author: HULL, District Judge.

text:
    Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. ROCKFORD TEXTILE MILLS, INC., a Corporation; Ely Group, Inc., a Corporation; and Citicorp Industrial Credit Inc., a Corporation, Defendants.
    No. CIV-4-85-26.
    United States District Court, E.D. Tennessee, Winchester Division.
    March 22, 1985.
    Francis X. Lilly, Solicitor of Labor, Washington, D.C., Bobbye D. Spears, Regional Solicitor, Atlanta, Ga., Carl W. Gerig, Jr., Associate Regional Solicitor, Teresa Ball, U.S. Dept. of Labor, Office of the Solicitor, Nashville, Tenn., for plaintiff.
    John W. Baker, Jr., Knoxville, Tenn., for Citicorp.
    Mark I. Wallach, Thomas A. Cicarella and Mitchell G. Blair, Cleveland, Ohio, for Rockford.
    Thornton W. Morris, Atlanta, Ga., for Ely & Walker.
   MEMORANDUM AND ORDER

HULL, District Judge.

On Friday, March 15, 1985, the plaintiff, Raymond J. Donovan, Secretary of Labor, United States Department of Labor, filed a motion for preliminary injunction and application for temporary restraining order, seeking, among other things, to enjoin the defendants, Rockford Textile Mills, Inc., Ely Group, Inc. and Citicorp Industrial Credit, Inc. (Citicorp), from violating certain sections of the Fair Labor Standards Act, specifically 29 U.S.C. §§ 206, 215(a)(1), and 215(a)(2). The Court denied the initial application for a temporary restraining order on March 15, 1985, and notified the parties that the Court would hold a show cause hearing on the motion for a preliminary injunction on March 20, 1985. At the hearing on March 20, 1985, the Court granted a preliminary injunction in open court. This memorandum and order contains the Court’s reasons for issuing the injunction and describes the acts sought to be restrained as required by Rule 65(d), Federal Rules of Civil Procedure.

It is undisputed that the defendant Ely Group, Inc. d/b/a Rockford Textile Mills, Inc. is a corporation having places of business and doing business in Warren County, Tennessee; that at all times pertinent hereto, it was engaged in the manufacture of hosiery at its manufacturing plant in McMinnville, Tennessee; and that it has been and is engaged in commerce or the production of goods for commerce within the meaning of 29 U.S.C. § 203(b) and (j). It is also undisputed that the defendant Citicorp is a secured creditor of co-defendant Ely Group, Inc. d/b/a Rockford Textile Mills, Inc., a defaulting debtor on funds advanced by Citicorp, which funds were secured by, among other things, Ely’s inventory and accounts receivable. It was stipulated by the parties that Citicorp has a perfected security interest and has taken possession of the collateral. Also undisputed is the fact that Ely Group, Inc. d/b/a Rockford Textile Mills, Inc., has failed to meet three payrolls due to be paid their employees during the workweeks ending February 9,16, and 23, 1985. Further, it is undisputed that operations at the McMinnville plant ceased on February 19, 1985, at which time employees were told to leave.

Title 29 U.S.C. § 206 requires that employers such as Ely Group, Inc. d/b/a Rockford Textile Mills, Inc., pay its employees an hourly wage of not less than $3.35 per hour. Since it is conceded by the parties that the employees at the McMinnville plant were not paid their wages during three (3) payroll weeks, it is clear that all hosiery manufactured during that time period (from February 3, 1985, through February 19, 1985) were produced in violation of the Fair Labor Standards Act.

Title 29 U.S.C. § 215(a) provides, in pertinent part, that:

(a) ... it shall be unlawful for any person (1) to transport, offer for transportation, ship, deliver, or sell in commerce, or to ship, deliver, or sell with knowledge that shipment or delivery or sale thereof in commerce is intended, any goods in the production of which any employee was employed in violation of section 206 or section 207 of this title, or in violation of any regulation or order of the Administrator issued under section 214 of this title; except that no provision of this chapter shall impose any liability upon any common carrier for the transportation in commerce in the regular course of its business of any goods not produced by such common carrier, and no provision of this chapter shall excuse any common carrier from its obligation to accept any goods for transportation; and except that any such transportation, offer, shipment, delivery, or sale of such goods by a purchaser who acquired them in good faith in reliance on written assurance from the producer that the goods were produced on compliance with the requirements of this chapter, and who acquired such goods for value without notice of any such violation, shall not be deemed unlawful; (2) to violate any of the provisions of section 206 or section 207 of this title, or any of the provisions of any regulation or order of the Administrator issued under section 214 of this title;

Title 29 U.S.C. § 217 accords the district court jurisdiction to issue orders restraining violations of 29 U.S.C. § 215.

The issue presented in this instance is whether Citicorp as a secured creditor in possession is subject to be enjoined pursuant to 29 U.S.C. § 217 from violating 29 U.S.C. § 215.

The defendant Citicorp urges the Court to adopt the rationale used by the Court of Appeals for the Second Circuit in Wirtz v. Powell Knitting Mills Co., 360 F.2d 730 (2d Cir.1966) which held that the “hot goods” provision does not reach creditors foreclosing by valid process for nonpayment of funds previously advanced. This rationale was adopted by the Fourth Circuit in Schultz v. Factors, Inc., 65 CCH Lab.Cas. 32, 487 (4th Cir.1971) with the proviso that there must be no evidence of “collusion between the manufacturer and his financier permitting the introduction into the market of goods produced in violation of the Act.” Apparently, there are no Supreme Court or Sixth Circuit cases on point with the instant case.

The plaintiff Secretary of Labor contends that 29 U.S.C. § 215(a) is intended by Congress as an absolute prohibition against the sale or shipment of “hot goods” by “any person”, with only two exceptions: one for common carriers and one for innocent purchasers, as specifically provided under the Act. The Court agrees and thus does not address the issue of whether there was collusion between the defendants in this case.

One of the basic purposes of 29 U.S.C. § 215 is to exclude from interstate commerce goods produced under substandard labor conditions which would compete unfairly with goods produced by complying employers, and which in their total effect might force complying employers out of business. Title 29 U.S.C. § 215, as passed by Congress, specifically provides an exception for common carriers in order “to prevent a case involving the constitutionality of the act from arising in a suit between a shipper and a common carrier, to which the Government was not a party, inasmuch as the common carrier has no interest in the issue of constitutionality, but only in its obligation to accept goods for transportation.” (H.Rept. 2182, 75th Cong., 3d Session, 1938, p. 14). Under the original Act, all persons except carriers were subject to the prohibition in 29 U.S.C. § 215(a)(1). In 1949, however, Congress granted an exception for innocent purchasers who had no intent to deal in “hot goods.” To invoke this exception, the purchaser has the affirmative duty to assure himself that the goods in question were produced in compliance with the Act. The purchaser must show that he acquired the goods (1) for value, (2) in good faith, (3) without notice of violations, and (4) after obtaining written assurances from the producer that the goods were produced in compliance with the Act’s requirements.

No exception was specifically made by Congress in 29 U.S.C. § 215(a)(1) for a foreclosing creditor, and this Court refuses to read such an exception into the Act.

Secured creditors such as Citicorp take their security subject to the laws of the land. If such creditors have a security interest in property which was produced in violation of the provisions of the Fair Labor Standards Act, they retain their security interest, however, that interest is subject to the provisions of the Act. The Fair Labor Standards Act was enacted for the benefit and protection of the laborers and for the benefit and protection of employers who comply with the Act. As previously noted, goods produced in violation of the Act would compete unfairly with goods produced by complying employers. The market should not be flooded with goods produced in violation of the Act. In this instance, both the employees and the secured creditor are innocent parties, the culprit being the manufacturer. However, in light of the purposes of the Act, it would be an unjust and harsh result for the creditor to get the benefit of the labor of the employees during the period of time they produced goods and were not paid as provided by the Act; a benefit which the creditor would not have without the employees labor.

Upon consideration of the motion for a preliminary injunction filed herein, the supporting affidavits of Richard Corbin and Bob Woodward, and the stipulation of facts by the parties at the hearing, it appearing to the Court that there is reason to believe that shipments are being or are about to be made, by defendant Citicorp Industrial Credit, Inc., and/or others, of goods which were produced by employees of the defendants Ely Group, Inc., and Rockford Textile Mills, Inc., in violation of the Fair Labor Standards Act of 1938, 29 U.S.C. § 206, as amended, and since the movement of such goods in commerce will result in immediate and irreparable injury or damage to the plaintiff and the public interest, since such movement will make use of the channels and instrumentalities of commerce to perpetuate an unfair method of competition and interfere with the orderly and fair marketing of goods in commerce, it is

ORDERED that plaintiff’s motion for a preliminary injunction be and the same hereby is granted, and it is further ORDERED that defendants, their officers, agents, servants, employees, all persons in active concert or participation with them and all other parties who receive actual notice of this order by personal service or otherwise be, and hereby are, enjoined from transferring, releasing, disposing of or attempting to dispose of, liquidating, divesting, removing, allowing the removal of, or attempt to remove from the premises of defendants’ establishment in McMinnville, Tennessee, or elsewhere, any goods which were produced during the period of time from February 3, 1985, through February 19, 1985, in violation of 29 U.S.C. § 206, now on said premises or elsewhere and from disposing of or attempting to dispose of such goods.

This order shall remain in effect until final disposition of this case.

      . Jurisdiction to hear this matter is conferred upon the Court by 29 U.S.C. § 217.

      . The rationale used in the Powell and Factors decisions was adopted by the district court in Dunlop v. Sportsmaster, Inc., 77 Lab.Cas. 33, 293 (E.D.Tenn.1975.)


source: Caselaw Access Project

author: HOBBS, Chief Judge.

license: Public Domain

text:
    Billy Joe MAGWOOD, Petitioner, v. Fred SMITH, Commissioner, Alabama Department of Corrections; Willie E. Johnson, Warden, Holman Unit, Respondents.
    Civ. A. No. 83-H-760-N.
    United States District Court, M.D. Alabama, N.D.
    March 26, 1985.

      J.L. Chestnut, Jr., Selma, Ala., for petitioner.
    Charles A. Graddick, Atty. Gen., Ed Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondents.
   MEMORANDUM OPINION AND ORDER

HOBBS, Chief Judge.

This cause is now before the Court on a petition for writ of habeas corpus filed by Billy Joe Magwood on July 20, 1983, pursuant to 28 U.S.C. § 2254. Petitioner was convicted of the murder of the sheriff of Coffee County, Alabama and sentenced by the Circuit Court of Coffee County, Alabama to the penalty of death by electrocution. In his petition for writ of habeas corpus and supplemental brief in support thereof, petitioner asserts a total of nine grounds for the granting of said writ. The Court has concluded that eight of these grounds are without merit. Petitioner is entitled to relief on his claim that the existence of certain mitigating circumstances was not properly considered by the trial court in determining its sentence. Accordingly, while this Court finds no error in the adjudication of petitioner’s guilt, it is necessary that this cause be remanded to the Circuit Court of Coffee County, Alabama for resentencing consistent with this opinion.

Background

On June 2, 1981, following the jury’s verdict of guilty, the jury fixed the punishment of death after a sentencing hearing before them. On June 30, 1981, after a sentencing hearing before the court, the court sentenced petitioner to death by electrocution. On May 18, 1982, the Alabama Court of Criminal Appeals affirmed petitioner’s conviction and sentence and on June 8, 1982, denied his application for rehearing. On January 7, 1983, the Alabama Supreme Court affirmed petitioner’s conviction and sentence and on February 11, 1982 denied his application for rehearing. The United States Supreme Court denied petitioner’s petition for a writ of certiorari on June 13, 1983 and the Alabama Supreme Court then set his execution date for July 22, 1983. Petitioner filed a coram nobis petition and application for stay of execution and amended coram nobis petition in the Circuit Court of Coffee County, Alabama and after an evidentiary hearing on said coram nobis petition, said petition and the application for stay of execution were denied on July 18, 1983. On July 20, 1983, petitioner filed the instant petition for writ of habeas corpus and application for stay of execution in this Court. This Court granted a stay of execution on that date.

On March 20, 1984, the Alabama Court of Criminal Appeals affirmed the denial of petitioner’s coram nobis petition and denied his application for rehearing on April 24, 1984. On May 25, 1984, having failed to file a petition for certiorari in the Alabama Supreme Court on the denial of the coram nobis petition, petitioner filed a motion for permission to file a late petition for certiorari. Said motion was denied on March 6, 1984. On July 13, 1984, following a status conference held by this Court an order was entered requiring an examination of petitioner at a mental facility to determine whether he is presently insane. Said examination having been completed and the parties having filed their final briefs, this cause is now before the Court for consideration of the merits of the instant petition for writ of habeas corpus.

Petitioner’s Nine Grounds for Relief

I.

Petitioner argues that his Sixth Amendment right to the assistance of counsel was violated by the State’s introduction of the testimony of two doctors who petitioner contends examined petitioner on “behalf of the State,” while he was in custody and “without notice to appointed counsel ... at a ‘critical stage’ during the procedures against petitioner.”

Petitioner relies on the case of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) for his position on this issue; however, that case is readily distinguishable. The Alabama Court of Criminal Appeals considered this issue on direct review and issued a thorough written analysis of it. See 426 So.2d 918, 925-927. This Court accepts the state court findings on the issue and deems them to be fully supported by the record.

II.

Petitioner next asserts that he was denied a “fair trial and effective assistance of counsel” by the failure of the trial court to appoint an independent expert witness in connection with petitioner’s insanity defense. The state courts have considered and rejected this contention. Magwood v. State, 426 So.2d 918, 925 (Ala.Cr.App.1982). This Court is also of the opinion that this claim is without merit.

The record indicates that Magwood made a motion to have an independent psychiatric expert appointed (Ex. A at 405-406) and this motion was denied (Ex. A at 477). At a later point in time the State moved to have a further psychiatric evaluation of petitioner due to the passage of time from the earlier examinations. This motion was granted. (Ex. A at 532) Thereupon, petitioner stated to the trial court that the granting of the State’s motion would be “to some extent in line with what the defense has requested.” Counsel conditioned this acquiescence on being “furnished immediately upon it being available a report from that psychologist or psychiatrist____” (Ex. A at 77-78) This condition was met.

Petitioner contends in his brief that the court provided for “six experts on behalf of the State.” The record indicates, however, that three of these six rendered opinions completely favorable to petitioner’s defense, and strongly supported petitioner’s claim of insanity. (See Ex. A at 555 and at 193.) It is difficult for this Court to imagine expert testimony which could be more helpful to petitioner’s cause than that of Dr. Rudder, a psychiatrist, who had been appointed by the trial court to conduct an independent evaluation. His testimony was more persuasive because he was the doctor appointed by the trial court and who was regularly employed by the State to evaluate mental illness.

In Finney v. Zant, 709 F.2d 643, 645 (11th Cir.1983), the Court of Appeals reiterated the holding that “indigent defendants are not entitled to” “repeated psychiatric examinations after substantial competent evidence has already been obtained.” The court cited with approval a case in which an indigent defendant’s motion to employ psychiatrists at the State’s expense was denied where his sanity had been evaluated by the State Department of Health. The court there held that the “accused (was) entitled to an impartial ascertainment of his mental condition but not to a battery of experts.” Finney, supra, at 645 citing McGarty v. O’Brien, 188 F.2d 151 (1st Cir.) cert. denied 341 U.S. 928, 71 S.Ct. 794, 95 L.Ed. 1359 (1951).

Finally, while this Court is aware of the recent decision in Ake v. Oklahoma, — U.S. -, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), it is of the opinion that this case is distinguishable from Ake. In the instant case there was expert testimony for both sides on the question of petitioner’s sanity at the time of the offense. Dr. Rudder specifically testified that in his opinion petitioner was insane at the time of the offense and the Lunacy Commission report reflected the unanimous opinion of the Commission members that petitioner was presently insane and “probably” insane at the time of the offense. In Ake “there was no expert testimony for either side on Ake’s sanity at the time of the offense.” Ake at p. -, 105 S.Ct. at p. 1091. Furthermore, in the instant case, while petitioner had moved for appointment of his own expert, he later acquiesced in the appointment of an expert pursuant to the State’s motion. Finally even if Ake were not so substantially distinguishable, this Court is of the opinion that it would not be retroactively applied to this case, which comes before the Court on collateral review. See Shea v. Louisiana, — U.S. -, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985), and Solem v. Stumes, — U.S. -, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984) (concurring opinion of Justice Powell).

III.

Petitioner asserts that “the imposition and carrying out of the death penalty in Alabama, as it relates to blacks, constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments and in violation of the Equal Protection Clause of the Fifth (sic) and Fourteenth Amendments of the United States Constitution.” (See petitioner’s brief, p. 15-21)

The record indicates that petitioner failed to raise this issue in any state forum; however, rather than considering the application of a procedural default bar to raising this issue initially here, (See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)), the Court has considered this issue and found it to be without merit. (See Smith v. Wainwright, 741 F.2d 1248, 1258 (11th Cir.1984) for the authority to consider the merits despite a possible procedural default).

The Court notes that neither side has requested an evidentiary hearing on this or any issue raised by petitioner, and respondents have represented to the Court in their brief that “the parties are operating on the assumption that the issues are being submitted to this Court on the basis of the pleadings; the exhibits thereto ... and the November 15, 1984 forensic report.” Accordingly, there is no issue here as to whether such a hearing is due to be accorded petitioner to make his showing. McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) at 893.

In the aftermath of the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S, 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), many states, including Alabama, enacted death penalty statutes which reflected changes intended to correct deficiencies found by the Furman court in then existing death penalty statutes. Petitioner relies to a great extent on pre-Furman statistics for his position that the present death penalty in Alabama is racially discriminatory. For obvious reasons the pre-Furman statistics standing alone are not relevant to a determination of whether the current death penalty and its procedures are racially discriminatory.

Petitioner next relies on a study, which by his own admission, has been rejected after having been found to be “too crude to have any legal significance...” (petitioner’s brief p. 18).

Finally, petitioner relies on the Baldus study. In McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985), the Court of Appeals concluded that even if the Baldus study’s statistical results were accepted as valid, the evidence therein would still fail successfully to challenge the constitutionality of the system on which Professor Baldus focused his study (Georgia). McCleskey v. Kemp, supra, at 898. The rejection of the Baldus study which was based on Georgia statistics in a Georgia case leaves this Court no room to find it constitutionally significant on the question of whether the Alabama statute is being applied in a racially discriminatory manner in Alabama.

Finally, with respect to petitioner’s basic proposition that the numbers themselves lead one to the conclusion that the Alabama death penalty is racially discriminatory, this Circuit has consistently applied and reiterated the principle enunciated in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) that “(A) showing of disproportionate impact alone is not sufficient to prove discriminatory intent unless no other reasonable inference can be drawn.” See McCleskey, supra, at 892; Adams v. Wainwright, 709 F.2d 1443, 1449 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984); Sullivan v. Wainwright, 721 F.2d 316, 317 (11th Cir.1983). In Adams, supra, at 1449, thé court stated that “... only if the evidence of disparate impact is so strong that the only permissible inference is one of intentional discrimination will it alone suffice (to show a violation of the Fourteenth Amendment).” Petitioner has not made such a showing.

IV.

Petitioner next asserts that the trial judge had a duty, despite the fact that defendant made no such request, to ask questions of the jury venire related to racial prejudice on voir dire. He contends that the failure to do so, considering the context of the instant ease was violative of the Fifth and Fourteenth Amendments and reversible error. However, it appears from the record that petitioner never raised this contention at trial, on direct review, in his coram nobis petition, or even in the instant habeas corpus petition. The only vehicle by which it is raised is the instant brief. (Petitioner raises a similar issue in the context of an ineffective assistance of counsel claim for failure by his attorney to ask such questions on voir dire and that will be addressed below.) Furthermore, petitioner has made no showing of “cause” to excuse his failure to properly preserve the issue nor any resulting prejudice. Accordingly, this issue is barred from review in the federal courts. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and Smith v. Wainwright, 741 F.2d 1248 (11th Cir.1984).

V.

Petitioner next asserts an ineffective assistance of counsel claim and cites five acts or omissions by counsel which he contends support such a claim.

Petitioner contends that trial counsel rendered ineffective assistance by failing to object to the testimony of Doctors Crook and Cooper. This claim is evidently related to petitioner’s Estelle v. Smith argument addressed above as no other basis for such an objection has been suggested. The Alabama Court of Appeals addressed petitioner’s Estelle v. Smith argument and found it to be without merit (See Magwood v. State, 426 So.2d 918 (Ala.Cr.App.1982). This Court agrees.

Petitioner next contends that the failure by counsel to “extensively qualify the jury on the issue of race” by asking questions related to race on voir dire in a case such as this amounted to ineffective assistance of counsel.

This is also an issue which has been considered by the state court pursuant to a hearing on petitioner’s coram nobis petition. Following said hearing the trial judge found that counsel’s reasons for not specifically questioning prospective jurors on racial prejudice were “proper, sound and within common sense of any reasonable attorney.” See Ex. “P” at 179-180. Defendant’s counsel at the coram nobis hearing testified to his general familiarity with the jurors in his county, and in his opinion by asking such a question he would have risked “(emphasizing) a notion to the jurors” that might not have been in their minds. (Ex. P at 72-73) As the Court recognized in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1982), there are “countless ways to provide effective assistance in any given ease(;)” and this Court has nothing before it which would rebut the presumption that counsel’s conduct on this issue was a sound strategic decision which falls “within the wide range of reasonable professional assistance.” Id.

Petitioner’s third argument under his ineffectiveness claim relates to counsel’s “(failure) to have a subpoena or bench warrant issue(d) for its primary witness, Dr. Rudder.” This claim is best analyzed in two parts. First, with respect to having a bench warrant issued, that was clearly not a matter within counsel’s control. Moreover, in considering the issue on appeal the State Court of Criminal Appeals found the trial court was not in error in refusing to issue a bench warrant for Dr. Rudder. See Magwood v. State, supra, at 927-928. Secondly, with respect to the subpoena, the record indicates that a subpoena for Dr. Rudder’s appearance at trial was issued on May 26, but counsel had not ascertained at the time of trial whether Dr. Rudder had actually been served. Magwood v. State, supra, at 927. The court endeavored to determine whether Dr. Rudder had been served during the trial but was unsuccessful. Its decision not to issue a bench warrant was based on its understanding of Ala.Code § 22-50-22 (1975), which provides that a witness such as Dr. Rudder cannot be compelled to attend trial as an expert witness upon satisfying certain conditions. While Dr. Rudder had not satisfied the statute’s formal requirements, the court concluded that a bench warrant would be inappropriate under the circumstances. Counsel based their decision not to seek a continuance because of that ruling and Dr. Rudder’s deposition testimony was read aloud to the jury. (Counsel did at first informally ask for a continuance to see whether Dr. Rudder had been served. See Ex. A at 190.) His deposition testimony was as favorable to petitioner as could be hoped for from any trial testimony, though the testimony of a live witness may have more impact than deposition testimony-

Petitioner’s fourth claim on this issue relates to counsel’s “(failure) to subpoena the other two examining physicians of the Lunacy Commission.” As respondents correctly point out in their brief, petitioner clearly has the burden of proving facts surrounding its contentions of ineffective assistance of counsel in such a circumstance as this. See United States v. Cronic, — U.S. -, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984). Petitioner has failed to meet this burden and this Court has no way of knowing whether those two doctors had been interviewed at length or if deposed whether they would have been as favorable or as emphatic in support of petitioner’s claim of insanity as Dr. Rudder, whether they had any major role in evaluating petitioner, or whether they too might have claimed a statutory exemption. At any rate, although the parties have been through a full coram nobis hearing, there is nothing in the record pointed to by petitioner which supports his contention or which indicates that the failure to subpoena the two Commission members was in fact prejudicial. The unanimous report reflecting the opinions of these two doctors as well as that of Dr. Rudder that defendant was insane when they examined him was admitted into evidence. See Ex. A at 555. Simply stated, the Court is unable to find counsel to have rendered ineffective assistance in connection with this issue.

Finally, the Court finds there to be no merit in petitioner’s contention that counsel failed to conduct a “substantial investigation” into petitioner’s insanity defense. Again, petitioner has failed to meet the burden clearly recognized in United States v. Cronic, supra, in connection with this assertion. Furthermore, the record from the coram nobis hearing indicates that counsel took several steps in pursuing this line of defense. Counsel obtained and reviewed petitioner’s VA hospital records but determined that they were more helpful to the prosecution than to petitioner (Ex P at 75). Counsel considered using petitioner’s mother and sister to testify at the sentencing hearing but was evidently persuaded by some- information he obtained that such testimony would not be helpful (Ex. P at 78). At any rate, counsel was prevented from testifying at the coram nobis hearing as to his reasons for not using the testimony of petitioner’s mother and sister by petitioner’s objection to the divulgence of a “privileged communication” (Ex. P at 79) between petitioner and trial counsel. It is clear from the record that trial counsel understood the insanity defense to be petitioner’s only defense in this case. All of counsel’s actions in preparation for and during the course of the trial and the sentencing hearing were directed toward presenting that defense. It is possible that other counsel might have presented some or all of that which counsel calculated would not be helpful to defendant, but these are the kind of strategic decisions that are judgment calls for the trial attorney. Strickland, supra. Accordingly, the Court finds no merit in petitioner’s ineffective assistance of counsel claims.

VI.

Petitioner’s sixth claim is that Ala. Code § 15-16-23 (1975) is unconstitutional on its face and as applied. This section of the Code requires the suspension of the execution of a death sentence for a person found to be insane by the trial court at any time after conviction and sentence.

On July 13, 1984, pursuant to petitioner’s plea to the court of present insanity, this Court issued an order for petitioner to be transferred to an appropriate medical facility for an evaluation of his present mental condition. On November 26, 1984, the Forensic Evaluation Report which set forth the results of said evaluation was filed with this Court.

Petitioner raised the contention that § 15-16-23 should be applied to him with the state court in his coram nobis proceeding. Such a contention was rejected by that court which found that “[T]he totality of the evidence conclusively shows (petitioner) is not presently insane.” (See Exhibit P at 180.) Pursuant to such a claim this Court directed that the aforementioned evaluation of petitioner’s mental condition be conducted so as to evaluate petitioner with respect to the specific factors the court in Gray v. Lucas, 710 F.2d 1048 (5th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983) set forth as the standard for present insanity if there were to be a constitutional right not to be executed while presently insane. This standard was agreed upon by the parties in this case as the standard for petitioner’s evaluation. Based upon the findings in said Forensic report, petitioner’s claim of present insanity has been rejected. Accordingly, it is the opinion of this Court that petitioner lacks standing to challenge the constitutionality of § 15-16-23 for, having been found presently sane, he has no personal stake in the outcome of such a challenge; nor could he show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the procedures he attacks in said statute. It has no application to him as a person found presently sane. Since plaintiff lacks standing to raise this issue, this Court does not consider the merits of this contention.

VII.

Petitioner next contends that the jury and the court failed to properly consider the mitigating circumstances in sentencing petitioner.

Pursuant to the relevant Alabama Code provisions, petitioner was sentenced in this case by the court after hearings before the trial jury and before the court. The jury rendered an advisory verdict of a sentence of death and the court rendered that sentence.

During the hearing before the sentencing jury the State presented no witnesses. Petitioner called one witness, his second cousin, whose short testimony was essentially that she had never known petitioner to have a propensity for violence and that petitioner had often complained of pain from the injuries suffered in Vietnam. Counsel then made a short argument to the jury. The State submitted one aggravating circumstance, that the crime consisted of the murder of a sheriff on duty or because of some official or job related act or performance of said sheriff (See Ala. Code § 13-11-2(5) (1975)). Defendant’s counsel argued to the jury that while they had failed to find Magwood insane, they could still sentence him to life without parole based on his mental condition. He urged them to listen carefully to the Court’s charge with respect to mitigating circumstances and determine if any applied.

The court in its charge listed the statutory mitigating circumstances for the jury and explained the difference between “insanity” and the mitigating circumstances related to the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law (§ 13-11-7(6)).

On June 2, 1981, the jury then returned its advisory verdict fixing the punishment of the defendant at death. Pursuant to the relevant Code provisions, a sentencing hearing was held before the court on June 9,1981. The State submitted its position to the court on the evidence at trial and rested. Defendant reoffered into evidence the deposition of Dr. Rudder and the cross-examination testimony of Dr. McKeown and rested. Argument by both sides followed with each side arguing their respective positions with respect to defendant’s mental capacity. The case was then submitted to the court for sentencing and on June 30, 1981, the court sentenced Magwood to the penalty of death.

In his finding, the trial court noted that none of the aggravating circumstances set forth in Code of Ala. § 13-11-6 (1975) was present, but found “aggravation” in that “Magwood unlawfully, intentionally, and with malice aforethought killed Coffee County Sheriff Neil Grantham by shooting him three times at close range with a pistol while Grantham was on duty and because of official job related acts as Sheriff of Coffee County, Alabama.” (See § 13-11-2(5).) (Ex. A at 365) The trial judge found two mitigating circumstances, that Mag-wood had no significant prior criminal history (§ 13-11-7(1)), and that he was twenty-seven years old at the time of the crime (§ 13-11-7(7)). He then stated:

... These mitigating circumstances exist. The jury in the guilty phase of the trial rejected the not guilty by reason of insanity plea. The Court concludes Mag-wood did not kill Grantham under influence of extreme or emotional disturbance and when the three bullets were fired into the body of Grantham, Magwood had the capacity to appreciate the criminality of his act ... (Ex. A at 366)

Code of Ala. § 13-11-7 (1975) provides in pertinent part:

Mitigating circumstances shall be the following: (2) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; ...
(6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

The trial judge in his findings specifically rejected the existence of these two mitigating circumstances as has been indicated and rendered sentence accordingly. It is the opinion of this Court that such a factual determination is not fairly supported by the record in this case in light of the overwhelming evidence regarding Mag-wood’s mental condition. Accordingly, pursuant to 28 U.S.C. § 2254(d)(8), it is the duty of this Court to remand this case for sentencing. While the Court notes that able and experienced state judges in this case have considered the issue of mitigating circumstances and have affirmed (see Magwood v. State, 426 So.2d 918, 925 (Ala.Cr.App.1982) and Ex parte Magwood, 426 So.2d 929, 932 (Ala.1983)), this Court has carefully scrutinized this record and can only conclude that the evidence of the existence of the mitigating factors relating to Magwood’s mental state is so overwhelming as to make the trial court’s rejection of their existence clearly erroneous.

The expert testimony in this case which related to petitioner’s mental condition came from four sources. Three doctors testified on behalf of the State. Dr. Crook, a general practitioner, testified that he interviewed petitioner for approximately thirty minutes and in his opinion petitioner was sane at that time (June 6,1979). He added, however, that he would defer to the opinion of a psychiatrist who had spent more time examining petitioner. (Ex. A at 258) Dr. Crook also stated that he had prescribed a “major tranquilizer” for petitioner’s nervousness in 1976. Dr. Cooper, a general practitioner, testified that he spent approximately fifteen to twenty minutes with petitioner and while in his opinion petitioner was sane at the time of the interview (June 6, 1979), he could not form an opinion as to whether petitioner could have been paranoid schizophrenic on the day of the offense (Ex A at 275). Finally, Dr. McKeown, a clinical psychologist, testified that while in his opinion petitioner knew right from wrong on March 1, 1979 (the day of the offense), he conceded that at the time he examined petitioner on April 23 and 27, 1981, petitioner was suffering from a disease of the mind which he diagnosed as paranoid schizophrenia (Ex. A at 285). He further admitted that such a disease can be severe enough so that one suffering from it might not know the difference between right and wrong. When Dr. McKeown examined petitioner, petitioner had previously been treated with strong medication for months while he was confined to a mental hospital (Ex. A at 286).

The unanimous opinion of the three doctors who served on the Lunacy Commission at Searcy Hospital was that petitioner was insane and incompetent at the time of his admission to Searcy Hospital (June 27, 1979), at the time of the report (August 16, 1979) and probably at the time of the commission of the offense (Ex. A at 673).

Dr. Rudder, a member of the Lunacy Commission and a psychiatrist employed at Searcy Hospital, a state hospital, testified that petitioner suffers from paranoid schizophrenia and that in his opinion Magwood did not know right from wrong on the date of the offense (Ex. A at 199). He further stated that “Billy Joe Magwood falls into the category that would be called crazy in Stockholm; he would be called crazy in Calcutta, in Tokyo, any place. He is a schizophrenic. He is not in the borderline category.” (See Ex. A at 235)

On April 7, 1980, the authorities at Searcy Hospital indicated to the trial judge that based upon a re-evaluation of petitioner by the Lunacy Commission, petitioner was competent to stand trial. The trial judge was advised, however, that while petitioner was now competent to stand trial, his paranoid schizophrenia was in remission due only to the powerful medication he was receiving. The hospital authorities directed that petitioner should remain on medication and in the opinion of the State psychiatrists Magwood had a “potential for becoming depressed and suicidal in jail.” (Ex. A at 675). Dr. Rudder further testified that to get Magwood’s schizophrenia into its state of remission the doctors started him on a relatively milder form of medication (Loxitane) but found that that did not work. A week later Magwood’s medication was changed to “a very potent antipsychotic” (Navane concentrate liquid). He was given eight milligrams a day which, as Dr. Rudder testified, “would put anyone of us in here totally asleep, probably.” The doctor testified that while he would be very suspicious of anybody who could stay awake and take it, “it took several months as a matter of fact, for him [Magwood] to do what we call ‘come down’ on that; in other words, getting back to anything like normal____” Pursuant to the hospital’s policy to transfer such patients from the liquid form to a dry form since the doctors have found that the jails simply don’t provide the liquid form upon release of the patient to their custody, Magwood’s medication was changed to Taractan, virtually the same medication as the dry form of Navane. At the time of Dr. Rudder’s deposition, Mag-wood was taking two hundred milligrams of Taractan three times a day “which is about the maximum dosage.” (Ex. A at 243-245).

This evidence overwhelmingly indicates that defendant suffers from and has for a long time suffered from severe mental defects.

This evidence is noted not to suggest that from it a jury could only reach the conclusion that petitioner was legally insane; but rather to indicate that the evidence at a minimum overwhelmingly indicates the existence of the aforementioned mitigating circumstances. The evidence with respect to petitioner’s insanity as that legal concept is defined under Alabama law may have been sufficiently in conflict to make it a jury question (compare Christian v. State, 351 So.2d 623 (Ala.1977) and Turner v. State, 455 So.2d 910 (Ala.1984), and this Court recognizes that an able and experienced trial judge and able and experienced state appellate judges have found it so. Accordingly, while in this Court’s opinion the evidence seems particularly strong that petitioner was insane at the time of the offense, this issue is properly left to the state courts. The matter of the existence of mitigating circumstances, however, is an altogether different matter. The record will simply not fairly support a factual determination which rejects the existence of the mitigating circumstances that this crime was committed while defendant was under the influence of extreme mental or emotional disturbance (§ 13-11-7(2)) and that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired (§ 13-11-7(6)). Even by examining this entire record with the high degree of deference due the state trial court and having indulged a presumption of correctness, Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) with respect to these findings, it is the firm conviction of this Court that these two additional mitigating circumstances exist and that their rejection was error by the trial court. Alderman v. Austin, 695 F.2d 124, 132-133 (5th Cir. Unit B 1983), citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Despite the important consideration of comity appropriately accorded the state trial court, this Court would not be discharging its duty to let such clearly erroneous fact-finding stand. Alderman v. Austin, supra.

It is wholly incredible in light of the unanimous State Lunacy Commission’s findings after a lengthy evaluative process engaged in by trained professionals who were appointed by the State, to find that said murder was not committed while Mag-wood was under the influence of extreme mental or emotional disturbance. Similarly, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law simply had to be impaired when all members of the Lunacy Commission found him to be suffering from a severe mental disease. This Court notes the obvious— that less evidence of a diseased mind is required to find the existence of these mitigating circumstances than is required to prove the defense of legal insanity under Alabama law. Obviously, if a defendant is adjudged legally insane, no court would be called upon to consider any mitigating circumstances. The case would end. But if the testimony in this case is insufficient to establish the presence of these mitigating circumstances, it is difficult to conceive of a case where such a conclusion would be appropriate.

For these reasons, this Court finds that this case must be remanded to the state trial court for resentencing based upon the existence of these four mitigating circumstances (§ 13-11-7(1), (2), (6), and (7) rather than just the two originally considered.

Under our system of “federalism,” it is for state courts to determine whether the death sentence is appropriate for defendants in state trials after a careful weighing of aggravating and mitigating circumstances. However, where state courts have found the nonexistence of the two mitigating circumstances which touch on the mental capacity of this defendant, this Court is required to intervene. A psychologist appointed by the State and three psychiatrists appointed by the State all found plaintiff to be suffering from a severe mental disease, schizophrenia. The psychologist who examined plaintiff even after months of powerful medication for the purpose of rendering him sane enough to stand trial acknowledged that petitioner suffered from the mental disease of schizophrenia. The three State psychiatrists appointed by the trial court who examined and treated plaintiff over a period of months were unanimously of the opinion that defendant was legally insane when they examined him and probably legally insane when he committed the crime. In the opinion of this Court the evidence is overwhelming that defendant was at least suffering from a severe mental or emotional disturbance and an impaired capacity to understand the criminality of his act or to conform his conduct to the requirements of the law. The evidence of Magwood’s mental disease appears substantially stronger than such evidence in the recent case of Berard v. State, 3 Div. 585 (Ala.Cr.App. July 31, 1984) in which case the Court of Appeals stated:

Although the defendant did not meet the burden of proof to the extent of satisfying the jury by a preponderance of the evidence as to his plea of insanity, it can hardly be maintained that there was not sufficient evidence presented to the trial judge to show that his mentality was so impaired that he was acting under the influence of extreme mental or emotional disturbance at the time of the crime, (emphasis added)

The Alabama Court of Criminal Appeals made it clear in Berard that the appropriate sentence is “life imprisonment without parole” rather than a sentence of death.

If courts can find on the evidence in this case that Magwood was not so mentally impaired, then the requirements of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), which upheld the imposition of the death sentence where there were standards and the sentence of death was not arbitrarily or capriciously imposed become only parts of a litany without practical meaning. To find that mitigating circumstances do not exist where such mitigating circumstances clearly exist returns us to the state of affairs which were found by the Supreme Court in Furman v. Georgia to be prohibited by the Constitution.

It may be that the state courts will find that despite all the mitigating circumstances in this case, the death sentence rather than life without parole is appropriate. But at least this determination should be made with an acknowledgment that four circumstances which the Alabama Legislature has expressly designated for consideration on the appropriateness of the death penalty for this petitioner do exist.

VIII.

In response to this Court’s order of December 11, 1984 in which the Court directed petitioner to file a brief identifying and addressing those issues which remain in light of the results of the mental evaluation of petitioner filed November 26, 1984, petitioner filed a supplemental brief raising two additional issues.

In the first of his two additional claims, petitioner contests the accuracy of the evaluation performed pursuant to petitioner’s claim of present insanity. The Court finds no merit in this claim. Petitioner contends that there is now pending before the United States Supreme Court in Ake v. Oklahoma, supra, an issue directly related to petitioner. While the question before the Court in Ake to which petitioner alludes was not squarely presented in the instant case, the Ake Court declined to address the “sedation” issue that had been raised. See Ake, supra, — U.S. at p. - n. 2, 105 S.Ct. at p. 1092 n. 2.

IX.

Petitioner’s final claim is that the State’s remark to the jury in the sentencing phase of the trial that “... the only appropriate punishment for the brutal killing of Sheriff Neil Grantham is death by electrocution” was “unconstitutional.” The record indicates that no objection was made to this statement at trial (see Ex. A at 348), nor has it been raised on appeal or on state collateral review. Without suggesting that such a statement constitutes reversible error, there has been no showing offered of cause for the failure to properly preserve the issue. This Court finds this issue to be barred from review by this Court under Wainwright v. Sykes, supra.

Accordingly, it is ORDERED that said petition for writ of habeas corpus is granted to the extent that this cause is remanded to the Circuit Court of Coffee County, Alabama, Elba Division, for resentencing consistent with this opinion within sixty days of this date. Said petition is denied in all other respects.

      . At the time the petition was filed in this Court, the petition included some grounds which had not been "exhausted” in the state courts. This Court retained jurisdiction, and such grounds have now been considered and rejected by the state courts.

      . In Berard, the Court of Appeals stated that the Alabama statute "does not place any burden upon the defendant as to this point." (showing mitigating circumstances). But in his charge to the jury on the sentencing phase of this case, the judge charged: "A mitigating circumstance need only be proven to your reasonable satisfaction and not beyond a reasonable doubt.” (Ex A, at 354) Thus, placing the burden on Magwood of proving mitigating circumstances clearly conflicts with the teaching of Berard. This issue raises a question of state law which is appropriately resolved by state courts rather than a federal court.


author: EDWARD C. REED, Jr., District Judge.

text:
    Daniel RODDICK, a minor By and Through Nancy RODDICK, his Guardian ad Litem, Julianne Roddick, her Guardian ad Litem, Nancy Roddick and Robert Roddick, Plaintiffs. v. Cynthia PLANK and Richard Plank, Defendants.
    No. CV-R-83-140-ECR.
    United States District Court, D. Nevada.
    March 26, 1985.

      Mark L. Webb, San Francisco, Cal., for plaintiffs.
    Paul F. Hamilton, Reno, Nev., for Cynthia and Richard Plank.
   EDWARD C. REED, Jr., District Judge.

Defendant Richard Plank moves this Court for summary judgment pursuant to Fed.R.Civ.P. 56 on the ground that there is no genuine issue as to any material fact, and for final judgment as to all claims against him pursuant to Fed.R.Civ.P. 54(b) on the ground that there is no just reason for delay.

For the reasons stated below, summary judgment is granted.

Plaintiffs in this action seek to recover from Richard Plank, custodial parent of minor alleged tortfeasor Cynthia Plank, on the theories listed below. The Court finds that there are no genuine issues of material fact and that defendant Richard Plank is entitled to judgment as a matter of law. The Court has considered the evidence in the light most favorable to plaintiffs. Plaintiffs’ said theories of recovery are analyzed as follows:

IMPUTED LIABILITY UNDER NRS 41.470 IS NOT SHOWN.

NRS 41.470 provides in pertinent part that “any act of willful misconduct of a minor which results in any injury ... to another person ... is imputed to the parents ... having custody and control of the minor for all purposes of civil damages.” Plaintiffs and defendant cite no cases interpreting “willful misconduct” under this statute and we have found none.

The Nevada Supreme Court has not clearly enunciated its interpretation of the term “willful misconduct.” In Rocky Mountain Produce Trucking Co. v. Johnson, 78 Nev. 44, 51-52, 369 P.2d 198, 201-02 (1962) and Bearden v. City of Boulder City, 89 Nev. 106, 110, 507 P.2d 1034 (1973), the court distinguished between negligence, wanton or reckless misconduct and willful misconduct. In both of these cases, the court said that willful misconduct requires the element of intent to do harm. In Van Cleave v. Keitz-Mill Minit Mart, 97 Nev. 414.416, 633 P.2d 1220 (1981), the court described willful or wanton misconduct as conduct “that the actor knows, or should know, will very probably cause harm,” citing Rocky Mt. Produce, 78 Nev. at 51-52, 369 P.2d 198, or as an “act of perversity, depravity or oppression,” citing Bearden, 89 Nev. at 110, 507 P.2d 1034. Finally, in Bell v. Alpha Tau Omega, 98 Nev. 109, 112, 642 P.2d 161 (1982), the Nevada court found that willful misconduct requires a “consciousness that one’s conduct will very probably result in injury,” citing cf. Van Cleave. Under none of the definitions of “willful” contained in these cases can the actions of Cynthia be found to be “willful” so as to impute Cynthia’s conduct to her father, under NRS 41.470. No version of the facts in the present case shows that Cynthia Plank intended to harm the plaintiffs. Nor does the evidence provide a basis for a conclusion that Cynthia knew or should have known that her actions would very probably cause harm. There also is no evidence that there was any consciousness on Cynthia’s part that her conduct would very probably result in injury.

LIABILITY UNDER RESPONDENT SUPERIOR OR MASTER-SERVANT IS NOT SHOWN.

Although Cynthia Plank worked part time in her father’s 7-11 store, she was not working at the time of the accident. Nor was she on some special errand or job assignment for the benefit of her employer, even though she had recently left his store. Under the “going and coming rule,” an employer ordinarily is not liable for the tortious acts of his employee who is going to or coming from his place of employment. National Convenience Stores v. Fantauzzi, 94 Nev. 655, 658, 584 P.2d 689 (1978); State v. Superior Court, In & For County of Maricopa, 111 Ariz. 130, 524 P.2d 951 (1974). To come under the “special errand” exception of Fantauzzi, Cynthia Plank would have to have “temporarily abandoned [her] personal objective and turned to accomplish a task reasonably within the scope of [her] employment and of benefit to [her] master.” 94 Nev. at 659, 584 P.2d 689. The facts of the present case show no such intention. Therefore, the “going and coming rule” precludes liability on the part of father Richard Plank.

NEGLIGENT ENTRUSTMENT TO OR SUPERVISION OF A MINOR IS NOT SHOWN.

Negligent entrustment in Nevada “does not extend to one who neither entrusts nor places a vehicle with another (citation omitted) or one who has no right to control the vehicle.” Connell v. Carl’s Air Conditioning, 97 Nev. 436, 440, 634 P.2d 673 (1981). In the present case, it is uncontroverted that the bicycle Cynthia Plank was riding did not belong to Richard Plank nor to anyone within his control. It also is uncontroverted that he did not authorize Cynthia’s riding of the bicycle and that he had knowledge that she was doing so. Therefore, negligent entrustment is not shown under these facts.

Negligent supervision is a theory by which plaintiffs hope to bootstrap lack of negligent entrustment into an actionable tort. Plaintiffs claim that a father who is raising his children alone, operating his business and employing his teenage daughter on a part-time basis is nevertheless guilty of negligent supervision if he does not know his daughter’s exact whereabouts at all times during daylight hours in the summer. Plaintiffs cite no authority for this almost impossible standard. The facts in the present case show that Cynthia Plank held a part-time summer job and checked in with her father when she was not working, indicating responsibility. When she worked for him, she did not ride a bicycle because she returned home in a vehicle. There is no evidence that she acted otherwise in irresponsible ways. Therefore, this Court finds that Richard Plank is not liable for negligent supervision of his daughter Cynthia Plank.

Where willfulness is an issue, summary judgment is granted with caution. Simpson v. United States, 652 F.2d 831 (9th Cir.1981). However, where plaintiff cannot show by the record facts to support his position, he cannot defeat summary judgment by mere conjecture nor by the hope of proving his allegations at trial. Howard Hughes Medical Institute v. Gavin, 96 Nev. 905, 621 P.2d 489, 491 (1981), interpreting Nev.R.Civ.P. 56(e), identical here to the federal rules.

For the above reasons, Richard Plank is entitled to summary judgment as to all of the claims against him in this action.

IT IS, THEREFORE, HEREBY ORDERED that the motion of Richard Plank for summary judgment as to all claims against him is GRANTED.


text:
    Sandi BUSHMAN, Plaintiff, v. SAFEWAY STORES, INC., et al., Defendants.
    No. CV-R-84-424-ECR.
    United States District Court, D. Nevada.
    March 27, 1985.

      Lawrence J. Semenza, Reno, Nev., for plaintiff.
    Suellen Fulstone, Reno, Nev., for defendants.
   ORDER

EDWARD C. REED, Jr., District Judge.

Plaintiff, Sandy Bushman, commenced this action in Nevada state court. Defendants, Safeway Stores, Inc., Does I through V, inclusive; and Black and White Corporations I through V, inclusive, (hereinafter Safeway), removed the instant case to this Court on the grounds of diversity of citizenship. Safeway now moves this Court for summary judgment pursuant to Fed.R. Civ.P. 56.

In support of their motion for summary judgment, Safeway argues that the res judicata doctrine bars Bushman from proceeding with the instant action. Bushman opposes this motion.

Bushman makes two principal arguments on her behalf. First, Bushman argues that at the time of filing her first suit (Bushman I), she was unable to assert the legal theories stated in the instant case. She argues that the Nevada Supreme Court has only recently recognized these theories in Hansen v. Harrah’s, 100 Nev.Adv.Op. 8, 675 P.2d 394 (1984), and Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983). Bushman next argues that application of the res judicata doctrine to this case would produce unreasonably harsh results.

Following her termination from Safeway, Bushman filed Bushman I on November 10, 1980. This suit alleged denial of due process, sex discrimination, and defamation. In two orders, the state court granted summary judgment in favor of Safeway. Based on the same facts, Bushman filed the instant action September 20, 1984 (Bushman II). In support of this action, Bushman alleges denial of due process, wrongful termination, breach of implied contract, breach of covenant of good faith and fair dealing, and retaliatory discharge. Analysis

Summary judgment is proper only where there is no issue of material fact or where, viewing the evidence and the inferences that may be drawn in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law. See Radobenko v. Automated Equipment Corp., 520 F.2d 540, 543 (9th Cir.1975). On a motion for summary judgment, the trial court does not try issues of fact. Examining the entire record, it decides the limited question of whether any factual issue exists. Radobenko, 520 F.2d at 543. The moving party has the burden of showing the absence of a genuine issue as to any material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

In deciding a motion for summary judgment in a diversity case, a federal court is bound by the substantive law of the state in which the court is sitting. Accordingly, the law of Nevada governs this motion for summary judgment. Erie Railway Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938).

Further, it is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); see also Haring v. Prosise, 462 U.S. 306, 103 S.Ct. 2368, 2373 and n. 8, 76 L.Ed.2d 595 (1983) (28 U.S.C. § 1738 requires a federal court to look first to state preclusion law in determining the preclusive effects of a state court judgment.); Los Angeles Branch NAACP v. Los Angeles Unified School District, 750 F.2d 731, 736 (9th Cir.1984).

This case concerns the preclusive effect of a Nevada state court judgment in a subsequent lawsuit between the same parties, but involving different legal theories.

Safeway bases this motion for summary judgment on the doctrine of res judicata. The doctrine of res judicata precludes parties or their privies from relitigating issues which were or could have been raised when there has been a final judgment by a court of competent jurisdiction. See Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 396, 101 S.Ct. 2424, 2426, 69 L.Ed.2d 103 (1981). A state judgment on the merits serves not only to bar every claim that was raised in state court but, also, to preclude the assertion of every legal theory or ground of recovery that might have been raised in state court supporting the granting of the desired relief. Scoggin v. Schrunk, 522 F.2d 436, 437 (9th Cir.1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 807, 46 L.Ed.2d 657 (1976). The fact that a different or additional form of relief is requested in the second action does not preclude the application of res judicata.

The preclusive effect of a state court judgment in a subsequent federal lawsuit is generally determined by the full faith and credit embodied in our legal system. The Constitution’s Full Faith and Credit Clause is implemented by the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738. This statute directs a federal court to refer to the preclusion law of the state in which judgment was rendered. “It has long been established that § 1738 does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments. Rather, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken.” Marrese v. American Academy of Orthopaedic Surgeons, — U.S. -, -, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274 (1985) quoting Kremer v. Chemical Construction Corp., 456 U.S. 461, 481-482, 102 S.Ct. 1883, 1897-1898, 72 L.Ed.2d 262 (1982).

Thus, the preclusion law in Nevada must be interpreted and applied to determine whether Bushman II would be precluded in a Nevada state court. See Migra, 104 S.Ct. at 899.

The inquiry to be made in Nevada in determining whether res judicata bars a subsequent action is: (1) whether the issue decided in the prior adjudication was identical with the issue presented in the action in question; (2) whether there was a final judgment on the merits; and (3) whether the party against whom the judgment is asserted was a party or in privity with a party to the prior adjudication. See Horvath v. Gladstone, 97 Nev. 594, 596, 637 P.2d 531, 533 (1981).

The court in Horvath reversed the district court’s use of the doctrine of res judicata because the issues in the two cases were not identical. The issue in the first case dealt with the enforceability of a restrictive covenant against a homeowner who had both constructive and actual notice of the covenant, and who was proceeding to build the second story in direct violation of the covenant. The issue in the subsequent case was whether the restrictive covenant is enforceable against a party who purchased the house with the second story already completed, where that party had constructive notice of the restriction, but where there was no actual or constructive notice of any pending litigation or dispute as to the second story.

On another occasion, the Nevada Supreme Court holds that under the res judicata doctrine, “a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established.” See Spilsbury v. Spilsbury, 92 Nev. 464, 466, 553 P.2d 421, 422 (1976). In Spilsbury, the court found that the denial of a wife’s prior motion to set aside a decree provision confirming a property settlement agreement on the same grounds was barred by res judicata.

As the first prong of the test indicates, the applicability of res judicata depends upon whether the same cuase of action is involved in both suits. See Nevada v. United States, 463 U.S. 110, 103 S.Ct. 2906, 2918, 77 L.Ed.2d 509 (1983).

The Nevada court in Tomiyasu v. Golden, 81 Nev. 140, 143, 400 P.2d 415, 416 (1965), cert. denied 382 U.S. 844, 86 S.Ct. 89, 15 L.Ed.2d 85, holds that the test of a cause of action for res judicata purposes is the identity of facts essential to maintaining the two suits. See also Derish v. San Mateo-Burlingame Bd. of Realtors, 724 F.2d 1347, 1349 (9th Cir.1983) (To determine whether two suits involve the same claim, the court should examine whether there is an identical “transactional nucleus of facts”.)

Thus, to determine whether it is the same cause of action, this Court must look at the facts surrounding the alleged injury. It is these facts that define the cause of action, rather than the various, and often inconsistent, legal grounds or theories that could be asserted concerning the injury. See Salveson v. Western States Bankcard Ass’n, 525 F.Supp. 566, 582 (N.D.Cal.1981) aff'd 731 F.2d 1423, 1430 (9th Cir.1984). A subsequent action advancing a different legal theory based on the same events and injuries is barred by a final decision in the first action where that theory could have been argued as an alternative or additional ground for recovery. Id. A plaintiff must take advantage of the opportunity to assert all theories; a plaintiff should not be allowed to litigate in a subsequent action that which could have been advanced previously.

An examination of the facts in this case leads this Court to find that the cause of action is identical and that Bushman had the opportunity to assert the legal theories in Bushman I that are now advanced in Bushman II. The underlying facts in both cases were the events surrounding her termination from the Safeway in Lovelock on October 12, 1980. Thus, although Bushman is correct in asserting that Bushman I was only seeking injunctive relief and damages for defamation, she had already been terminated and thus, all legal theories relating to that termination which have now been asserted in Bushman II were available to her. Bushman knew enough at the first litigation to have explored all avenues of recovery open to her.

Accordingly, this Court finds that Bushman’s earlier action for denial of due process, sex discrimination and defamation is essentially concerned with the same sequence of acts and events as her current action for denial of due process, wrongful termination, breach of implied contract, breach of the covenant of good faith and fair dealing, and retaliatory discharge. When two successive suits seek recovery for the same injury, “a judgment on the merits operates as a bar to the later suit, even though a different legal theory of recovery is advanced in the second suit.” Cemer v. Marathon Oil Co., 583 F.2d 830, 832 (6th Cir.1978). There was no bar to Bushman presenting the theories of her second suit at the time of the first suit. Bushman is correct that the law in Nevada on termination of an at will employee has evolved in recent years, but there is no reason why the theories advanced in the instant case were not advanced in the original action. In accord York v. York, 99 Nev. 491, 664 P.2d 967 (1983). In York, following the second divorce of the parties, the wife attacked the property settlement of the first divorce. The court found that the issues were the same and therefore she was precluded from raising the issue in the second ease. The court held:

“The fact that Mrs. York did not make a claim to the $15,000 at the time of the first divorce is of no consequence because ‘a judgment is conclusive not only on the questions actually contested and determined, but on all matters which might have been litigated and decided in the suit.’ 50 C.J.S. Judgments § 716 (1947).” (cites omitted.) (emphasis added.)

The court found that all three prongs of the test were met and Mrs. York was precluded from raising the issue in the second action.

The next question presented is whether the summary judgment is a final judgment on the merits.

The Nevada Supreme Court has given res judicata to a decision rendered on summary judgment. In Lucas v. Page, 91 Nev. 493, 538 P.2d 165 (1975), summary judgment was entered in favor of a husband on the issue of whether he was liable to a corporation on default judgment taken against his former wife. Res judicata barred relitigation thereof by owners of the corporation by way of counterclaim in the husband’s suit to recover on the note. Id. at 495, 538 P.2d at 166.

The Nevada court also recognizes that a prior summary judgment should only preclude a subsequent action if the judgment was rendered after a review of the record. Hampton v. Washoe County, 99 Nev. 819, 821, 672 P.2d 640, 642 (1983). In Hampton, res judicata was found not to apply because the summary judgment entered in the prior case neither explained why it was granted, nor what issues it resolved. Id.

The summary judgment in this case demonstrates that the Hon. Judge Forman reviewed the affidavits, excerpts from depositions, answers to interrogatories, and points and authorities filed on behalf of the respective parties. See Order dated October 4, 1983. In that order, Judge Forman granted summary judgment on the claims based on due process violations and sex discrimination, while denying summary judgment on the third claim for defamation. Subsequent to the October 4, 1983, order, Judge Forman granted summary judgment on the remaining claim for defamation. See Order dated June 21, 1984. Thus, with a final judgment on the merits in Bushman I, the second prong of the test has been met.

The parties in Bushman I and this case are identical. Accordingly, all three prongs of the test have been met.

This Court realizes that the doctrine of res judicata in this case seems to work an unfair result. Bushman has had no court rule on the merits of several viable and legitimate claims in this case. However, we believe that the decisions of the Supreme Court, the Nevada court and this circuit, together with the policies underlying the doctrine of res judicata, compel that result. The doctrine of res judicata serves not only the interests of the winning party in a lawsuit, but also the interests of the public in conserving judicial resources, avoiding inconsistent results and engendering respect for final court judgments. Bushman offers no facts in support of a finding that it would be appropriate to waive the effects of res judicata in this case.

Manifest injustice of the type necessary to except a case from the application of the doctrine is simply not present here. A mere showing that the second litigation, if allowed to proceed, may provide relief is not a showing of manifest injustice. Because the doctrine of res judicata effects a balance between competing interests, a certain degree of inequity is inevitable. Res Judicata ensures the finality of judicial decisions. It encourages reliance on those decisions, thereby establishing certainty in legal relations. It bars vexatious litigation and promotes economy of judicial time and effort. See Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979). See also Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980) (Res judicata rules are generally applicable to § 1983 actions.); see also Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (Res judicata is applicable to Title VII cases.) Subsequent litigation is not available to correct error; the appeal process is available for this purpose.

Plaintiff should not be allowed “to fragment a single cause of action and to litigate piecemeal the issues which could have been resolved in one action.” Scoggin v. Schrunk, 522 F.2d at 437, quoting from Flynn v. State Bd. of Chiropractic Examiners, 418 F.2d 668, 668 (9th Cir.1969).

IT IS, THEREFORE, HEREBY ORDERED that summary judgment is granted in favor of Safeway.

       The statute reads in pertinent part:
      "Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken."


text:
    Lynna TURNBOW, aka Lynn Turnbow and Ed Turnbow, husband and wife, Plaintiffs, v. Thomas James WASDEN, Ida-Cal Freight Lines, Inc., an Idaho corporation, Defendants.
    No. CV-R-83-105-ECR.
    United States District Court, D. Nevada.
    March 29, 1985.

      Glade L. Hall, Reno, Nev., for plaintiffs.
    Victor A. Perry, Reno, Nev., for defendants.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

This matter, coming before this Court December 18, 19, and 20, 1984; the plaintiffs appearing by the through their attorney, Glade Hall, Esq., and the defendants appearing by and through their attorneys Victor A. Perry, Esq., and Thierry Barkley, Esq.; the Court having heard the testimony of witnesses and the arguments of counsel, and having reviewed the exhibits filed, enters the following Memorandum Decision and Order.

Lynna Turnbow and Ed Turnbow, plaintiffs, brought this action against Thomas James Wasden, Ida-Cal Freightlines, Inc., defendants. Plaintiffs are citizens of Nevada; defendants are citizens of Idaho. Thus, jurisdiction is based on 28 U.S.C. § 1332(a)(1) and is not contested.

This is a personal injury action arising out of a truck-pedestrian accident which occurred on U.S. Highway 95 between Luning, Nevada, and Mina, Nevada, on the evening of September 16, 1981. Ms. Turn-bow was crossing Highway 95 when she was struck and seriously injured by defendant Thomas James Wasden. Ms. Turnbow seeks damages based on the alleged negligence of Mr. Wasden. Mr. Turnbow seeks damages for loss of services and loss of consortium of Ms. Turnbow.

Facts

The evidence produced at trial establishes the following facts. At approximately 10:00 p.m. on the night of September 16, 1981, on Highway 95 in the vicinity of Mina, Nevada, the plaintiff Lynna Turnbow was hit by a truck (a tractor pulling a trailer) driven by defendant Thomas Was-den. At the time of the accident Ms. Turn-bow was crossing the highway. Ms. Turn-bow suffered severe, almost fatal, injuries as a result of the accident.

Mr. and Ms. Wasden shared driving duties of what will be referred to here as the Wasden truck. At the time of the accident Mr. Wasden was driving and Ms. Wasden was asleep in the sleeper portion of the tractor. The truck the Wasdens were riding in was owned by their employer and co-defendant, Ida-Cal Freight Lines, Inc. (Ida-Cal). The Wasdens and the truck were on Ida-Cal business at the time of the accident.

The Wasdens had started out from Nam-pa, Idaho, at about noon that day, hauling a load of “swinging beef” (beef carcasses suspended from the roof of the trailer) toward Los Angeles where they were due to arrive early the next morning. At Hawthorne, Nevada, approximately thirty miles north of the accident site, the Wasden truck was joined by three other Ida-Cal trucks going to the same destination and they all proceeded south on Highway 95 toward Mina in a convoy with the Wasden truck leading.

Shortly before the convoy came upon the Turnbow pickup, another pickup had been observed by Mr. Wasden parked along the east side of the highway in the northbound lane. Mr. Wasden warned the other following drivers in the convoy with his C.B. radio to be on the lookout for that pickup truck. He slowed his truck to a speed of 50 miles an hour, and soon after that he spotted the Turnbow pickup parked along the west side of the south bound lane of the highway. Again he cautioned his fellow convoy drivers and continued on at the same reduced speed of 50 miles an hour, steering his truck toward the center of the highway, but in the southbound lane. The speed limit in the area was 55 miles per hour.

During the late afternoon and early evening of September 16, 1981, the Turnbows had been drinking. Ms. Turnbow had consumed a considerable quantity of beer. Just prior to the accident, as the Turnbows drove down Highway 95 in their pickup truck, Ms. Turnbow requested her husband to stop so that she could go to the bathroom. The Turnbows argued about whether they should stop for this purpose. They had also been arguing about whether Mr. Turnbow should take Ms. Turnbow home before or after he went to get gas for his truck. Mr. Turnbow was not thrilled about having to stop, but nonetheless pulled the pickup to the side of the highway and stopped with the truck lights on and engine running.

Ms. Turnbow alighted. She testified she was looking for a bush for concealment while she went to the bathroom and could find none on the west side of the highway (where the pickup was parked). She, therefore, decided to cross the highway, believing there would be a bush suitable for her purposes on the other side. Pictures of the scene indicate generally low growing bushes on both sides of the road, affording little potential for concealment.

Having relieved herself and apparently still unhappy with Mr. Turnbow, Ms. Turn-bow started to walk home toward Luning, Nevada, which was several miles to the north, rather than to return to the pickup. However, after going a short distance, she reversed her direction and commenced to walk south, back along the east side of the highway parallel to where the truck was parked and, having reached that point, started to cross the highway. She had just crossed the centerline of the highway into the southbound lane when she looked to the north and saw Mr. Wasden’s truck bearing down on her. The truck was almost on top of her. She heard a loud roar and observed the large Wasden truck swerve to miss her. Then she was struck by the right front fender and bumper of the truck, receiving grave injuries. The Wasden truck almost missed Ms. Turnbow. Only the extreme right eighteen inches of the right fender and bumper hit her.

At the time she was struck Ms. Turnbow was grossly intoxicated. Later tests showed her blood alcohol was at a level of O. 274 at the time of the accident. Evidence received in the case indicates that at that level Ms. Turnbow’s alertness and motor functions were greatly impaired. This Court notes that the blood alcohol level at which a driver in Nevada is presumed to be under the influence of alcohol is 0.10.

Ms. Turnbow testified that prior to the accident, when she was walking along the side of the highway outside of the pickup truck, she recalls seeing the lights of Mina, Nevada, which were about a mile south. However, she also testified that she failed to see the large Wasden truck bearing down on her until three seconds or less before she was hit. The Wasden truck was well lighted as it proceeded down the road toward Ms. Turnbow. Its headlights were on and it displayed numerous other lights from the front, including two which illuminated the luminous front of the large trailer which the Wasden tractor was pulling.

Analysis

It is clear from her testimony that when she started to cross the highway, Ms. Turn-bow either failed to look up and down the highway at all, or was in such an inebriated condition that when she looked she was in such a fog that she couldn’t see what any prudent normal, reasonable person would have seen, i.e., that the Wasden truck was rapidly approaching. Nonetheless, Ms. Turnbow stepped right out into the path of the truck as it sped toward her.

Ms. Turnbow testified she is far sighted and does not require glasses to see distances. She was familiar with the road, having driven on it a number of times before.

The night was very dark and overcast. There was no moon. The road was dry and was straight and relatively level for a distance of a mile north of the scene of the accident. As Mr. Wasden approached, he was alert looking at the Turnbow pickup parked by the side of the highway and also looking at the travel way of the highway. From a distance Mr. Wasden saw the tail lights on the Turnbow pickup blink one after another. This indicated to him that someone might be outside in back of the Turnbow pickup or had walked behind it. In view of the short period of time between the time Mr. Wasden saw the tail lights blink on the Turnbow pickup and his arrival at the pickup, as contrasted with the length of time required for Ms. Turnbow in her inebriated condition (which would have caused her to walk slowly) to get out of the pickup, walk across the highway, relieve herself, start walking toward Luning, then retrace her steps and eventually walk back along the east side of the road to a point opposite the pickup, and then cross the highway to the center, would indicate that the person outside the pickup whom Mr. Wasden saw walk in back of it was Ed Turnbow, not Ms. Turnbow.

There was nothing to alert Mr. Wasden that anyone would be intending at that time to cross the highway. His concern was that someone might get out of the pickup and step on the travel way or that the door of the pickup might be opened into the traffic lane. Seeing a person walk in back of a parked pickup was scant indication that that person or anyone else, was about to walk across that high speed, heavily travelled Highway 95 from the opposite side of the road from where the Turnbow pickup was parked.

As noted before, the Wasden truck contained a load of swinging beef. A load of swinging beef requires greater caution on the part of the driver than some other types of freight loads. When the brakes are applied, or the truck is turned or stopped, the shifting of the high center of weight of the cargo may cause the tractor and trailer to become difficult to control. However, under the circumstances, Mr. Wasden’s actions in continuing down the highway and steering toward the center of the road to give the pickup a wide berth appear to be reasonable and prudent. He had reason to be concerned about the pickup, but no reason to anticipate someone would try to cross the highway from the opposite side.

The evidence is that Mr. Wasden did not see Ms. Turnbow on the highway until somewhere between twenty and fifty feet from the point of impact. It is unclear when Ms. Turnbow started to cross the highway, but it appears it was only a short time before the Wasden truck arrived on the scene. There is some evidence she might have been standing in the road, just prior to the accident, rather than crossing it, but the more credible evidence is that she was crossing the road when struck. She was wearing dark clothing and, when Mr. Wasden saw her, was turned to her side. Ms. Turnbow is not a large person and under the conditions of that evening Mr. Wasden could not see her until he came very close to her. When he did see her, Mr. Wasden immediately applied his brakes and swerved his truck into the northbound lane of the highway to try to miss Ms. Turnbow. Unfortunately, he was unable to do so. Ms. Turnbow survived at all only by a miracle and the excellent medical care which she received.

Mr. Wasden did swerve the truck toward the east side of the highway. He could not, however, have swerved any further; as it was, his left wheels left the highway on the opposite (east) side of the road as he tried to swing around her. In addition, if he had turned more sharply, the truck would have jackknifed or turned over. All witnesses agreed that if he had turned more sharply it would have caused more serious injury to Ms. Turnbow and injuries or fatalities to others at the scene. As soon as he did see her, Mr. Wasden exercised reasonable care seeking to avoid injury to Ms. Turnbow. He kept his truck under reasonable control.

This is not to say that Mr. Wasden was entirely blameless. He might have further diminished his speed. However, in the circumstances, his speed of 50 miles per hour does not seem unreasonable on that flat, open, level stretch of Nevada desert highway. Mr. Wasden had nothing more than knowledge of a pickup truck parked to the side of the road and knowledge that someone might be outside of the truck. If Mr. Wasden had notice that someone might be crossing the highway, he would have a duty to slow his vehicle to a greater extent than he did. See NRS 484.363. However, he had no reason to believe someone would be crossing the highway at that time. Mr. Wasden was keeping a reasonable lookout for pedestrians or other hazards along the highway.

Mr. Wasden is not charged with any duty to anticipate that Ms. Turnbow would try to cross the highway at that time. Mr. Wasden is charged with the duty to operate his truck with the same degree of care and caution which an ordinary careful and prudent person would exercise under the same or similar circumstances. Although he was looking in the direction of where she was, he was not able to observe her until nearly on top of her. As noted above, the evidence indicates that she apparently did not come onto the highway and start to cross until he was quite close. Thus, this Court finds that any negligence on Mr. Wasden’s part was at the most, very minimal.

Plaintiffs’ counsel argued at the trial that, as Mr. Wasden approached, he should have focused his eyes on the highway rather than on the pickup truck in case someone was crossing the highway. Mr. Wasden is charged with exercising due care to avoid colliding with pedestrians upon any roadway and to exercise proper precaution upon observing any confused or incapacitated person upon a roadway. At any distance (until he was right at the location of the pickup), if Mr. Wasden was looking at the pickup he would also have seen the travelway of the highway at the same time, and vice versa. However, on what he could see Mr. Wasden should have been more concerned about problems which could arise in and around the pickup than that someone would decide to walk across the highway, from the side opposite to where the pickup was parked, just at the time he passed. To infer negligence, we would have to infer that Mr. Wasden failed to exercise due care and that he should have seen the intoxicated Ms. Turnbow. Nevada law does not require the driver of a vehicle to anticipate that a pedestrian will be walking in the middle of a highway with no marked crosswalk within miles, any more than a driver should anticipate that a vehicle approaching from the opposite direction would suddenly cross over to his lane of traffic. See Johnson v. Brown, 77 Nev. 61, 66, 359 P.2d 80, 82 (1961). As the Nevada Supreme Court noted in Johnson and affirmed in Fennell v. Miller, 94 Nev. 528, 530-531, 583 P.2d 455, 457 (1978):

“[I]t is not required of the driver of a vehicle to anticipate that a pedestrian would be crossing a boulevard in the middle of a block at any point other than within a marked crosswalk, any more than a driver should anticipate that a vehicle approaching from the opposite direction would suddenly cross over into his lane of traffic. A driver cannot be charged with failure to exercise due care toward a person so crossing the boulevard, unless such person is observed in time for the driver to avoid colliding with him.” (cites omitted)

As in Johnson and Fennell, in this case there is no evidence that Mr. Wasden should have anticipated Ms. Turnbow suddenly appearing in the middle of Highway 95. Further, as this Court found above, there is no evidence that Mr. Wasden saw Ms. Turnbow in time to avoid the collision.

Plaintiffs’ counsel also argued that Mr. Wasden was going too fast because he would not have been able to stop his truck within the range of his headlights at the speed he was driving. However, Mr. Was-den’s testimony was that he could have stopped within the 200 foot range of his headlights if he had “locked them up”, meaning he had placed his vehicle into a skid by fully applying all brakes. The preponderance of the evidence is that that testimony is true.

It is further claimed that Mr. Wasden was late in meeting the schedule to get his load of beef to Los Angeles by the appointed time. However, this is irrelevant because Mr. Wasden had slowed his speed to only 50 miles per hour and was on the alert for any problem that might arise around the parked pickup truck. Hence, whether or not he was late was of no substantial consequence under the circumstances at the time of the accident. There was no reason for Mr. Wasden to sound his horn until he observed Ms. Turnbow on the highway and by then it was too late for the horn to have effectively warned Ms. Turn-bow.

In addition to lack of evidence that Mr. Wasden was negligent, defendants argue that Ms. Turnbow’s own negligence precludes her recovery. Defendants cite the following statutes in support of their argument that Ms. Turnbow’s actions were negligent or negligent per se:

“484.327 Crossing at other than crosswalks. Except as provided in NRS 484.-328:
1. Every pedestrian crossing a highway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the highway____and
“484.331 Pedestrians on highways; soliciting rides, business; pedestrians under influence of intoxicating liquors, drugs.
4. It is unlawful for any pedestrian who is under the influence of intoxicating liquors or any narcotic or stupefying drug to be within the traveled portion of any highway____”

Ms. Turnbow did owe a duty to yield to the Wasden truck. See NRS 484.327(1). Ms. Turnbow was under the influence of intoxicating liquor at the time she walked within the travel portion of the highway and, thus, was in violation of NRS 484.-331(4). She owed a duty to look in both directions before crossing the highway and, as mentioned above, either did not do so at all, or was in such an inebriated state that when she looked, she was unable to see what was coming. Although she owed a duty to be alert, Ms. Turnbow was not alert.

The ultimate issue here is whether Mr. Wasden was more or less negligent than Ms. Turnbow. Plaintiffs’ attorney has done a highly skillful job of endeavoring to develop and exploit all the possible indications of negligence on the part of Mr. Wasden. Mr. Wasden’s conduct was not perfect, but comparing the conduct of Mr. Wasden and Ms. Turnbow, Ms. Turnbow’s conduct was far more negligent than that of Mr. Wasden. The preponderance of the evidence is that the negligence of Ms. Turnbow contributed more to cause the accident and her resulting injuries than any negligence of Mr. Wasden. Upon making this finding, this Court may not award any damages to Ms. Turnbow. See NRS 41.-141(1). Nevada law adopts the comparative negligence standard, thus, precluding recovery if plaintiff’s actions are more negligent than defendant’s. Id.

The Court notes that the case was ably and effectively presented by counsel for both sides. One must have great sympathy for the pain and terrible injuries suffered by Ms. Turnbow and for her present condition. However, the accident was more her fault than Mr. Wasden’s fault.

In addition, Ed Turnbow seeks damages for loss of consortium and loss of services. A spouse may maintain an action for loss of consortium against a third party tortfeasor where that tortfeasor has caused the other spouse to suffer bodily injuries. See General Electric Co. v. Bush, 88 Nev. 360, 367, 498 P.2d 366, 370-371 (1972). The right of action must be brought with the spouse’s cause of action. Id. Further, the right is derivative and accordingly may accrue only to the extent that the other spouse has a cause of action against the alleged tortfeasor. See Towse v. Hawaii, 64 Hawaii 624, 647 P.2d 696, 705 (1982); Laws v. Fisher, 513 P.2d 876, 878 (Okl.1973); contra Norwest v. Presbyterian Intercommunity Hospital, 52 Or. App. 853, 631 P.2d 1377, 1381 (1981). Thus, judgment should be entered against Ed Turnbow.

This memorandum decision and order shall constitute findings of fact and conclusions of law.

IT IS, THEREFORE, ORDERED that the Clerk of the Court shall enter judgment in favor of defendants and against plaintiffs.

      . The loud noise Ms. Turnbow heard was probably the "Jake Brake” on the Wasden truck. This is a compression brake which, if set, automatically engages when the driver’s foot is lifted from the accelerator. The testimony indicates that when Ms. Turnbow heard the loud noise Mr. Wasden had already lifted his foot from the accelerator and had begun to apply his brakes.

      . NRS 484.363 provides:
      484.363 Duty of driver to decrease speed under certain circumstances. The fact that the speed of a vehicle is lower than the prescribed limits does not relieve a driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding highway, or when special hazards exist or may exist with respect to pedestrians or other traffic, or by reason of weather or other highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering a highway in compliance with legal requirements and the duty of all persons to use due care.

      . This Court also notes that Ms. Turnbow testified that she heard the "loud noise" of the brakes in light of her intoxicated state and the fact that a loud sound did not warn her, the horn would probably not have warned Ms. Turnbow.

      . In certain circumstances, it is reasonable to rely on the violation of statutes as a basis for negligence per se. See Gordon v. Hurtado, 96 Nev. 375, 379, 609 P.2d 327, 329 (1980).

      . This Court need not reach the issue of whether Ed Turnbow is legally the spouse of Lynn Turn-bow in light of our conclusion that there is no cause of action for loss of consortium.

      . This position is also in accordance with the American Law Institute in Restatement.