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IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1973

JESSE L. SMITH, PETITIONER

versus

ILLINOIS CENTRAL RAILROAD COMPANY,

INTERNATIONAL PAPER COMPANY, and

AMERICAN MOTORISTS INSURANCE

COMPANY

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRUMFIELD & BRUMFIELD

H. Alva Brumfield, OI

509 St. Louis Street

Baton Rouge, Louisiana 70821

Attorneys for Jessie L. Smith, Petitioner

Franklin Press, inc. <j Saton Rouge, La.

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Page

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QUESTIONS PRESENTED 000000... een . 2

STATUTE INVOLVED oo osseseeseseesevnse ees aie | 2

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REASONS FOR GRANTING THE WRIT .....02.0.. eee 6

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PR I oon oes crcciherrccaenerenescsenansmecnat 10

APPENDIX “A” Opinion of the Court of Appeal for the

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APPENDIX “B” Denial of Petition for Rehearing and

Rehearing en Banc ................ ee Enh tv) Dae DN Seen ne oe 16

TABLE OF AUTHORITIES

Page

Auto Transports, Inc. v. Hinman, 332 F.2d 553 (10 Cir.

REIN RE BEE OE OIE RELA Ae eNO 8

Chesser v. Casey, 284 F.2d 72 (5 Cir. 1960) si an ree toe REN 8

Downs v. American Employers Insurance Company, 423

ep ep 8 ee, eee eee 8

_ Franklin v. Delgado, 262 F.2d 439 (5 Cir. 1959)... 8

Fulton v. Shaw, 321 F.2d 545 (5 Cir. 1963) 0000.00... 8

Page v. St. Louis Southwestern Railway Company, 349

Be I: MII ssc esccevos doves eheecteneceavbavnnvesasesdsszcres 7

Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500

I erica nscsiaicsasidnsagicwtursow a eiascoine ol A So 7

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IN THE

SUPREME COURT OF THE UNITED STATES |

No.

raids

October Term 1973 '

JESSE L. SMITH, PETITIONER :

versus

ILLINOIS CENTRAL RAILROAD COMPANY. :

INTERNATIONAL PAPER COMPANY, and E

AMERICAN MOTORISTS INSURANCE ‘

COMPANY é

‘

i

PETITION FOR WRIT OF CERTIORARI :

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Jesse L. Smith, petitioner, prays that a writ of certiorari

issue to review the judgment of the United States Court of

Appeals for the Fifth Circuit in the above entitled case.

OPINIONS BELOW

When this case was tried to a jury, resulting in a verdict

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in favor of the defendants, and against the petitioner, the

District Court entered judgment in accordance therewith,

without written opinion. The opinion of the United States

Court of Appeals for the Fifth Circuit, affirming the judg-

ment is reported at 486 F. 2d 943 (5 Cir. 1973), (Appendix

“A,” infra, pp. 11-15)

JURISDICTION

The denial of the Petition for Rehearing and Rehearing

en Banc was entered on January 10, 1974 (Appendix “B,”

infra at p. 16) and is reported at 486 F. 2d 1055 (5 Cir.

1974). The jurisdiction of this court is invoked under 28

U.S.C. Section 1254.

QUESTIONS PRESENTED

1. In a case brought under the Federal Employers

Liability Act does an instruction on unavoidable accident

constitute reversible error when negligence on the part of

the railroad has been shown?

2. Can an appellate court affirm a finding of no liability

on the part of the railroad on the basis of a possible inference

that the principal cause of the accident was inevitable jerking

of railroad cars in a switching operation?

STATUTE INVOLVED

Federal Employers Liability Act, 45 U.S.C. Sec. 51 et seq.

STATEMENT

Plaintiff’s severe injuries, culminating in the amputa-

3

tion of his right leg after a load of pulpwood fell on him

from railroad car number 1670, were sustained on March 26,

1970, on the spur track located on premises owned by Inter-

national Paper Company in Wilkinson County, Mississippi.

At that time, plaintiff was employed by the Illinois Central

Railroad Company as a conductor on a train making a run

from Baton Rouge, Louisiana, to Vicksburg, Mississippi.’

When the train reached the International Paper Com-

pany spur track, it began switching operations necessary to

pick up cars loaded with pulpwood. Plaintiff had bills of

lading on two cars which were ready for shipment; tliese

two cars were located on either side of car number 1670.

Car number 1670 was not going to be picked up as it was

not ready for shipment,? and it would have to be switched

back on to the spur track.

Negligence shown on the part of the railroad consisted

of the manner in which the switching operation was carried

out, and the failure to supply plaintiff with a walkie-talkie.

With respect to the first course of negligent conduct, Mr.

1. Plaintiff alleged that the defendant railroad breached 45 U.S.C.

Sec. 51 et seq by failing to provide him with a safe place to work;

failing to provide him with proper communications equipment, and in

moving the train at an excessive speed after an unsafe coupling maneu-

ver. International Paper Company was sued under the laws of Missis-

sippi which provide for comparative negligence (Miss. Code, Title 10,

Sec. 1454), and was alleged to have been negligent in the manner in

which the pulpwood car was loaded, in failing to maintain the track

in proper condition so as to avoid excessive rocking of the pulpwood cars.

The railroad filed a cross complaint against International Paper Com-

pany, and both defendants pleaded contributory negligence and assump-

tion of risk.

--2, Bundles of pulpwood approximately sixty-four inches in length

were placed first on one side of the railroad car, the bottom of which

sloped slightly toward the center in a groove. After all of the first half

was properly aligned, the other half of the car was loaded and then

the sides of the wood were “bumped” by a pad on the loader to push

them in securely (App. 172). Car number 1670 had been bumped, but

not yet “topped,” which involves making wood at the top of the rail-

road car level (App. 178).

A ae ed

TION OTD She a

4

Claude Williams, brakeman, instructed the engineer to com-

mence backing up through a walkie-talkie provided him. He

recalled that some of the wood on car number 1670 was not

even, and therefore, the car should have been moved more

slowly than ordinarily. Nevertheless, Mr. Williams did not

remember advising the engineer that such precautions were

needed despite his acknowledgment that he should have

done so.

The first attempt at the coupling maneuver was unsuc-

cessful, and a second try was made. Both of these couplings

were accompanied by a loud bang, characterized as being

louder than usual by Ralph Smith, International Paper Com-

pany employee. Following this unusually hard coupling, Mr.

Smith stated the train moved out faster than ordinarily.

After giving the signal to the engineer to move forward,

Mr. Claude Williams caught on to the side of the second or

third car from number 1670. Because plaintiff had no walkie

talkie, he had to ride out to the main line with Williams on

the train. Had plaintiff been furnished with such a com-

munications device, there would have been no need for him

to catch on to the side of car number 1670 and proceed to

the main line in order to direct the switching operations

on the scene.

As the train moved forward approximately eight car

lengths, the pulpwood on car number 1670 began rolling off

the east side of the car, striking plaintiff repeatedly until

he could no longer hold on to the grab irons. He swung him-

self away from the train to avoid falling under the wheels,

and dropped to the ground.

5

Negligence on the part of International Paper Company

arose from the manner in which the wood was stacked in

car number 1670. Ralph Smith, a loader for International

Paper Company, examined photographs offered in evidence

of car number 1670 after the accident, and stated that there

had been an overlapping condition of the wood which should

have been corrected immediately. Failure to make such cor-

rections would be improper loading according to this witness.

To the same effect is the testimony of Mr. B. L. Davis, a

railroad employee, who testified that overlapping would result

in the wood falling over.

Plaintiff moved for a directed verdict at the close of

his case, and at the close of all of the evidence.

The court’s charge to the jury was objewted to by plain-

tiff on these grounds: failure to give instructions requested

by plaintiff; instructions on intervening cause and unavoid-

able accident should not have been given since they were

without evidentiary basis; failure to apprise the jury in a

clear manner of the application of comparative negligence

under F.E.L.A. and the substantive law of Mississippi.

The jury found no negligence on the part of either of

the two defendants or the plaintiff, leaving unavoidable acci-

dent as the only possible explanation for the accident. Plain-

3. The jury’s verdict reads in pertinent part:

“We, the jury, find:

1. Was Illinois Central Railroad guilty of negligence? NO

2. If so, did its negligence contribute in whole or in

3

part to plaintiff's injuries? NO

. Was International Paper Company guilty of negli-

gence? NO

4. If so, was its negligence a proximate cause of

plaintiff’s injuries? NO

5. Was plaintiff guilty of negligence? NO

Satan " (App. 543-544)

PONIES

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Claude Williams, brakeman, instructed the engineer to com-

mence backing up through a walkie-talkie provided him. He

recalled that some of the wood on car number 1670 was not

even, and therefore, the car should have been moved more

slowly than ordinarily. Nevertheless, Mr. Williams did not

remember advising the engineer that such precautions were

needed despite his acknowledgment that he should have

done so.

The first attempt at the coupling maneuver was unsuc-

cessful, and a second try was made. Both of these couplings

were accompanied by a loud bang, characterized as being

louder than usual by Ralph Smith, International Paper Com-

pany employee. Following this unusually hard coupling, Mr.

Smith stated the train moved out faster than ordinarily.

After giving the signal to the engineer to move forward,

Mr. Claude Williams caught on to the side of the second or

third car from number 1670. Because plaintiff had no walkie

talkie, he had to ride out to the main line with Williams on

the train. Had plaintiff been furnished with such a com-

munications device, there would have been no need for him

to catch on to the side of car number 1670 and proceed to

the main line in order to direct the switching operations

on the scene.

As the train moved forward approximately eight car

lengths, the pulpwood on car number 1670 began rolling off

the east side of the car, striking plaintiff repeatedly until

he could no longer hold on to the grab irons. He swung him-

self away from the train to avoid falling under the wheels,

and dropped to the ground.

~ e ot ME A SE Tr ata

5

Negligence on the part of International Paper Company

arose from the manner in which the wood was stacked in

car number 1670. Ralph Smith, a loader for International

Paper Company, examined photographs offered in evidence

of car number 1670 after the accident, and stated that there

had been an overlapping condition of the wood which should

have been corrected immediately. Failure to make such cor-

rections would be improper loading according to this witness.

To the same effect is the testimony of Mr. B. L. Davis, a

railroad employee, who testified that overlapping would result

in the wood falling over.

Plaintiff moved for a directed verdict at the close of

his case, and at the close of all of the evidence.

The court’s charge to the jury was objected to by plain-

tiff on these grounds: failure to give instructions requested

by plaintiff; instructions on intervening cause and unavoid-

able accident should not have been given since they were

without evidentiary basis; failure to apprise the jury in a

clear manner of the application of comparative negligence

under F.E.L.A. and the substantive law of Mississippi.

The jury found no negligence on the part of either of

the two defendants or the plaintiff,*? leaving unavoidable acci-

dent as the only possible explanation for the accident. Plain-

3. The jury’s verdict reads in pertinent part:

“We, the jury, find:

1. Was flinois Central Railroad guilty of negligence? NO

2. If so, did its negligence contribute in whole or in

part to plaintiff's injuries? NO

3. Was International Paper Company guilty of negli-

gence? NO

4. If so, was its negligence a proximate cause of

plaintiff’s injuries? NO

5. Was plaintiff guilty of negligence? NO

oie a " (App. 543-544)

et i

6

tiff’s motion for judgment n.o.v., and in the alternative, for

new trial was denied. Following appeal, the Court of Appeals

for the Fifth Circuit, affirmed the judgment, and denied the

Petition for Rehearing and Rehearing en Banc.

REASONS FOR GRANTING THE WRIT

This case presents important issues regarding the burden

of proof imposed on an employee invoking the Federal Em-

ployers Liability Act. Plaintiff’s theory of the case was that

negligence on the part of the railroad concurred with omis-

sions by the International Paper Company; each of the de-

fendants sought to cast blame on the other. At no time

during the trial of this matter was the defense of unavoid-

able accident ever raised until such an instruction was given

by the lower court.

Nevertheless, the appellate court held there was evidence

to support the instruction on the following basis:

“In the first place there was specific evidence tending

to show that the accident was or could have been un-

avoidable: the brakeman and the engineer of the train

both testified that in similar operations there was always

slack between the cars, and that a certain amount of

jerking was therefore inevitable. It could have been

inferred from that testimony that in that particular op-

eration in question, the principal reason the wood had

fallen was that it had been shaken loose by the inevitable

jerking during the operation.” (Emphasis supplied)

Smith v. Illinois Central Railroad Company, supra, at

p. 945-946. (Appendix “A,” at p. 14.)

In contrast to inferential evidence, there was positive

SoS NN a TED SNORE NMR ENE

7

evidence that the railroad car was not properly loaded by

International Paper Company (Smith, App. 233), and that

this condition could cause the wood to fall over (McDavid,

App. 415). Moreover, there was an admission on the part

of a railroad employee that he knew the railroad car was

not ready for shipment, and therefore, it should have been

moved more slowly; nevertheless, he failed to advise the

engineer that such precautions were necessary (Williams,

App. 143). Petitioner submits that the appellate court’s infer-

ring a principal cause of the accident is at variance with

the facts adduced and the jurisprudence applicable thereto.

Of greatest importance is the court’s failure to explain why

the railroad is not liable if its negligence played “. . . any

part, even the slightest .. . ,” Rogers v. Missouri Pacific

Railroad Co., 352 U.S. 500, 506 (1957), in bringing about the

accident. Nowhere is any reason given for this time honored

standard being changed to the employer’s negligence being

the principal cause.

In the case at bar, the defendants did not make out

such proof; on the contrary, the instruction was given at the

instance of the trial court. On appeal, when the court re-

viewed the record for evidence of a cause qualifying as an

unavoidable accident, the most the court could say was that

“It could be inferred . . .” that slack between the cars result-

ing in jerking was a principal reason. Petitioner urges that

this finding is inconsistent with applicable jurisprudence,

particularly the statement in Page v. St. Louis Southwestern

Railway Company, 349 F. 2d 820 (5 Cir. 1965), at p. 825:

“Following again faithfully our admonition that ‘ordi-

narily in [an FELA] case * * * a charge of unavoidable

accident is confusing and tends to distract the jury's

Groner ee

8

attention from the simple issues,’ 312 F. 2d 84, 93, the

Trial Judge declined, over objection of the Railroad to

submit a definitive issue on unavoidable accident. We

fully approve. Experience demonstrates that in a charge

properly structured, there is no need for it and hence

no place for one.”

When there is no affirmative proof of a cause other than

the negligence of the defendants, and there is only a mere

possibility of unavoidable accident situation, such an instruc-

tion cannot be given, Downs v. American Employers Insur-

ance Company, 423 F. 2d 1160 (5 Cir. 1970) (reversing a

jury verdict); Franklin v. Delgado, 262 F. 2d 439 (5 Cir.

1959). Such an instruction has been repudiated when the

accident was shown to be the result of negligence on the part

of one or more parties, Auto Transports, Inc. v. Hinman, 332

F. 2d 553 (10 Cir. 1964); Chesser v. Casey, 284 F. 2d 72

(5 Cir. 1960). As explained by Fulton v. Shaw, 321 F. 2d

545 (5 Cir. 1963), at p. 546: “We think it was necessary

for the defendant to establish some theory of cause of the

accident which excluded the negligence of the parties.”” (Em-

phasis supplied)*

CONCLUSION

The net effect of the jury verdict was to find that this

accident had no cause other than that which was beyond

the reach of either of the two defendants. The action taken

by the trial court in supplying a theory of the case never

envisioned by any of the parties—unavoidable accident—and

affirmed by the appellate court, has significant implications

4. This is the majority rule as illustrated by the many cases col-

lected in Anno., 65 AL.R.2d 12, at pp. 32-34, as well as in the supple-

ments to this annotation.

UR Sn >. ont

9

for all future litigants under the Federal Employers Liability

Act. Not only is the concept of the employer’s liability for

any contributing negligence eroded, but the highly question-

able defense of unavoidable accident is abused by application

to a situation where it could not possibly obtain. It is for

these reasons that petitioner prays that the writ be granted.

Respectfully submitted,

H. ALVA BRUMFIELD, IOI

BRUMFIELD & BRUMFIELD

509 St. Louis Street

Baton Rouge, Louisiana 70821

Attorneys for Jesse L. Smith,

Petitioner

10

PROOF OF SERVICE

I, H. Alva Brumfield, III, attorney for petitioner, and a

member of the Supreme Court of the United States, hereby

certify that on this day I served copies of the foregoing

Petition for Writ of Certiorari on Boris F. Navratil, Esquire,

of the firm of Breazeale, Sachse & Wilson, 701 Fidelity Na-

tional Bank Building, Baton Rouge, Louisiana 70801, and

Roger M. Fritchie, Esquire, of the firm of Durrett, Hardin,

Hunter, Dameron & Fritchie, 614 Louisiana National Bank

Building, Baton Rouge, Louisiana 70801, counsel for respon-

dents.

Baton Rouge, Louisiana, this ___ day of March, 1974.

H. ALVA BRUMFIELD, II

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APPENDIX *A”

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 72-3378

JESSE L. SMITH,

Piaintiff-Appellant,

versus

ILLINOIS CENTRAL RAILROAD COMPANY, ET AL,

Defendants-Appellees.

Appeal from the United States District Court for the

Middle District of Louisiana

(November 13, 1973)

Before WISDOM, GEWIN and CLARK,

Circuit Judges.

PER CURIAM: This is an action for damages brought

by the plaintiff-appellee Jesse L. Smith against his employer,

the Illinois Central Railroad Company, the International

Paper Company, and the Paper Company’s insurer, American

Motorists Insurance Company, to recover for injuries he

suffered while riding on the side of a railroad car filled with

pulpwood. The accident occurred at one of the Paper Com-

pany’s woodyards. The trial court entered judgment for the

defendants after the jury returned verdicts based on special

interrogatories finding that neither the Paper Company nor

12

the Railroad had been guilty of negligence; nor had the plain-

tiff been guilty of negligence. We affirm.

Smith was the conductor on an Illinois Central train

making a run from Baton Rouge, Louisiana, to Vicksburg,

Mississippi. On March 26, 1970, the train stopped at the Paper

Company’s yard in Centreville, Mississippi, to pick up several

freight cars loaded with pulpwood which were ready for ship-

ment to the company’s mills near Vicksburg. Such cars are

“wood racks” in railroad vernacular. The plaintiff’s injury

occurred while the train was performing the switching opera-

tions necessary to connect the wood racks to the rest of the

train. In performing those switching operations, the engineer

had to drive the train’s engine onto a siding paralleling the

main line, where the wood racks were loaded and where they

stood while awaiting shipment. The train had to be coupled

with the wood racks on the siding track. After the coupling,

the cars were driven to the main track, where they were to

be connected with the rest of the train.

Smith’s injury occurred after the train had been coupled

with the wood racks and was on its way to the main line.

When the train had moved eight or ten car lengths after

the coupling, pulpwood logs began to fall off the top of one

of the wood racks. The plaintiff was riding by holding on

to the grab irons on the leading end of the car immediately

following the car from which the wood was falling. When

the falling wood began to strike Smith, he jumped from the

train, swinging out to avoid falling under the wheels. He

suffered a broken pelvis and leg injuries which required the

amputation of his leg.

The plaintiff raises six issues on appeal. The first two

concern the sufficiency of the evidence: first, the plaintiff

argues that the trial judge should have granted him judg-

ment notwithstanding the verdict and, second, that failing

a grant of judgment n.o.v., the trial judge should have granted

13

his*motion for a new trial. Upon a review of the record as

a whole, we find that the evidence was sufficient to support

the jury’s findings that none of the three parties involved

had been negligent. See Boeing Company v. Shipmen, 5 Cir.

1969, 411 F.2d 365. We therefore find the trial judge properly

denied the motions for judgment n.o.v. or, in the alternative,

for a new trial.

The plaintiff’s other four objections all concern the

trial judge’s charge to the jury. The first is a challenge

to the judge’s instruction on unavoidable accident.’ The

1The trial judge’s charge was, if anything, unfavorable to the defendants,

especially to the railroad company. In denying the plaintiff's post-

trial motions, the trial judge observed: “. . . I don’t suppose there

was any portion of the charge of this court that had more em-

phasis or was more emphasized than that the railroad could be

held liable if they were found to have contributed in any way

whatsoever, even in the slightest, to this accident.” The charge

concerning the railroad’s liability was repeated not less than five

times. In instructing the jury on the question of the railroad’s

liability the trial judge said “...he [plaintiff] must prove that

negligence on the part of the railroad which he asserts, contributed

in whole or in part, even the slightest, to his injuries.” Later, he

cherged: “The difference between the two defendants is that under

what we call the FELA — the Federal Employers Liability Act —

the railroad who is governed by that Act, is held liable if their

negligence contributed even the slightest to the accident .. .” The

third time the judge stated: “Going back, ter a moment, if there

is negligence on the part of the railroad and if it contributed in

whole or in part, even the slightest, to the accident, you must find

them guilty of actionable negligence.”

it was after this third repetition, inviting the jury to find the

railroad liable to the plaintiff if its negligence, even the slightest,

contributed to the plaintiff's injuries, when the court informed the

the jury that the mere occurrence of the accident did not mean

that anyone was negligent, as sometimes accidents happen which

are inevitable. At two other points in the charge the trial explained

the plaintiff's rights of recovery against the railroad “if you find

that its negligence played any part, however small, in causing plain-

tiff injury.”

After properly explaining “unavoidable accident,” the trial judge

did not err in adding:

“. . . Lastly, in connection with negligence and proximate

cause the mere happening of an accident does not neces

sarily mean that someone is negligent. In law we recognize

what are termed unavoidable or inevitable accidents. These

terms do not mean literally that it was not possible for such

an accident to be avoided. They simply denote an accident

that occurred without having been caused by negligence,

even though such accident should have been avoided by the

14

plaintiff argues that there was no evidence in the record

to support this instruction. We cannot agree. In the first

place, there was specific evidence tending to show that the

accident was or could have been unavoidable: the brake-

man and the engineer of the train both testified that in

similar operations there was always slack between the cars,

and that a certain amount of jerking was therefore inevi-

table. It could have been inferred from that testimony that in

the particular operation in question, the principal reason

the wood had fallen was that it had been shaken loose by

the inevitable jerking during the operation. Both the brake-

man and the engineer testified that there were no harsh

couplings and that the entire switching operation was smooth

and void of any “bangs” or irregularities. Three other wit-

nesses testified that they saw nothing unusual and heard noth-

ing unusual. It is significant too that the plaintiff never

settled on a specific theory of how the accident had hap-

pened. In his complaint and throughout the trial the plain-

tiff attributed the accident to any of a number of causes,

including (1) the negligence of the engineer in operating the

train at too fast a speed after the coupling operation; (2)

the negligence of the Paper Company in failing properly to

maintain its track; (3) the negligence of the Paper Company

in failing to load the wood racks properly. There was no

substantial proof that any of these possible causes had in

fact caused the accident, and the plaintiff in making his case

constantly shifted ground in trying to fix liability for his

injury on one or the other of the defendants. It was as

plausible to find the accident a result of unavoidable causes

exercise of exceptional foresight, skill or caution, still no

one may be liable for injuries resulting from it.”

Again:

“. . . It was possible for you to find that neither of the de-

fendants was guilty of negligence at all. You may find that

the plaintiff was the only one negligent. You may find that

the plaintiff was not guilty of negligence. You may find that

only the paper company was guilty of negligence and proxi-

mate cause, or you may find that the railroad was guilty of

negligence which contributed in some way to the accident.”

a ae ee weet Ms

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as it was to find the accident the result of any of the alter-

native causes cited by the plaintiff. Consequently, we cannot

say that the record did not support the trial judge’s instruc-

tion on unavoidable accident.

The plaintiff’s other three objections to the charges are

without merit. The second objection is to the trial judge’s

instruction on intervening cause, and the third is to his

instructions on contributory and comparative negligence.

With respect to both of these instructions, it is clear that

even if the instructions were erroneously given, they could

not have prejudiced the plaintiff. The jury would have needed |

to consider those two instructions only if it had first found

one or the other of the defendants negligent. Since its ver-

dict was on special interrogatories to the effect that neither

of the defendants was negligent, it is clear that the jury

had no reason to consider the challenged instructions.

The final challenge is to the failure of the trial judge

to instruct the jury on the Federal Safety Appliance Act, 45

U.S.C. § 2 (1970). We find no error in the judge’s action

in this regard. There was no evidence in the record support-

ing the conclusion that the railroad had violated the Federal

Safety Appliance Act.

AFFIRMED.

APPENDIX “B”

UNITED STATES COURT OF APPEALS

Fifth Circuit

DENIALS OF REHEARING EN BANC

(Rule 35 Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 12)

Group 1—Denials where no member of the panel nor Judge

in regular active service on the Court requested

that the Court be polled on rehearing en banc.

Group 2—Denials after a poll requested by a member of the

panel or a Circuit Judge in regular active service.

Group 3—Denials on the Court’s own motion after a poll

requested by a member of the panel or a Circuit

Judge in regular active service.

Docket

Title Number

GROUP 1

Bastida v. Henderson ............. 73-2399

Ps a ree rere 73-2019

EO A Pere rr errs 73-2087

NMS Industries, Inc. v. Premium

Corporation of America, Inc. .... 73-1869

Robinson v. Jefferson County

Board of Education .............. 73-2134

Smith v. Illinois Central

Railroad Company ............... 72-3378

eG Wee Sanco duns ch ewceen es 6 . 73-1615

Date of

Denial

1/14/74

1/16/74

1/14/74

1/10/74

1/10/74

1/10/74

1/11/74

Citation of

Panel Decision

E.D.La., 487

F.2d 860

N.D.Tex., 486

F.2d 219

N.D.Fla., 486

F.2d 1400

361 F.Supp.

129

N.D.Miss., 487

F.2d 292

N.D.Ala., 485

F.2d 1381

M.D.La., 486

F.2d 943

W.D.Tex., 487

F.2d 206

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17

73-2290

73-2416

73-2216

1/17/74

1/16/74

1/16/74

M.U.F 18., 466

F.2d 1402

E.D.La., 487

F.2d 462

W.D.Tex., 486

F.2d 1402