be said of “mental illness” as a legal concept, for this is not controlled by the medical conception. Yet it has not been suggested that a psychiatrist may not speak, in parlance that is natural and understandable, of mental illness. The possibility of confusion must be obviated by attentive explanation, sorting out of factors, and cross-examination.

The issue of “dangerousness” is different from the issue of “productivity.” Washington held that experts called to testify on the issue of insanity must not speak in terms of productivity. Our concern was against oversteering of the jury on the ultimate decision of criminal responsibility, one that “intertwine[s] moral, legal and medical judgments,” King v. United States, 125 U.S.App.D.C. 318, 324, 372 F.2d 383, 389 (1967). The problem of “oversteering,” identified in Washington, is not avoided completely but it is substantially diluted here, in a Bolton hearing on the issue of dangerousness. As we pointed out in Brawner a critical reason for the Washington opinion was the lack of a generally accepted meaning for the “product” term. But we specifically held that the expert could testify on the causal relationship between mental disease and the existence of substantial capacity for control at the time of the act. And so in the case at bar, where there is no use of a term like “product” that has no accepted meaning, the expert can testify on the ultimate causal issue. The jury can be expected, with reasonable confidence, to assess the concept of “dangerousness” for itself and in such a way as to reflect community values.

In a Bolton hearing, the jury is aware that the witness is not making a scientific finding as to a past fact, but is making an estimate as to the future— the kind of judgment that doubtless reflects some margin of doubt yet is part of his clinical function. Of course the judge clearly charges it is the jury’s role to make the determination. Such steering by experts as exists is due not to words and misunderstandings as to the natural tendency to be respectful of the comments of those who have given special study to a subject. It would likely persist ‘to substantially equivalent degree if the expert were merely asked to give his conclusions as to the consequences he foresaw if the individual were released to the community. The substantive criterion for committability is fixed by the statute. It uses terms and concepts that are common parlance for both experts and laymen. The jury needs whatever help the experts can provide, and that should not be cramped by interdicting the use of these terms in the testimony.

On the other hand, the jury hearing a psychiatrist’s testimony of dangerousness, should be informed of its various components: to what extent it reflects a predicting of behavior (often palpably dangerous); whether it is prediction of an occurrence of a kind of behavior that, however deviant, might be considered by the jury to lie in the realm of the private, the eccentric, or the offensive, but not the dangerous. The expert must be prepared to state the bases for his conclusion and be aware that the attorney, seeking to expose the predicate of the expert’s conclusion is not necessarily challenging his expertise within its proper realm, but may properly be seeking to ask the jury to come to a different ultimate conclusion on the basis of the community-value factor involved. Following the lead of our Brawner opinion we hold that henceforth the Washington Appendix should be used in Bolton hearings, following adjustment for the difference in issues, should be sent to the experts in advance of hearing, and should be read at least once to the jury.

C. Appellant strongly contends that Dr. Reisen should have been qualified as an expert in psychiatry and allowed to testify as such. Dr. Reisen is a physician with several years of background — both practical and academic — in psychiatry. He is not a board-certified psychiatrist or neurologist, but of all the physicians who testified, Dr. Reisen knows Ashe best. At oral argument, we were advised that Dr. Reisen is in charge of the observation ward at St. Elizabeths, and is entrusted by the Hospital with considerable unsupervised responsibility. Based on what we glean from the record and what we heard at oral argument, we conclude Dr. Reisen could have qualified as an expert in psychiatry.

We do not however find reversible error, for these reasons: First, counsel at trial did not detail the extent of the responsibility which St. Elizabeths has entrusted to Dr. Reisen. More important, Dr. Reisen was permitted to testify as a physician and to express his opinion on Ashe’s probable future dangerousness. He was not allowed to testify directly on Ashe’s mental status. But other questions, intimately related to mental status, were allowed. Specifically, he was allowed to testify about how, in his opinion, Ashe would function in the community if released from the hospital. The thrust of that question operates, in effect, in the same way as a question put in terms of mental illness and dangerousness. The witness’s projection of the individual’s functioning, in the absence of commitment, necessarily embraces an appraisal of the individual’s mental and emotional capacities and behavioral controls.

Finally, Ashe’s counsel was able to present the testimony of Dr. Paul Weis-berg, who did qualify as a psychiatric expert, that appellant was not suffering from mental illness. Dr. Weisberg’s testimony on direct was clear and unequivocal, and the skillful cross-examination by the Assistant U.S. Attorney did little to dislodge or becloud any of that testimony. Dr.. Reisen’s greater familiarity and contacts with Ashe might have given his opinion more weight with the jury. But in a context where the judge was not advised of critical aspects of Dr. Reisen’s responsibility at St. Elizabeths, and permitted Dr. Reisen to give testimony concerning the functioning of Ashe if released, we do not think the interest of justice would be served by a finding of reversible error because he did not expressly corroborate Dr. Weis-berg’s testimony on the absence of present mental illness.

D. Appellant’s last major argument challenges the “preponderance of evidence” standard which the Bolton jury was charged it must use in its findings of mental illness and dangerousness. Our opinion in United States v. Brown is the contrary.

We have considered appellant’s other arguments and find them without merit.

Affirmed.

      . Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968).

      . Appellant’s proposed voir dire questions were:
      1. The law controlling this case requires that a person be both mentally ill and likely to, injure himself or others before lie’s involuntarily confined in a mental institution.
      2. Are there any of you who do not agree that there are many so called mentally ill or disturbed persons who are walking the streets, enjoying their liberty, and not harming anyone (including themselves) ?
      3. Are there any of you who, after searching your feelings, feel any sort of prejudice towards people who have been confined in jail, mental hospitals — St. Elizabeths— which might render you unable to reach a fair decision in this case.
      4. Are there any of you who do not agree that the burden is on the government to establish that the defendant is mentally ill and likely to injure himself and others, and the fact that he is in the courtroom today does not raise a presumption of either?
      5. Are there any of you who feel that the conviction of a crime of incest, or committing an act of sex with one’s daughter, necessarily should make one committable to a mental hospital?
      6. Do you jurors agree that the burden is on the government to establish in this case that as the result of a mental illness the defendant is likely to repeat the act of which he stands convicted, or commit some other dangerous act, in order to commit him to SEH?
      7. Do you jurors agree that while psychiatrists may testify as to their opinion in this case, it is not binding on you and you may choose to disregard it, or weight it lightly, if your own experience and intuition and judgment lead you to another conclusion?
      8. Do you jurors agree that patients at St. Elizabeths Hospital are not presumptively dangerous?
      9. Do you jurors agree that mental patients — or people suffering from some mental disturbance — are not necessarily dangerous to society, or themselves, and should not necessarily be confined in mental institutions?
      10. Do any of you have any mental illness in your family or among your close friends, which might prevent you from rendering a fair decision in this case?
      11. Do any of you have policemen or law enforcement officers in your family?
      12. Are there any reasons — perhaps reasons which you may find hard to articulate — which would make any of you uncomfortable in sitting on this kind of case and rendering a fair decision?

      . J. Goldstein and J. Katz, Dangerousness and Mental Illness; Some Observations on the Decision to Release Persons Acquitted By Reason of Insanity, 70 Yale L.J. (1960) 225.

      . United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972, en banc).

      . See opinion at p. 38, 471 F.2d at p. 1006: “It is the responsibility of all concerned — expert, counsel and judge — to see to it that the jury in an insanity case is informed of the expert’s underlying reasons and approach, and. is not confronted with ultimate opinions on a take-it-or-leave-it basis. The Appendix to Washington is useful in this regard— assuming appropriate modification.

      . 155 U.S.App.D.C.—, 478 F.2d 606 (1973).


text:
    UNITED STATES of America v. Alan CRAWFORD, a/k/a Alan V. Crawford, Appellant.
    No. 72-1480.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 8, 1973.
    Decided March 29, 1973.
    Edgar W. Holtz, Washington, D. C., with whom Dorothy J. Glancy (both appointed by this Court), was on the brief, for appellant.
    Frederick C. Moss, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
    Before LEVENTHAL and ROBB, Circuit Judges, and WILLIAM J. JAME-SON, Senior United States District Judge for the District of Montana.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   PER CURIAM:

There was a witness confrontation close to the time and place of the offense. The witnesses, Mr. Gripper, the victim of the robbery, and Mr. Sprow, who observed the crime from across the street, accompanied the police in their cars in an effort to locate the suspect. One witness spotted on the street what he believed to be two of the (four) robbers, and these suspects were presented to the witnesses for identification.

Our opinions have established that such a showup is permissible even though it has inevitable elements of suggestivity, because of the general reliability of such identifications close in time to the offense. Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969); Wise v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206 (1967), cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968).

Appellate counsel argued to us that the suggestivity of these confrontations was “undue,” was greater than need be, in view of the fact that (a) the witnesses were not separated at the crucial time when they, one after the other, set forth their identification, and (b) because the two suspects were presented together, although one of them, Barksdale, was clearly in the mind of Sprow as having been one of the robbers, raising the possibility that appellant Crawford was identified merely by association at the time of apprehension.

We have accepted the inherently suggestive aspect of prompt confrontation showups as a tradeoff in the need to promote efficient police work, and indeed to enhance this: with the general reliability of prompt identifications. This acceptance of suggestivity in prompt confrontations as an inescapable cost of effieient police administration is subject to the limitation that the showups not be more suggestive than necessary. It is for that reason that we have set forth the need for separate identifications by the witnesses. See United States v. Wilson, 140 U.S.App.D.C. 331, 435 F.2d 403 (1970).

However, we need not in this case pursue these questions, or what they portend as to the propriety of the street presentations made in this case, since in any event there is a determination by the District Court, supported by the evidence, that the observation at the time of the offense suffices to support the in-court identification, and that any question as to the street confrontations imposed no intervening taint.

Affirmed.


text:
    UNITED STATES of America, Appellant, v. Louis MANTELLO et al. UNITED STATES of America, Appellant, v. John Constantine COMMINGS et al.
    Nos. 72-1519 to 72-1521.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 13, 1973.
    Decided March 30, 1973.
    John J. Robinson, Atty., Dept, of Justice, of the bar of the Supreme Court of Texas, pro hae vice, by special leave of court with whom Harold H. Titus, Jr., U. S. Atty., and Sidney M. Glazer, Atty., Dept, of Justice, were on the brief, for appellant. John A. Terry and Stephen W. Grafman, Asst. U. S. Attys., also entered appearances for appellant.
    William A. Borders, Jr., Washington, D. C., for appellee Simkins in No. 72-1520 and also argued for all appellees.

      Francis X. Grossi, Jr., Washington, D. C., with whom Vincent J. Fuller, Washington, D. C., was on the brief, for appellees in No. 72-1521 and also argued for all appellees.
    H. Clifford Allder, Washington, D. C., was on the brief for appellees Smyrnas, Bellosi and DiNenna.
    Lawrence Speiser, Washington, D. C. (appointed by this Court), entered an appearance for appellee Berman and certain other appellees.
    Edward Menard, Oxon Hill, Md., entered an appearance for appellee Man-tello.
    Kurt Berlin and Frank Smith, Washington, D. C., for appellee Henry Johnson.
    Before LEVENTHAL and ROBB, Circuit Judges, and WILLIAM J. JAMESON, Senior United States District Judge for the District of Montana.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   PER CURIAM:

This is an interlocutory appeal by the Government from the order of the District Court, dated March 29, 1972, which granted the defendants’ motion to suppress four intercepts of telephone conversations. The intercepts followed the issuance of judicial authorizations secured under the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. However, the District Court held that the evidence received on these intercepts was inadmissible, and subject to motion to suppress because of the failure to comply with 18 U.S.C. § 2516(1) which requires that the decision to seek a judicial “wiretap” order be authorized by “The Attorney General, or any Assistant Attorney General specially designated by the Attorney General . . . ”. We affirm.

Despite affidavits to the contrary presented to the United States District Court in support of the application for an order authorizing the intercepts, neither Attorney General Mitchell nor his “designated” deputy Will Wilson personally authorized, or indeed had any knowledge of, three of the four intercepts in question. Instead Mr. Sol Lindenbaum, Executive Assistant to the Attorney General, decided to designate Will Wilson to authorize the wiretaps, and affixed Attorney General Mitchell’s signature to that designation. Subsequently, one of two different Deputy Assistant Attorney Generals, either Harold Shapiro or Henry Petersen, affixed Will Wilson’s signature to the authorization.

The Government seeks to support this procedure as a “substantial” compliance with the law, urging e. g., that Mr. Lindenbaum was the “alter ego” of the Attorney General. We cannot agree. The statutory language before us is clear. Only the Attorney General or an Assistant Attorney General designated by the Attorney General is permitted to make the determination of the Executive Branch that it requires intercepts, and to authorize applications to courts for intercept authority. Congress intended to limit the power to authorize the making of applications for wiretaps to these designated individuals, officials who had been nominated to high office and confirmed by the Senate for such office. The Congress deliberately limited the authority of the Attorney General to delegate this responsibility. That limitation on his authority to delegate cannot be circumvented by “alter ego” rationalization.

The legislative history and policy behind this congressional enactment have been extensively reviewed by Judge So-beloff in United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), and Judge Duniway in United States v. King, 478 F.2d 494 (9th Cir., decided February 28, 1973). Both Circuits suppressed wiretaps on similar facts, and we adopt their results and rationale. To the extent United States v. Pisacano, 450 F.2d 259 (2d Cir. 1972), is to the contrary, we respectfully disagree.

In the ease of the Commings tap, we also affirm the District Court. Although Attorney General Mitchell personally designated Will Wilson to authorize the tap, Wilson did not himself do so. The Government has not disputed that the probable cause affidavit submitted in support of the application for the tap relied almost entirely upon evidence seized in the Mantello taps which the District Court held were illegally obtained. This was clearly “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Affirmed.

District Judge JAMESON dissents, for the reasons stated in his dissenting opinion in United States v. King, 478 F.2d 494 (9th Cir., decided February 28, 1973).


author: THORNBERRY, Circuit Judge.

text:
    PPG INDUSTRIES, INC., Plaintiff-Appellant, v. CONTINENTAL OIL COMPANY, Defendant-Appellee.
    No. 72-3148.
    United States Court of Appeals, Fifth Circuit.
    May 9, 1973.
    Rehearing Denied June 7, 1973.

      Oliver P. Stockwell, Fred H. Sievert, Jr., Lake Charles, La., Raymond A. Cook, Alfred H. Ebert, Jr., Houston, Tex., David A. Cort, Richard C. Packard, Pittsburgh, Pa., for plaintiff-appellant.
    Austin W. Lewis, Gene W. Lafitte, New Orleans, La., John C. Snodgrass, Keith W. Blinn, Harry M. Reasoner, John E. Kennedy, Joseph C. Johnson, Houston, Tex., for defendant-appellee.
    Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge.
   THORNBERRY, Circuit Judge.

Appellant PPG Industries (PPG) filed this diversity action below in a Louisiana federal court against appellee Continental Oil Company (Conoco) for a declaration of the parties’ rights under a gas sale contract and for an injunction to restrain Conoco from performing certain acts which would constitute a breach of the contract or impair Conoco’s ability to perform it. On Conoco’s motion the district court stayed further proceedings pending final determination of an action for a declaratory judgment previously filed by Conoco against PPG and one other party in a Texas state court which raised the same issues as the federal suit. PPG appeals from the stay order under 28 U.S.C.A. § 1292(b), having obtained the requisite certificate from the district court and permission from this court to take this interlocutory appeal. We affirm the ruling of the district court.

Under a 1963 contract, last amended in 1969, Conoco agreed to sell to PPG on a continuing basis until 1987 large quantities of natural gas which PPG needed for operation of its large chemical plant at Lake Charles, Louisiana. PPG planned to rely heavily on this gas to support expanded operations at the Lake Charles plant, and it so informed Conoco when the contract was amended in 1969. By 1972, however, Conoco had realized that the contract had become “impossible or commercially impracticable of performance because of the drastic national shortage of natural gas and government regulation,” and it notified PPG that in 1973 or 1974 it would be unable to supply the amounts of gas agreed upon. PPG and Conoco representatives arranged to meet on May 22, 1972 to discuss the contract and to seek solutions to the problem caused by the gas shortage. On May 10, 1972, about two weeks before the meeting, Conoco filed suit in a state district court in Harris County, Texas against PPG and Olin Corporation, another of its major gas customers, for a declaratory judgment that its failure to supply the amounts of gas originally contemplated would not be a breach of its contractual duties. Subsequently, Olin Corporation was granted a severance, and Conoco amended its original petition to add other gas customers as declaratory defendants.

Since the filing of the original Texas suit by Conoco, PPG has undertaken several manuevers designated to relocate the litigation on the contractual questions in Louisiana, where it believes the applicable choice-of-law rule and the substantive contracts law are more favorable, and Conoco has battled — successfully so far — to confine the litigation to the Texas forum. PPG has sought three times to remove the Texas suit to a federal court in Texas, which might then transfer the case to a federal court in Louisiana; finding a slightly different set of defendants on each removal attempt due to severances of some defendants and additions of others, the federal district court in Texas each time remanded to the state court, either because the requisite diversity did not exist between Con-oco and each of the defendants or because one of the declaratory defendants was a Texas resident. See 28 U.S.C.A. § 1441. PPG also filed suit on May 31, 1972 against Conoco in a Louisiana court in Calcasieu Parish, but that court dismissed the action in deference to the Texas court, which had issued a temporary restraining order prohibiting PPG from proceeding further in the Calcasieu Parish suit.

The instant action for declaratory and injunctive relief, filed by PPG on June 29, 1972 in the federal district court in Lakes Charles, Louisiana represents PPG’s latest tactic to gain access to a Louisiana forum, and the district court’s order staying further proceedings pending the outcome of the Texas suit is the barrier which presently blocks this route. Whether the stay order was properly entered depends on the answers to two questions: (1) Whether the district court had discretionary power to stay further proceedings in a diversity suit for declaratory and injunctive relief in deference to a pending state declaratory judgment action, and (2) if so, whether the district court properly exercised its discretion in this case. Upon consideration, we believe both questions must be answered in the affirmative.

I. Discretionary Power to Stay

Where federal action and a parallel state action involving the same controversy are both proceedings in rem or quasi in rem, so that the granting of effective relief requires possession or control of the res, the court which first assumes jurisdiction acquires exclusive jurisdiction and deprives the other court of power to decide the case. Princess Lida of Thurn and Taxis v. Thompson, 1939, 305 U.S. 456, 466, 59 S.Ct. 275, 280, 83 L.Ed. 285. This virtually mechanical in rem rule does not apply to actions in personam, however, such as the instant federal action and the corresponding Texas suit, which do not center about an identifiable res. Where both suits are in personam, as here, each court may proceed to adjudicate the controversy independently despite the pen-dency of a similar suit in the other court:

Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res ad-judicata by the court in which the action is still pending in the orderly exercise of its jurisdiction, as it would determine any other question of fact or law arising in the progress of the case.

Kline v. Burke Construction Company, 1922, 260 U.S. 226, 230, 43 S.Ct. 79, 81, 67 L.Ed. 226. Thus, the district court below clearly had power to proceed in the instant case. This power is not at issue here. The issue is whether in view of the pendency of a parallel state proceeding, the district court could properly stay its hand when it had power to proceed.

PPG, to support its argument that the stay order was improper, relies principally on Meredith v. City of Winter Haven, 1943, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9. In that case the plaintiffs, invoking the federal court’s diversity jurisdiction, sought a declaration that under Florida law the City of Winter Haven could not retire certain bonds without providing for the payment of deferred interest coupons and an injunction restraining the City from doing so, as well as other declaratory and injunctive relief. The Court of Appeals had directed that the action be dismissed and the plaintiffs be left to litigate their claims in state courts because no federal questions were presented and the questions of state law were unsettled. The Supreme Court reversed, holding that difficulty of questions of state law could not alone justify refusal to exercise the diversity jurisdiction conferred on the federal courts by Congress. The Court stressed initially that the prayer for declaratory relief, which accompanied the prayer for in-junctive relief, did not stamp the suit with a special overriding declaratory character or eclipse the prayer for an injunction. It noted that a declaration of rights is normally a prerequisite to an award of injunctive relief and concluded that, although the court of appeals had referred to the suit as one for declaratory judgment, it should properly be treated as “ordinary equity suit.” 320 U.S. at 231, 64 S.Ct. at 9. The Court then affirmed the mandatory nature of diversity jurisdiction conferred on the federal courts by Congress and made clear that in equity suits only “exceptional circumstances” could justify a discretionary refusal to exercise that jurisdiction :

The diversity jurisdiction was not conferred for the benefit of the federal courts or to serve their convenience. Its purpose was generally to afford to suitors an opportunity in such cases, at their option, to assert their right in the federal rather than in the state courts. In the absence of some recognized public policy or defined principle guiding the exercise of the jurisdiction conferred, which would in exceptional cases warrant its non-exercise, it has from the first been deemed to be the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions of state law whenever necessary to the rendition of a judgment. . . . When such exceptional circumstances are not present, denial of that opportunity by the federal courts merely because the answers to the questions of state law are difficult or uncertain or have not yet been given by the highest court of the state, would thwart the purpose of the jurisdictional act.
The exceptions relate to the discretionary powers of courts of equity. An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity.

320 U.S. at 234, 64 S.Ct. at 11. The Court listed several established policies which would warrant the exercise of discretion to withhold equitable relief in some circumstances, including the policies against federal intervention in state criminal prosecutions and federal interference with the collections of state taxes, and the abstention doctrine established in Railroad Commission v. Pullman Company, 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, under which a federal court may require the parties before it to secure in state courts determinations of unsettled state law which may avoid the necessity for constitutional decision. The list did not include the mere pend-ency of a parallel state action as a circumstance which would warrant the withholding of equitable relief if it were otherwise proper, but in concluding that no circumstances were present in Meredith to justify the non-exercise of diversity jurisdiction, the Court did note that no state action was pending in which the questions presented in the federal case could be answered.

PPG’s position in this suit is that pendency of a parallel state action is not a special circumstance under Meredith, and that the district court in this case should therefore proceed to adjudicate the controversy before it. We do not believe, however, that Meredith can fairly be read as forbidding a federal court to stay an equity suit pending the outcome of a parallel state action. In Meredith there was no pending parallel state action, and the Court did not directly consider the question of whether such a state action might warrant a federal stay. Nor did the “special circumstances” list purport to be exhaustive.

Apparently to avoid the force of Meredith, Conoco attempts to characterize this case as a declaratory judgment action, in which the injunctive relief sought is only “ancillary” or is “premature,” and thus to bring it under the rule of Brillhart v. Excess Insurance Company, 1942, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620, which established the discretionary power of a federal court to abate an action solely for a declaratory judgment in deference to a parallel state action. We cannot agree with Conoco that the instant case falls under the strict holding of Brillhart, which dealt with an action seeking only a declaratory judgment. Like the suit reviewed in Meredith, this action for declaratory and injunctive relief must be treated as “an ordinary equity suit.” To label the claim for an injunction “ancillary” does not advance analysis; PPG expressly requests both remedies in its complaint and the prayer for a declaratory judgment cannot obscure or weaken the prayer for an injunction. If the prayer for injunc-tive relief could be determined to be frivolous or premature or otherwise “wanting in equity,” then the suit could be considered solely a declaratory action and the Brillhart holding would clearly apply. See Public Service Commission v. Wycoff Company, 1952, 344 U.S. 237, 240-241, 73 S.Ct. 236, 238, 97 L.Ed. 291. But the district court made no such determination, and on the record before us we cannot do so. Both parties have repaired to the courts to settle their dispute and have alleged that in the relatively near future Conoco definitely will be unable or unwilling to perform fully its gas sale contract with PPG. This state of affairs tends to indicate that a sufficiently concrete case or controversy exists between the parties and that the threatened harm is sufficiently imminent and certain that the prayer for an injunction is not premature. See Pierce v. Society of the Sisters of the Holy Name of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. If Conoco’s conduct in failing to supply the amounts of gas agreed upon constitutes a breach of contract — an issue which we, of course, do not decide — then an injunction might ultimately be a proper remedy. See Standard Oil Company v. Lo-peno Gas Company, 5th Cir. 1957, 240 F.2d 504.

While we are thus unable to agree with Conoco that Brillhart controls this case, we do believe that Brill-hart and cases decided after it and after Meredith have made manifest a policy against dual litigation which applies with equal force to declaratory actions and to ordinary equity suits, and which, though not included in the Mededith list of exceptional circumstances, has given rise to a discretionary power in the federal courts to stay proceedings in equity suits in deference to a parallel state action. Two of the bases underlying the policy to which we refer are seen in the Brill-hart opinion:

Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties. Gratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided.

316 U.S. 495, 62 S.Ct. 1175. This language recognizes that duplicate litigation in federal and state courts abrades to some extent the spirit of federal-state comity' — -that even when the two courts of concurrent jurisdiction do not require control over an identifiable res, concurrent litigation of the same controversy is perceived as interference. Secondly, the quoted sentences show concern for economy of judicial time and a disinclination to encourage duplication of effort. See also Kerotest Manufacturing Company v. C-O-Two Fire Equipment Company, 1952, 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200. In the decades since Brillhart, of course, the increasingly crowded dockets of the federal courts have magnified the importance of this practical consideration. See Aetna State Bank v. Altheimer, 7th Cir. 1970, 430 F.2d 750, 756. A parallel consideration supporting the policy against dual litigation is the undesirability of imposing on the litigants and the witnesses the double burden of two trials. See id at 758. Finally, the courts have recognized as generally “unwanted and highly undesirable [the] race by each party to obtain a decision from the particular . . . court reacting most favorably to its position.” ACF Industries, Inc. v. Guinn, 5th Cir. 1967, 384 F.2d 15, cert. denied 390 U.S. 949, 88 S.Ct. 1039, 19 L.Ed.2d 1140.

In the context of federal actions attacking state criminal proceedings or the collection of federal taxes the Supreme Court has explicitly held that the factors governing the decision to grant or withhold an injunction or declaratory relief are largely the same, see Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Great Lakes Dredge & Dock Company v. Huffman, 1943, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407, and in our view it is logical that similar considerations should underlie the decision to grant either form of remedy in a diversity action involving only private rights as well. As the Supreme Court observed in Meredith, a declaration of rights is normally a prerequisite to an award of injunctive relief, whether or not the plaintiff prays for a declaratory judgment. Likewise, a declaratory judgment, though not itself coercive, may serve as the basis for subsequent injunctive relief in an appropriate case. See 28 U.S.C.A. § 2202. The close relationship of the two remedies, both of which are discretionary, logically and properly calls for consideration of similar factors in deciding whether either should be granted.

Since Meredith was decided in 1943, the cases have relied increasingly on the same criteria in considering the appropriateness of the two remedies when they are both sought in the same case. In Lear Siegler v. Adkins, 9th Cir. 1964, 330 F.2d 595, an action by a patent licensee against a patent holder for a declaratory judgment that the patent was invalid and an injunction, the district court had stayed proceedings pending the outcome of a state suit filed three years earlier by the patent holder against the licensee for damages. The issues and parties in both suits were the same. The Ninth Circuit, in affirming the stay, relied heavily on Brillhart and other declaratory judgment cases and made no distinction between the Brillhart considerations applicable to a declaratory suit and those applicable to a suit for both declaratory and injunctive relief.

In Occidental Life Insurance Company v. Nichols, 5th Cir. 1954, 216 F.2d 839, this court ordered that an action by an insuror against its insured for a declaration of non-liability and the equitable relief of recision be stayed pending the outcome of a prior state action by the insured for payment of benefits due under the contract. The court recognized that the prayer for recision made the strict holding of the Brillhart line of cases inapplicable and reversed the district court’s dismissal of the action, but concluded nevertheless that a stay pending final disposition of the state suit was the appropriate course. See also Milk Drivers and Dairy Employees Local Union, Local No. 338 v. Dairymen’s League Co-operative Association, Inc., 2nd Cir. 1962, 304 F.2d 913.

Language in Supreme Court cases since Meredith indicates that that tribunal has also decided the propriety of granting or withholding injunctive relief under criteria similar to those applicable when only a declaratory judgment is sought. In Eccles v. Peoples Bank of Lakewood Village, 1947, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784, the plaintiff bank prayed for a declaratory judgment that a condition under which it became a member of the Federal Reserve System was invalid and an injunction against its enforcement. No parallel state action was pending. The court stated, “A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest,” 333 at 431, 68 S.Ct. at 644, and it ultimately held “the Bank’s grievance here is too remote and insubstantial, too speculative in nature, to justify an injunction against the Board of Governors, and therefore equally inappropriate for a declaration of rights.” 333 U.S. at 434, 68 S.Ct. at 645. Mr. Justice Reed, dissenting from the Court’s holding of prematurity, stated:

This Court has disci'etion to refuse to consider a petition for a declaratory judgment and an injunction to stop a threatened or existing injury. That discretion is not unfettered. . . There is no difference between declaratory suits involving an equitable remedy and other equity suits. Where an actual controversy with federal jurisdiction exists over the legal relations of adverse parties, discretion usually cannot properly be exercised by refusing an adjudication. Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9; cf. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939. Unusual circumstances, not here present, such as other pending suits, Brillhart v. Excess Insurance Co. of America, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620, or super-session of state authority, Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407, sometimes justify refusal of relief.

333 U.S. at 436, 68 S.Ct. at 646-647. Significantly, both the majority and the dissent considered the propriety of granting declaratory and injunctive relief under the same criteria, and the dissent clearly indicated an understanding that the Brillhart considerations would apply to a suit for both remedies and that the pendency of another suit should be regarded as an “unusual circumstance,” which might warrant the withholding of equitable relief. The Supreme Court grouped the declaratory and injunctive remedies together more recently in Abbott Laboratories v. Gardner, 1967, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681:

The injunctive and declaratory remedies are discretionary. .
Further, the declaratory judgment and injunctive remedies are equitable in nature, and other equitable defenses may be interposed. If a multiplicity of suits are undertaken in order to harass the Government or to delay enforcement, relief can be denied on this ground alone. Truly v. Wanzer, 5 How. 141, 142, 12 L.Ed. 88; cf. Brillhart v. Excess Ins. Co., . . .

387 U.S. at 148, 155, 87 S.Ct. at 1515, 1519.

Upon consideration of the authorities, we conclude that in an equity suit, the federal district court has discretionary power to stay its hand pending the outcome of a parallel state action. We are aware that stays have been upheld in some cases which were legal rather than equitable or declaratory in nature. See, e. g., Aetna State Bank v. Altheimer, 7th Cir. 1970, 430 F.2d 750; Thompson v. Boyle, 5th Cir. 1969, 417 F.2d 1041, cert. denied, 397 U.S. 972, 90 S.Ct. 1088, 25 L.Ed.2d 266; Amdur v. Lizars, 4th Cir. 1967, 372 F.2d 103; Ray v. Hasley, 5th Cir. 1954, 214 F.2d 366; Beiersdorf & Company, Inc. v. McGohey, 2nd Cir. 1951, 187 F.2d 14; Mottolese v. Kaufman, 2nd Cir. 1949, 176 F.2d 301. And some of these suggest that the court’s power to stay pending determination of a state action is not dependent on the equitable or declaratory character of the relief sought but is part of the court’s inherent power “to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. North American Company, 1936, 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153. This court has previously declined to express its full assent to this broader view, Thompson v. Boyle, supra, and we need not do so today.

We recognize that a stay pending final determination of a state suit between the same parties and the same issues will probably have the same practical effect as a dismissal would have, since the state judgment when final may be pleaded as res judicata in the federal action. Amdur v. Lizars, supra; Mottolese v. Kaufman, supra; cf. McClennan v. Carland, 1910, 217 U.S. 268, 282, 30 S.Ct. 501, 504-505, 54 L.Ed. 762. Despite the probability that the stay of the federal suit will have this effect, we do not believe the action should be dismissed. A stay is the preferable order because:

Conceivably state action could be quite unreasonably delayed or other factual situations not now anticipated might develop in the state litigation which would cause the district court on appropriate petition to desire to reactivate and to go forward with the pending but presently stayed action.

Aetna State Bank v. Altheimer, supra 430 F.2d at 756.

II. Proper Exercise of Discretion to Stay

Conoco argues that the district court’s decision to stay should not be disturbed on appeal except for an abuse of discretion. We agree with this proposition generally, but because of the probable dismissal-like effect of a stay to permit a state court to decide the case first, we think the appellate court must subject the district court’s exercise of discretion to a relatively strict standard of review. Many discretionary decisions may be reversed on appeal only if the appellate court finds they were arbitrarily made or that no reasonable man would have decided the question as the trial judge did. See Delno v. Market Street Railway Company, 9th Cir. 1942, 124 F.2d 965, 967. Other types of actions, including the decision to grant or withhold declaratory relief, are discretionary in the sense that no single rule governs all situations, but are subject to a stricter standard of review which permits an appellate court to substitute its judgment for that of the trial court, even though the latter’s action was not arbitrary and capricious. Broadview Chemical Corporation v. Loctite Corporation, 2nd Cir. 1969, 417 F.2d 998, cert. denied, 397 U.S. 1064, 90 S.Ct. 1502, 25 L.Ed.2d 686 (1970); see 6A Moore’s Federal Practice j[ 57.08 [2] (1972). This stricter standard of review must logically apply to our examination of the district court’s decision to withhold equitable relief pending a state determination as well.

In exercising its discretion to grant or deny a stay in an equity suit pending a determination of a parallel state suit — one involving the same parties and the same issues as the federal suit — the district court should consider several factors. Fundamentally, the district court should determine whether the state action provides an adequate vehicle for adjudicating the claims of the parties and whether the federal action serves some purpose beyond mere duplication of effort.

[A] district court . . . should ascertain whether the questions in controversy between the parties to the federal suit, and which are not foreclosed under the applicable substantive law can better be settled in the proceeding pending in the state court. This may entail inquiry into the scope of the pending state court proceeding and the nature of defenses open there. The federal court may have to consider whether the claims of all parties and interests can satisfactorily be adjudicated in that proceeding, whether necessary parties have been joined, whether such parties are amenable to process in that proceeding, etc.

Brillhart v. Excess Insurance Company, 1942, 316 U.S. 491, 496, 62 S.Ct. 1173, 1176, 86 L.Ed. 1620. The advantages of obtaining in one suit or the other joinder of more parties affected by the controversy, even though they are not indispensable parties to the litigation, may be decisive in a given case. E. g., Thompson v. Boyle, supra. The chronological order in which the suits were filed is not controlling, when the suits are in personam rather than in rem, but priority is a factor entitled to some consideration. See Employers’ Liability Assurance Corporation v. Mitchell, 5th Cir. 1954, 211 F.2d 441, cert. denied, 347 U.S. 1014, 74 S.Ct. 869, 98 L.Ed. 1137; Carbide & Carbon Chemicals Corporation v. United States Industrial Chemicals, 4th Cir. 1944, 140 F.2d 47, 49. The prospects of early completion of the state suit should also be considered, Mottolese v. Kaufman, supra 176 F.2d at 303, as should any unique factors in the particular case which bear on the fairness of a stay to the parties, particularly to the party or parties opposing the stay. Aetna State Bank v. Altheimer, supra 430 F.2d at 758.

The federal district court in this case determined that the Texas state suit and the Louisiana federal suit “presented for judicial determination the same controversy,” and that the “Texas court is perfectly capable of deciding whether Louisiana or Texas law should control in the adjudication of the matter, and of correctly applying whichever law is applicable.” The court named as its sole ground for granting the stay “the generally recognized rule that the court first acquiring jurisdiction should be permitted to proceed without interference from a court of another jurisdiction.” These determinations made by the district court, and borne out by the record, tend to support the discretionary decision to stay pending the outcome of the Texas suit. In addition, the record reflects that at least three of Conoco’s other gas customers with contract and supply difficulties similar to those of PPG have been joined as declaratory defendants in Texas, but could not be joined in a federal suit in Louisiana without destroying diversity; the presence of these additional parties in the Texas suit, while not strictly necessary to a declaration of rights under the PPG-Conoco contract, will permit a more advantageous perspective on what may be viewed as a single, multi-party controversy. Nothing has come to the attention of this court which would indicate a stay would be unfair to PPG. We understand PPG’s desire to litigate the controversy in a Louisiana forum under a choiee-of-laws rule, which it believes is more favorable to its position, and Conoco’s desire to litigate in Texas, and we do not fault PPG or Conoco for the procedural fencing and maneuvering in which each has engaged for the purpose of advancing its interests. But we cannot say that either the Texas or the Louisiana choice-of-law rule is more or less fair than the other, and we perceive no unfairness in requiring PPG to pursue settlement of this controversy in only a single forum, which we are confident is equal to the task presented to it. PPG has not suggested that adjudication by the Texas court will be unduly delayed or that it cannot secure the same coercive relief in the Texas suit, if it should ultimately prevail, which it has sought in the federal suit, either by way of counterclaim or by a subsequent suit or application to the Texas court based on the declaratory judgment which will be rendered.

Accordingly, we believe the exercise of discretion by the district court in this instance was proper, and its judgment is

Affirmed.

      . Since we conclude 28 U.S.C.A. § 1292 (b) supplies appellate jurisdiction here, we need not consider whether § 1292(a). (1) provides an independent jurisdictional basis. Lear Siegler, Inc. v. Adkins, 9th Cir. 1964, 330 F.2d 595; see also Amdur v. Lizars, 4th Cir. 1967, 372 F.2d 103, 106.

      . The quoted language is from Conoco’s petition for a declaratory judgment filed in the 157th District Court of Harris County, Texas, filed May 10, 1972 and numbered 907308 in that court.

      . While the parties apparently agree that a state or federal court in Louisiana, using the Louisiana choice-of-law rule, would apply Louisiana substantive contract law, it is uncertain whether the Texas court will apply Texas or Louisiana contract law.

      . The Uniform Commercial Code forms a part of the Texas law of contracts, but Louisiana has not adopted the UCC. Apparently, the UCC provision which PPG hopes to escape by litigating in a Louisiana forum is § 2-615, which provides in part:
      Delay in delivery or non-delivery in whole or in part by seller is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency, the non-occurrence of which was a basic assumption on which the contract was made. .

      . In addition to a declaration that Conoco is strictly bound to supply the amounts of gas specified in the contract, PPG sought a permanent injunction restraining Conoco from “(1) Entering into any new gas sale contract that would adversely affect Conoco’s ability to perform its contract with PPG; (2) Failing to purchase gas or substituting fuel to satisfy its contractual obligations with PPG, if such purchase is required for Conoco to perform its contract commitment with PPG; (3), Threatening to breach its contract with PPG;” and ordering Conoco “(4) ... to perform its obligations under the contract to deliver natural gas in the quantities, at the times, and for the prices set forth in said contract as demanded by PPG.”

      . The lack of a i>arallel state suit xiend-ing at the time the federal action was abated is a factor which also distinguishes County of Allegheny v. Frank Mashu-da Company, 1959, 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163, and McClellan v. Carland, 1910, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762. But see Ermentrout v. Commonwealth Oil Company, 5th Cir. 1955, 220 F.2d 527, 530 (dictum).

      . See, e. g., Provident Tradesmens Bank & Trust Company v. Patterson, 1968, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936; Abbott Laboratories, Inc. v. Gardner, 1967, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681; Mechling Barge Lines v. United States, 1961, 368 U.S. 324, 82 S.Ct. 337, 7 L.Ed.2d 317; Public Service Commission v. Wycoff Company, 1952, 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291; Eccles v. Peoples Bank of Lakewood Village, 1948, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784; Alabama State Federation of Labor v. McAdory, 1945, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; Great Lakes Dredge & Dock Company v. Huffman, 1943, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407.

      . While the discretionary nature of traditional equitable remedies derives from history, the source of the discretionary power to abate a declaratory action is the Declaratory Judgment Act itself, which “was an authorization, not a command.” Public Affairs Associates, Inc. v. Rickover, 1962, 369 U.S. 111-112, 82 S.Ct. 580, 582, 7 L.Ed.2d 604.