author: TUTTLE, Circuit Judge:

text:
    Albert MARTIN, on behalf of himself and others similarly situated, Plaintiff-Appellant, v. THOMPSON TRACTOR COMPANY, Defendant-Appellee.
    No. 71-2957.
    United States Court of Appeals, Fifth Circuit.
    Oct. 5, 1973.
    U. W. demon, Birmingham, Ala., William Robinson, Jack Greenberg, New York City, for plaintiff-appellant.
    John J. Coleman, Jr., John H. Morrow, James P. Alexander, Birmingham, Ala., for defendant-appellee.

      Before TUTTLE, MORGAN and RO-NEY, Circuit Judges.
   TUTTLE, Circuit Judge:

This Court has withheld determination of this case pending a decision by the Court sitting en banc of Brisco Huff, etc. v. N. D. Cass Company of Alabama, 485 F.2d 710 (5th Cir. September 4, 1973), which modified on rehearing the original decision in Brisco Huff, etc. v. N. D. Cass Company of Alabama, 468 F.2d 172 (5th Cir. 1972).

.. There are two issues before the Court in this case, one of which has now been resolved by the en banc decision of this Court in Huff. In that case, this Court held that it is not proper for a trial court to dismiss a class action solely on the basis of a preliminary determination that the single named plaintiff purporting to represent the class is not entitled to relief on the merits of his individual claim.

The first issue we consider is that which has now been settled in Huff. In its order on pre-trial hearing the trial court stated:

“The plaintiff has also alleged that the company has engaged in other unlawful employment practices proscribed by Title YII . . . including the maintenance of racially segregated facilities and discriminatory job assignments, classifications, hiring, and promotional practices. The court is of the opinion that unless plaintiff is successful in showing that his individual discharge was improper, he would not have adequate standing to challenge such practices. In the event the plaintiff is unsuccessful at the original trial of this case in invalidating his discharge, the other aspect of his asserted cause of action shall be dismissed without prejudice to the right of others having proper standing to challenge such practices by separate action. If the plaintiff prevails on the initial trial then the court shall at that point determine whether this cause shall proceed to a second stage of trial involving such other employment practices.”

On the trial of the merits of plaintiff’s individual claim the trial court determined that plaintiff had failed to make out a case of discriminatory conduct by the defendant. Thereupon, the court dismissed the plaintiff’s individual case and the class action.

In these circumstances, the appropriate action for this Court to take is to remand the case to the district court for it to take the action suggested in the last sentence from the pre-trial order quoted above. That is to say the trial court shall now determine whether this cause should proceed to a second stage of trial ’ involving such other employment practices, with the plaintiff as a representative of the class of employees.

We next turn to the issue raised by Martin’s contention that the trial court erred in finding against him with respect to his charge of racial discrimination. The plaintiff claimed that he had been discharged “because of his failure to acquiesce in certain racially discriminatory policies, practices or usages of the company, particularly those relating to what are claimed to have been racially segregated facilities of the company.” The defendant attributed his discharge to his “poor attitude toward his fellow employees and his difficulty in relationships with his supervisors.”

The trial court was not insensitive to the danger of accepting a general term such as “poor attitude” as adequate grounds for a discharge, if any racial overtones were present in the relationship between the parties. . The trial court said:

“The question that really becomes a very tough one for the court stems from the fact that the words ‘attitude,’ ‘good attitude,’ or ‘bad attitude,’ or ‘lack of cooperation’ can very easily be the label to cover and conceal ra-' dally motivated prejudices and dis-criminations, in fact, under some other title that looks acceptable. So the court has to, with great scrutiny, look at what was meant by, and what really undergirded this comment about lack of cooperation and attitude.”
The court further said:
“If this court were to conclude that that [racial prejudice] provided any substantial part in the kind of recommendation that Mr. Cummings made, which was in turn relied upon by Mr. Thompson, then it would be my duty, I think, to find that there had been an unlawful employment practice by discharge on account of the opposition to that unlawful practice . . . ”
Finally, the trial court concluded:
“I am convinced that the plaintiff’s attitude toward his work in that service department was bad, and that it was affected by his feeling of being underpaid for the work he was doing, and this colored his response to the many things that were asked, and that came along.”

As we have heretofore stated in companion eases, Arthur Lee Smith v. Delta Airlines, Inc., 486 F.2d 512 (5th Cir. 1973) and Bradley v. Southern Pacific Company, 486 F.2d 516 (5th Cir. 1973), we review findings of fact in Title VII cases in the same manner as other fact findings of the trial court are reviewed. A careful review of the record in this case makes it clear that this Court cannot determine that the findings of the trial court with respect to the grounds of discharge were clearly erroneous. The trial court’s determination with respect to the plaintiff Martin’s individual rights must therefore be affirmed.

The judgment of the trial court dismissing the complaint must be reversed because such dismissal was based upon the ground that the plaintiff Martin’s inability to recover for himself per se disqualified him as a representative of the class of employees of the defendant company.

Reversed and remanded for further proceedings not inconsistent with this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Arthur Lee SMITH, on behalf of himself and others similarly situated, Plaintiff-Appellant, v. DELTA AIR LINES, INC., Defendant-Appellee.
    No. 71-3197.
    United States Court of Appeals, Fifth Circuit.
    Oct. 5, 1973.

      Oscar W. Adams, Jr., Birmingham, Ala., William L. Robinson, Jack Green-berg, New York City, for plaintiff-appellant.
    William Gardner, Birmingham, Ala., Sidney F. Davis, Asst. Gen. Counsel, Frank Cotter, Legal Div., Atlanta, Ga., for defendant-appellee.
    Before TUTTLE, MORGAN and RO-NEY, Circuit Judges.
   TUTTLE, Circuit Judge:

This is another Equal Employment Opportunity case which the court has withheld pending a decision by the Court, sitting en banc, of Brisco Huff, etc. v. N. D. Cass Company of Alabama, 485 F.2d 710 (5th Cir. 1973) which modified on rehearing the original decision in Brisco Huff, etc. v. N. D. Cass Company of Alabama, 468 F.2d 172 (5th Cir. 1972).

There are three issues before the court in this case, one of which has now been resolved by the en banc decision of this Court in Huff. The others still remain for our consideration in view of the action taken by the Court in its en banc decision that it is not proper for a trial court to dismiss a class action solely on the basis of a preliminary determination that the single named plaintiff representing the class is not entitled to relief on the merits of his individual claim. If the Court had decided this issue against the individual plaintiff’s contention there would have been left for us to consider only the single question whether the trial court’s findings of fact respecting the discharge of the plaintiff were clearly erroneous. As it is, we have in addition to the review of the factual matter, the contention of the appellee that the class action pleaded by Smith deals with conduct of the defendant that was not encompassed within the claim he originally made before the EEOC.

We consider first the appeal on the fact findings by the trial court resulting in its conclusion that Smith could not recover in his own right on the ground that his termination of employment was racially motivated. The plaintiff, who had been an “agent” of Delta Airlines in Birmingham for approximately nine months was discharged on the stated ground that he had not complied with grooming requirements of the company, dealing with facial hair. Briefly, it was the contention of the plaintiff that his sideburns did conform to the policy and that further it was more difficult for black persons tó conform strictly to these provisions dealing with sideburns and mustaches than it would be for persons of the white race.

The trial court had ample evidence before it to determine, as it did, that the grooming requirements were not invalid and that they were not racially motivated ; nor were they racially applied or enforced in order to accomplish plaintiff’s dismissal. The trial court said:

“It may be that the requirement or the stating of a condition that sideburns will not be bushy or that the hair shall be well trimmed may impose some additional burden on persons of the negro race, because of the hair, that I think is under the evidence, tends to be a general attribute of the race . . . The question is when there is a rule that to some degree may fall not exactly the same on persons of all races, for that reason alone the rule must fall. And my conclusion, where there is no great difficulty in complying with the rule and which can be complied with by all, that the rule does not have to go out on that account.
“In this particular case, it seems clear to the Court that a black person can have a closely trimmed sideburn, or if the company requires it, can have closely trimmed hair. It may require more trimming more often to do that. I do not see then that the rule itself is being discriminatory.”
The court also commented as follows: “It is perhaps unfortunate in this case, at least I feel it, that we find the plaintiff that I feel like probably shouldn’t have been discharged, but I don’t feel like the facts show that this is a case of racial discrimination in what happened. And that is the area of my jurisdiction under the Title VII of the Act and Section 1981 Act.”

We review findings of fact in Title VII cases in the same manner as other fact findings of the trial court are reviewed. This Court may not set them aside unless it is able to conclude that such findings are “clearly erroneous.” Rule 52(a) F.R.Civ.P. Upon considering the record in this case we conclude that there was evidence upon which the trial court could base these findings. The denial of the plaintiff’s individual claim that he was discharged on account of racial discrimination must therefore be affirmed.

As we have indicated above the Huff case has settled the question whether a trial court can dismiss a class action brought by a single named plaintiff, seeking to represent both himself and the class, solely because the trial court concludes that the plaintiff cannot succeed to recover individually on his own claim.

This matter was dealt with by the trial court in a manner which indicates clearly that dismissal of the suit was based on its finding that Smith was not entitled to recover in his individual capacity. Dealing with this subject the trial court said:

“(b) Plaintiff also alleged that defendant has committed other unlawful employment practices in establishment of job classifications, use of aptitude tests, and hiring and promotion practices generally. Plaintiff has not indicated that he has heretofore suffered any injury on account of such alleged practices. The Court finds that, unless the plaintiff is successful in attributing his discharge and entitlement to reinstatement, the plaintiff would not have standing personally to challenge such.practices nor be a representative party adequate to protect the interests of the class under Rule 23. If the plaintiff prevails on the discharge issue, then this case shall be continued for determination on its being maintained for further hearings as a class action; if the plaintiff is unsuccessful on the discharge issue, then the other issues raised by the plaintiff shall be dismissed without prejudice to the right of others with proper standing and interests to contest such practices by separate action.”

Thus it is clear that when the trial court dismissed the class action after determining that Smith could not recover, it proceeded on the impermissible basis that since the named plaintiff could not recover, this, per se, required a dismissal of the class action, since such a plaintiff could not be considered as a proper representative of the class. It is clear that this dismissal like that in the Huff case must be vacated and the trial court must consider the propriety of Smith’s acting as a representative of the class without regard to the determination already made that he could not recover in his own action.

The appellee contends that there is a further issue in the case that must be decided by this Court before it should remand the case to the district court. That contention is that even though the incorrect standard may have been followed by the district court in holding that under the per se rule Smith could not represent the class, there is nothing further for the' trial court to hear, since all of the matters alleged as being applicable to the class are matters that were not encompassed within the claim originally filed with the EEOC and therefore cannot be considered by the court in a class action in which they are raised for the first time. We think that the trial court properly dealt with this matter when it stated that “if the plaintiff prevails on the discharge issue, then this case shall be continued for determination on its being maintained for further hearings as a class action.” That is, the trial court recognized that if the plaintiff could otherwise be a proper representative, there would still be a matter for it to decide whether the class action was adequately pleaded and could be sustained. Since we find that the plaintiff may properly be considered as a representative to conduct the class action, then the trial court should proceed to a determination of whether the claims made adequately stated a class action within the contemplation of this Court in Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). The question is raised by the appellee which says that the only issue raised by Smith in his complaint with the EEOC was in effect an attack on the grooming policy of the company which was too narrow to permit a suit based on allegations regarding jobs, hiring and promotions.

The question of what issues may properly be encompassed within a suit filed by this plaintiff following the filing of his complaint with the EEOC must depend upon what that claim was. It stated:

“I believe that I have been discriminated against because of my race (negro) in that I was discharged.”

In Sanchez v. Standard Brands, Inc., supra, this Court raised the issue “of what standard is to be utilized in measuring the proper scope of a complaint.” It answered the question as follows:

“This circuit has never before considered this precise question. At least one district court in this circuit has addressed itself to the question, however, and in our judgment it responded to the question by giving the correct answer. In King v. Georgia Power Co., N.D.Ga.1968, 295 F.Supp. 943, Judge Smith held that the allegations in a judicial complaint filed pursuant to Title VII ‘may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission.’ 295 F.Supp. at 947. In other words, the ‘scope’ of the judicial complaint is limited to the ‘scope’ of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” 431 F.2d at 466.

Subsequently in Danner v. Phillips Petroleum Company, 447 F.2d 159 (5th Cir. 1971), we said:

“The correct rule to follow in construing EEOC charges for purposes of delineating the proper scope of a subsequent judicial inquiry is that
“the complaint in the civil action may properly encompass any . . . discrimination like or reasonably related to the allegations of the charge and growing out of such allegations.” 447 F.2d at 162.

The complaint here clearly amounts to more than a mere charge that he had been discharged improperly because he failed to comply with the grooming standard. The complaint expressly stated that his discharge was attributable to racial discrimination. We think it is for the trial court initially to determine how much of the other employment practices of the appellee may properly be shown, and for whose benefit they may be canvassed, in order to determine whether there is still pending before it a class action which meets the description: “any discrimination like or related to the allegations of the charge and growing out of such allegation.” Sanchez, supra.

The judgment of the trial court dismissing the complaint is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

      . The company’s policies with respect to this matter were expressed in the following notice of which the plaintiff was familiar:
      “Sideburns”
      “Sideburns shall be no longer than even with the lower portion of the soft lobe of the ear, and shall be light to moderate in thickness, such that there is no appreciable change in facial outline therefrom. No ‘porkchops’ will be allowed.”

        “Mustaches”

      “Mustaches are acceptable if kept short and neatly trimmed; however, ‘handlebar’ or ‘Fu Manchu’ styles are not acceptable.”


text:
    Henry BRADLEY, (Azalea V. Bradley, as the Personal Representative of Appellant Henry Bradley, for Substitution in the Place and Stead of Appellant Henry Bradley, Deceased), Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY, INC., et al., Defendants-Appellees.
    No. 71-3531.
    United States Court of Appeals, Fifth Circuit.
    Oct. 5, 1973.

      Mrs. Gabrielle K. McDonald, Houston, Tex., William L. Robinson, Jack Green-berg, Morris J. Bailer, New York City, for plaintiff-appellant.
    V. R. Burch, Jr., Houston, Tex., for Southern Pacific Co., Inc.
    James L. Highsaw, Jr., Washington, D. C., J. Curtiss Brown, Houston, Tex., for BRAC.
    Before TUTTLE, MORGAN and RO-NEY, Circuit Judges.
   TUTTLE, Circuit Judge:

The court has withheld consideration and decision of this case pending disposition by the court, sitting en banc, Brisco Huff, etc. v. N. D. Cass Company of Alabama, 468 F.2d 172 (5th Cir. 1972), modified on rehearing en banc, 485 F.2d 710 (5th Cir. 1973).

As this Court posed the question before it upon the en banc rehearing in the Huff case “the central issue in this class action is whether the trial court properly dismissed the action on the basis of a preliminary determination that the single plaintiff representing the class was not entitled to relief on the merits of his individual claim.” Although the case before us must, we think, be disposed of on a basis which would not draw this same question in issue, a decision in the en banc case that would hold in the affirmative on the question posed would have ruled our decision here.

Henry Bradley was hired by Southern Pacific Company on March 7, 1925, and from November 1, 1934, until his retirement August 1, 1969, was employed in the central mailroom of the Houston general office building in the position of mailroom porter. He filed his claim with the Equal Employment Opportunity Commission alleging that job classifications of Southern Pacific Company discriminate against blacks and that the company’s seniority system locks blacks into inferior positions. When the EEOC was unable to settle the controversy Bradley filed suit on his own behalf contending that the company’s job classifications and seniority system kept black employees at the bottom classification. The Brotherhood of Railway, Airline, and Steamship Clerks, Freight Handlers, Express and Station Employees, Local 589 and The National Brotherhood were joined as defendants in the action.

Several months after the filing of the suit Bradley retired from his job with the railroad and, thereafter, he sought to amend his petition to allege a class action on behalf of all black present or future employees of the Southern Pacific Company, charging the same alleged discriminatory acts as a basis of his complaint. The trial court, 51 F.R.D. 14, denied plaintiff’s motion to amend and this court dismissed an interlocutory appeal of that decision and the case went to trial on Bradley’s complaint that he had been diseriminatorily prejudiced by the company’s hiring practices on account of his race.

Upon the trial on the merits the trial court found that Bradley had not been prejudiced by virtue of racial discrimination by the company and further determined that Bradley should not adduce evidence as to the racial practices of the company in general as affecting other persons in the alleged class because he would not be a proper representative of the class.

The resolution of issues of fact in cases arising under Title VII of the Equal Employment Opportunity Act are to be given the same treatment on appeal as any other finding of fact by a trial court. Rule 52(a) F.R.C.P. Upon consideration of the record before the trial court, we cannot say that its findings of lack of discriminatory practices affecting the named plaintiff were clearly erroneous. The trial court’s judgment denying relief to Bradley in his personal claim must therefore be affirmed.

With respect to Bradley’s original claim that the trial court erred in not permitting his amendment to assert a class claim against Southern Pacific Company we note that this contention has now been substantially answered by the regrettable fact that Mr. Bradley has died pending the appeal. Once again, we have permitted the substitution of parties as provided by rule by the next of kin, without determining whether the action abated upon the death of the original party. It is not necessary for the court to determine this issue because the posture of the case as it comes to us is not that presented to the Court in Huff, supra. The trial court in this case did not determine that Bradley would not be a proper representative of the class solely because he could not prevail in his individual claim. On the contrary, the trial court made several findings with respect to the question whether Bradley would be such proper representative if the court were to make a determination that this was a proper class action. In this connection the court said:

“First the plaintiff here since initiation of the action has been retired. His position as an active employee is no longer the same as when the complaint was filed and the action initiated. Whether the issues which he may raise, and the relief which he may seek are common to those of present or future employees is subject to serious question. There is no showing that the claims or defenses of Bradley are typical of the claims or defenses of the class .... There is further in my mind serious doubt that he is a proper party who will fairly and adequately protect the interests of the class .... Further, I consider the petition to be too all-inclusive in undertaking to represent employees of the various other departments .... There is no reason to believe that a similar situation prevailed in the various other departments of Southern Pacific

To these findings by the trial court there must now, unfortunately, be added the fact that Bradley is no longer available to act as the representative of the class.

In light of the type of hearing conducted by the trial court, during which substantial evidence was adduced touching on the company’s policies challenged by the plaintiff we are of the view that the determination that Bradley was an inappropriate representative of the class was made in compliance with the guidelines set down by this court in the Huff case. These findings, as those on the merits of the case, are also unassailable unless this Court can determine that they are clearly erroneous. This we cannot do:

The judgment is affirmed.

      . Notice of the appellant Bradley’s death has been given during the time this ease is on appeal and his wife has, at her request, been substituted as the nominal appellant in the case. In taking the action we do here we do not necessarily reach the question whether the death of the original plaintiff abates the action completely.


author: ROSENN, Circuit Judge. ADAMS, Circuit Judge

text:
    In the Matter of PENN CENTRAL TRANSPORTATION COMPANY, Debtor. Appeal of INDIANA HARBOR BELT RAILROAD COMPANY, in No. 72-1436. Appeal of MEMBERS OF THE COMMITTEE OF INTERLINE RAILROADS et al., in No. 72-1437. Appeal of LOUISVILLE AND NASHVILLE RAILROAD COMPANY, in No. 72-1438.
    Nos. 72-1436 to 72-1438.
    United States Court of Appeals, Third Circuit.
    Argued April 26, 1973.
    Reargued Before the Court En Banc May 23, 1973.
    Decided Oct. 9, 1973.

      W. Charles Hogg, Jr., Edward C. Toole, Jr., Clark, Ladner, Fórtenbaugh & Young, Philadelphia, Pa., William R. Glendon, Frederick W. R. Pride, William J. O’Brien, II, George W. Brandt, Jr., Royall, Koegel & Wells, New York City, for appellants.
    Paul R. Duke, Philadelphia, Pa., Richard R. Bongartz, Westport Harbor, Mass., for appellees.
    Argued April 26, 1973
    Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.
    Reargued Before the Court En Banc May 23, 1973
    Before VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN and WEIS, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

The primary issues raised on this appeal are (1) whether freight and passenger revenues earned by railroad carriers for interline transportation or services but collected by Penn Central Transportation Company (Penn Central) in their behalf are held by it as trust funds, and (2) whether other interline services performed and expenses incurred by the interline carriers for Penn Central prior to its reorganization, are entitled to current payment or offset. The district court in the Penn Central reorganization held that the interline railroads (Interlines) were not entitled to current payment of their claims from the debtor or-to a declaration of an equitable lien or priority. In addition, the court enjoined them from setting off these amounts against corresponding claims of Penn Central. In reviewing this order we are compelled to examine the complex accounting procedures of our national railroad systems and apply traditional principles of equity and trust law to the operating relationships among the railroads. We affirm in part and reverse in part.

I. THE BACKGROUND

The district court has succinctly described the system of accounts of interline railroads in its Opinion and Order No. 613, 340 F.Supp. 857 (E.D.Pa. 1972) as follows:

The nation’s railroads function in many ways as a single system. For example, a shipper or receiver pays one railroad for services of carriage for the entire shipment, although the shipment may travel over many different railroads; a railroad ear may travel over the lines of many different railroads, and be used by each of them, before it again returns to the possession of the owning railroad; and a shipper whose freight may have been damaged in shipment by one of several carriers may apply to any of them for payment of his claim. The railroads have created a system of accounting and periodic settlement of accounts to facilitate this manner of operation. The accounting for various types of rail service rendered to the public or to other railroads results in “interline accounts,” and the striking of balances between the railroads with respect to these interline accounts results in “interline balances.” Each of the accounts is settled separately; there is no netting of the balances in different accounts.
1. This system of accounts is established and governed by rules promulgated, by the Association of American Railroads (“AAR”), of which the railroads in this proceeding are members. . . .

The methods of accounting and payment for interline services, however, are not controlled by statute but by industry accounting practices and rules.

The two basic categories of accounts here in issue are: (1) freight and passenger accounts; (2) other accounts, including (a) car repair accounts, (b) overcharge and loss and damage accounts, (c) per diem accounts, and (d) switching accounts. The accounting rules, described below in greater detail, differ for each of the categories. Basically, as to the first category, either the destination or the originating carrier collects the sums earned by each of the interline railroads and then allocates the appropriate amounts. As to the other accounts, the railroad that performs the service collects the amounts due it from the appropriate carrier.

Penn Central filed its petition for reorganization under section 77 of the Bankruptcy Act on June 21, 1970. In Order No. 1, approving the petition, entered on the same day, the court in paragraph 3(B) authorized Penn Central “in its discretion” to pay all interline accounts.

all interline accounts and balances owing by Debtor, including amounts in respect of revenues from freight, passenger or other traffic interchanged with other carriers, and charges for repairs of, or loss damage to, rolling stock and equipment interchanged with other carriers, all claims for injuries, death or other loss or damage to passengers and others arising from the operation of its railroad and properties, and all claims for loss, damage or delay to freight, and baggage and all claims for overcharges and for reparation, and all accounts for services, materials and supplies rendered or furnished to the Debtor, whether chargeable in the first instance to expenses, or otherwise.

On June 24, 1970, one of the interline carriers, Burlington Northern, Inc., petitioned the district court to require Penn Central to pay interline accounts and balances. At a hearing on July 1, 1970, Charles S. Hill, Penn Central’s Vice-President-Comptroller, explained that Penn Central incurs an average net liability for interline charges of $24 million per month, owing $41 million and earning $17 million. On accounts stated in June 1970 which remain unpaid and are here in issue, he said it owed approximately $32.8 million, representing services performed in April and May 1970, and earlier.

Mr. Hill also endeavored to explain Penn Central’s plans as they related to interline accounts. He described Penn Central’s cash forecast for the month of July and, when asked whether interline balances had been provided for, replied:

We have made provision on the expectation with the approval of the Court for meeting all of the interline accounts to be presented after or scheduled to be presented after June 30.

He explained that these payments would reflect services performed in June 1970 and earlier and that payment on them would begin July 23.

At the conclusion of the hearing, the court invited the parties to submit an order making mandatory the payment of charges stated “from and after” July 1, 1970. Order No. 9, drafted by the parties, was entered the same day. It ordered the payment of all interline accounts first stated or presented on or after July 1, 1970. It also specifies that it does not prejudice the right of the Interlines to claim priority for interline accounts stated prior to July 1.

A controversy subsequently arose when the Interlines attempted to set off the interline balances they owed Penn Central against amounts owed them by Penn Central. Consequently, on June 24, 1971, the trustees petitioned the court to order that the Interlines pay all balances due. The trustees alleged that the Interlines had failed to honor drafts drawn by Penn Central in total amount of $413 million representing pre-bank-ruptcy interline balances such as claims for May -1970 freight services. They contended that this violated Order No. 1, paragraph 10, providing:

All persons, firms and corporations . . . holding for the account of the Debtor deposit balances or credits be and each of them hereby are restrained and enjoined from selling, converting or otherwise disposing of such collateral, deposit balances or other credits or any part thereof, or from offsetting the same, or any thereof, against any obligation of the debtor, until further order of this court.

The Interlines defended and counterclaimed, alleging that they were entitled to offset amounts they owed Penn Central against amounts Penn Central owed them. They also alleged that Penn Central held in trust for them (a) amounts collected in their behalf for interline freight and passenger services and (b) amounts they paid on Penn Central’s behalf for overcharge and loss and damage claims. In addition, they argued, that Penn Central’s assets should be impressed with an equitable lien for such amounts. In counterclaiming, they further alleged that Order No. 9 required Penn Central to pay immediately unpaid interline balances which would become subject to draft in July and represented pre-June 20 car repairs, passenger receipts, and services and supplies.

The district court ruled in favor of the trustees and entered Order No. 613 enjoining any further setoffs. The Interlines appeal that order. They argue (1) that Penn Central holds in trust balances arising from freight and passenger services rendered by the Interlines; (2) that other interline accounts must be paid because the Interlines are compelled by law to perform these services; and (3) that Order No. 9 requires the payment of May 1970 ear repair charges and passenger balances which become subject to draft in July.

II. FREIGHT AND PASSENGER ACCOUNTS

Freight and passenger charges are collected by the originating or destination carrier for services performed by the Interlines. Under the AAR rules, instead of separately paying each carrier that participates in an interline shipment, the shipper pays all freight charges to either the originating carrier when the shipment is “prepaid” or to the destination carrier on “collect” shipments. Funds collected are deposited in the collecting carriers’ general accounts. The interline railroads make numerous collections for each other daily which are segregated and settled monthly. No interest is paid by the collecting carrier for the period it holds another carrier’s revenue.

The destination railroad is responsible for preparing and settling interline freight accounts. It prepares an “abstract” on which the appropriate freight charges are allocated to the participating carriers. It then “not later than the eighteenth of the succeeding month” sends copies of the abstract to the other carriers. The carriers may then immediately draw a draft on the destination railroad for the net balance due for the month. The destination carrier must include in the monthly accounting all charges for which the destination carrier has received a waybill, whether or not the shipper paid. The waybill is issued by the originating carrier and prescribes the movement of the shipment and charges. The charges which Penn Central has not paid in the instant case represent May 1970 freight services; Penn Central declined drafts submitted on or after June 22, 1970, of approximately $15 million for these accounts.

Passenger accounts are handled similarly. The monthly reports, however, are not required until the last day of the first month following the service. Net passenger balances also are subject to immediate draft upon receipt of the statements. Penn Central has declined drafts submitted on or after July 1, 1970, for approximately $280,000 for May traffic.

The AAR interline accounting system is in essence, therefore, a system by which one railroad collects monies owed by shippers to both itself and other railroads. The monies collected belong only in part to the collecting railroad; as to monies owed other railroads, the collecting railroad serves merely as a receiving and transmitting agent. A common sense interpretation of this system would indicate that funds collected by one railroad for and in behalf of another railroad are held in trust by the collecting railroad until the monies are transmitted. Whether the money is held in trust must be determined, however, not merely by reliance on common sense, but also by application of traditional legal doctrines. We therefore turn to the law of trusts to make that determination. In applying the law of trusts, it will be necessary to examine the manifestation of intent of the parties, not only in terms of written documents, but also in terms of the conduct of the parties. Especially important in the present case are (1) the absence of any payment of interest on monies collected during the time they are held by the collecting railroad, and (2) the commingling of the monies with general funds by the collecting railroad.

Accommodating and applying traditional common law trust principles to the unique regulatory scheme and accounting policies used by the nation’s railroads, we have concluded that transportation and freight charges, when collected, are held in trust for the Interlines. They are therefore entitled to have their monies.

A trust is defined in Restatement (Second) of Trusts § 2 (1959) as:

[A] fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person, which arises as- a result of a manifestation of an intention to create it.

The parties’ manifestation of intention ultimately controls whether or not a trust relationship exists, but failure to expressly designate the relationship as one of trust does not necessarily negate its existence. See United States v. Orsinger, 138 U.S.App.D.C. 403, 428 F.2d 1105, 1112 (1970); Del Drago v. Commissioner, 214 F.2d 478, 480 (2d Cir. 1954); State v. United States Steel Co., 12 N.J. 51, 95 A.2d 740, 744 (1953); 1 A. Scott, Law of Trusts § 2.8 (1967). When the language of the parties fails to clearly indicate their intention, it may be ascertained by other objective manifestations of intent, such as the facts and circumstances surrounding the transaction and the relationship of the parties. Stratford Financial Corp. v. Finex Corp., 367 F.2d 569, 571 (2d Cir. 1966); In re Chicago Express, Inc., 222 F.Supp. 566, 572 (S.D.N.Y.1963) ; 1 A. Scott, supra, § 12.2, at 108.

A significant fact in the instant case warranting careful consideration is the absence of any provision for the payment of interest by the collecting carrier. Although not conclusive, its absence indicates the presence of a trust relationship. See United States v. Or-singer, supra; State v. Atlantic City Electric Co., 23 N.J. 259, 128 A.2d 861, 865-866 (1957); State v. United States Steel Co., supra. A debtor-creditor relationship entails the right to use another’s money, the usual quid pro quo for which is the obligation to pay interest. See 1 A. Scott, supra, § 12.2, at 108. Conversely, the collection by Penn Central as an agent of money due and owing the other railroads suggests a trust. See, e. g., In re Chandler Insurance Agency, Inc., 92 F.Supp. 878 (D.Md. 1950); National Indemnity Co. v. American National Bank, 120 F.Supp. 713 (D.Minn.1954), aff’d, 222 F.2d 513 (8th Cir. 1955); Restatement (Second) of Trusts § 12, comment h (1959).

On the other hand, appellee trustees argue forcefully that the Interlines, by permitting Penn Central to commingle monies due them with Penn Central’s general revenues, established a debtor-creditor relationship and not a trust. While generally commingling indicates a debtor-creditor relationship and not a trust, it is only one indicium and it too is not necessarily conclusive. See National Bank v. Insurance Co., 104 U.S. 54, 68, 26 L.Ed. 693 (1881); MacBryde v. Burnett, 132 F.2d 898, 900 (4th Cir. 1942); State v. United States Steel Co., 12 N.J. 51, 95 A.2d 740, 744 (1953).

Commingling of monies has minimal significance in the extraordinary operations of interline railroads. That Penn Central is not, as a destination carrier, required by the other carriers to immediately segregate funds collected does not necessarily reflect any intention to establish a debtor-creditor relationship in the face of the unique and complex interline railroad system. Normal operation conditions with innumerable daily collections of various categories preclude practically and economically any effective daily segregation. Burlington Northern Railway alone has more than 1300 stations from which waybills are issued. This is not a simple situation of one party receiving money clearly designated as payment for services performed by another. When a carrier collects funds for another railroad, it does not iirimediately know what portion of the revenues collected is to be allocated to other carriers.

Mr. Hill, Penn Central’s Vice-President-Comptroller, testified that Penn Central settles regularly with more than 300 interline carriers. Settlement involves calculating amounts due each carrier for many different waybills sent daily to Penn Central. We recognize the enormous difficulties confronting the destination carrier to correlate each of these waybills with payments received on a monthly basis, not to mention daily basis, and to segregate funds received according to the waybills.

AAR rules merely serve to evidence the necessities of the situation. To accommodate the carriers in this exceedingly voluminous and complicated .accounting system, the AAR rules require that the statements be rendered only once each month and give the carriers 18 days to prepare the abstract of the interline freight accounts after the end of the month in which the waybill is received. The rules also indicate the difficulty in segregation of collections. They require that accounts may be drawn on the collecting carrier after the specified period even though in some instances the charges have not yet been collected from the shippers.

Each party in this controversy finds support for its position in a number of cases that specifically concerned interline accounts. Although we think none are directly in point with this case, none rebut our conclusion that the freight and transportation collections are held in trust.

In Southern Railway Company v. United States, 306 F.2d 119 (5th Cir. 1963), the court refused to accord priority to interline claims of the Southern Railway against the receiver of the Tal-lulah Falls Railway Company for amounts earned by Southern or paid by Southern to other carriers and collected by the receiver. According to the court, the freight payment first became in arrears in June 1958, and the receiver repeatedly advised Southern that it was unable to make the payments. Nonetheless, Southern made no demand for segregation of monies collected for it until May 1960. The court declined on a “laches” theory to accord the interline claims priority. It reasoned that Southern knew of the precarious financial situation of the railroad in receivership but continued to disburse its own funds to prior connecting carriers “with a full awareness that the funds were not being reimbursed by the Receiver and that, as with routine day-to-day operating charges, the Receiver was using its money, its supplies, and its facilities on which to run the Railroad.” Id. at 125.

The Interlines in this case, however, were not guilty of such folly. They began demanding payment within three days of filing the reorganization petition. Southern Railway, moreover, does contain dictum indicating that, aside from the laches problem, the court indicated the funds collected acquired a trust character at the time the accounts were presented. The court stated:

The Receive^ had a right to collect and to retain. The duty to remit was limited to the balance when and as struck in the periodic settlements. Only then did funds, rightfully collected and mingled, acquire a “trust” character.

306 F.2d at 125. Applying this statement to the case sub judice, the freight accounts for the month of May 1970 acquired a trust character when stated on June 18, 1970.

In re Chicago Express, Inc., 222 F. Supp. 566 (S.D.N.Y.1963), aff’d, 332 F. 2d 276 (2d Cir. 1964), cert, denied, 379 U.S. 879, 85 S.Ct. 146, 13 L.Ed.2d 86 (1964), involved a claim by the Pennsylvania Railroad Company for priority in the bankruptcy of a trucking company. By agreement, Pennsylvania carried trailers of the motor carrier “piggyback” on flat ears. Pennsylvania’s charges for this service depended on several variable factors, including the number of trailers transported during a given month, the weight of the trailers, and the distances traveled. The railroad's charges were not related to the trucker’s charges to its customers; the Pennsylvania made no inquiry into customer charges. The trucking company was obligated to pay within 15 days from the date of billing by Penn Central. This 15-day period was referred to by the parties in their rate agreement as a “credit accommodation” and was subject to suspension if payment was not timely. In rejecting the Pennsylvania’s argument that proceeds received by the trucker from its shippers to the extent attributable to “piggy back” hauls constituted trust funds held for Pennsylvania, the court explained,

The following are some of the facts which lead me to conclude, as did the Referee, that the relationship between the parties here was one of creditor and debtor, and not trustee and beneficiary: the absence of an agreement between the Pennsylvania and the Debtor to apportion total charges; the lack of relationship between the amount due the Pennsylvania from the Debtor and the overall charge made by the Debtor to its customer; the unconditional duty of the Debtor to pay freight charges to the Pennsylvania within fifteen days from the day of billing, and the “credit accommodation” clause in the “divisional sheet.”

222 F.Supp. at 572.

These facts in Chicago Express clearly differentiate it from the ease sub judice. Penn Central did have an arrangement with the Interlines to apportion total charges; the amounts received by the Interlines were directly related to and dependent, upon charges paid by shippers; and the amounts owed to the Interlines were payable immediately upon striking the monthly settlement.

Penn Cental argues, however, and the district court agreed, that this issue was previously settled in In Re Central Railroad of New Jersey, 273 F.Supp. 282 (D.N.J.1967), aff’d per curiam, 392 F.2d 589 (3d Cir. 1968). It is true that in that case the district court held that the New York Central Railroad Company (NYC) could not set off amounts it owed the Central Railroad of New Jersey (Central) for post-reorganization freight transportation against amounts owed by Central to it for pre-reorganization freight transportation by NYC. In reaching that result, the court concluded that the amounts collected by Central for NYC’s interline service were not trust funds. 273 F.Supp. at 288. We affirmed by a per curiam opinion. To the extent the Central Railroad decision is inconsistent with the case sub judice, it should not be followed.

The concurring opinion expresses concern because of our reliance upon established principles of trust law which may in some future case, when possibly “the traditional indicators of a trust relationship” are absent, require a contrary holding and thus might disrupt interline railroad transportation. The principal problem before us is one of accounting for funds belonging to another, readily resolvable by recognized trust and pragmatic considerations to which we have alluded. These principles are appropriate to any industry, regardless of their operational problems, and our decision supports the congressional policy encouraging interline rail transportation of freight and passengers nationwide. We perceive no need to announce an entirely new and necessarily result-oriented rule of law which is not pertinent to our present decision, merely because of the fear that the traditional approach may be restrictive in some future unstated hypothetical situation.

III. OTHER INTERLINE ACCOUNTS

The AAR accounting system and contractual obligations for the interline accounts other than those for freight and passenger carriage present different problems. In order to ascertain whether setoffs should be allowed as to Penn Central liabilities on these accounts, it is necessary to examine them seriatim.

Car Repairs. The Interlines frequently repair the equipment of other connecting carriers under the requirements of the National Safety Appliance Act, 45 U.S.C. § 13. AAR rules direct the rendition of bills for repair work no later than the last day of the following month. A draft for payment may be drawn on or after the fifteenth of the second following month.

Overcharge and Loss and Damage Accounts. When a shipper finds too much has been charged by the railroads, or that he is due payments for loss of, or damage to, the goods shipped, he makes a claim to any carrier which participated in the shipment. That carrier investigates the shipper’s claim, makes whatever payment is necessary, and then charges the responsible carrier. Accounts are stated on the 10th of each month for all shipper overcharge claims finally settled and all shipper loss and damage claims actually paid. The carrier which has paid the claim may then draw a draft on the responsible carrier on or after the 25th day of the same month.

Per Diem, Accounts. When one railroad uses the cars of another railroad, it pays that carrier a daily rental. Reports of amounts owed are forwarded to the owing carrier by the 10th day of the second month following use of the car. The net balances of these accounts are subject to immediate draft.

Switching Accounts. When one railroad switches a car for the benefit of another railroad, a switching charge is made. Such charges for cars moving in interline shipments are computed by the destination carriers and then sent to the Interlines no later than the 18th day of the month after the charges were incurred. Settlement is on the 25th day of that month.

We have concluded that amounts due on these accounts are not held in trust. These accounts do not involve collection of money by one carrier for another. These accounts merely represent the performance of services by one railroad. Although no interest was paid to Penn Central, no accounts except for the per diem balances were subject to immediate draft as were the freight and passenger accounts. Therefore, as to these accounts, the Interlines at this juncture are in exactly the same position as other suppliers of Penn Central who were unpaid for goods and services delivered prior to the filing of the reorganization petition.

The Interlines argue that these amounts must be paid immediately because the accounts “arise directly from specific statutory requirements and are absolutely essential to the operation of a national rail transportation system.” They argue that they are compelled (apparently by 49 U.S.C. § 1(4)) to permit use of their box cars by Penn Central and other carriers. Similarly, the National Safety Appliance Act, 45 U.S.C. § 13, requires that they repair Penn Central’s cars if they break down on their tracks. They argue that a destination carrier is required by law to process claims for damage to goods in transit and to advance monies to discharge or settle the claim.

Despite the legal obligation to perform the services, there is no compulsion, statutory or otherwise, as to the manner by which the services shall be paid. Arrangements for payment or credit are voluntary. Most important, however, is the recognition that no money is collected as to these accounts by Penn Central for other railroads.

The overcharge, loss, and damage accounts present a more difficult problem conceptually. Nevertheless, the essential basis for a trust does not exist. AAR practices call for one carrier to advance sums on behalf of other carriers when valid claims are made by shippers. Such advances are, in effect, a service one carrier renders for other carriers, similar to the services the Interlines perform for each other in renting and repairing cars. In a sense, if the Penn Central receives payment for a shipment, part of which eventually has to be repaid to the shipper, it could be argued that Penn Central in the interim holds the sums in trust to return to the paying carrier. However, at the time Penn Central originally received the freight payments, it had no notice that at a later date part of those sums would have to be returned. Any overcharge, loss, or damage claims at that time would be inchoate and amorphous. The relationship between the advancing carrier and the liable carrier is thus much closer to that of debtor-creditor than that of trustee-beneficiary.

Previously, we upheld the reorganization court’s authority to prevent banks from using the self-help remedy of setting off amounts owed them by Penn Central against their obligations to Penn Central. In re Penn Central Transportation Company, 453 F.2d 520 (3d Cir. 1971) (the Bank Cases). Similarly, we have upheld its authority to enjoin shippers from setting off amounts Penn Central owed them for freight loss and damage claims against amounts they owed Penn Central for freight services. In re Penn Central Transportation Company, Nos. 72-1436 to 1438 (3d Cir. 1973) (the Shipper Cases).

In the Shipper Cases, we explained: (1) Under the Interstate Commerce Act, 49 U.S.C. §§ 3(1) and 6(7), freight charges are accorded a preferred status and are not subject to the defense that the carrier owes the shipper money for other items. We noted that the only defense that can be raised to a carrier’s suit for freight charges is “that the services have been paid for, that the services were not rendered, that the services were charged under an inapplicable tariff schedule, or that the rates were unreasonable.” (2) Although a shipper nevertheless retains a right to assert a counterclaim in a carrier’s suit for freight charges, Chicago & Northwestern Railway v. Lindell, 281 U.S. 14, 50 S.Ct. 200, 74 L.Ed. 670 (1930), that right is extinguished by the intervention of a railroad reorganization proceeding. (3) Since the shippers’ claims did not have the legal status of defenses, they cannot defeat “the right of the railroad to collect absolutely all legal charges for freight services outstanding and unpaid.”

In the Bank Cases, we reasoned that permitting creditors to refuse to pay their obligations because Penn Central owed them similar amounts would place them in a preferred position over other creditors and endanger the success of the reorganization. We noted: “Even secured creditors of a railroad must submit to the risk inherent in judicial suspension of the rights they normally would have to enforce their liens against property of the debtor during the pen-dency of a reorganization proceeding. New Haven Inclusion Cases, 1970, 399 U.S. 392, 90 S.Ct. 2054, 26 L.Ed.2d 691 [1970].” 453 F.2d at 523.

In this case, we reaffirm the reorganization court’s authority to preclude set-offs.. The threat to the reorganization that we noted in the Bank Cases is present in the assertion of these setoffs. Penn Central’s choses in action for the various interline charges are entitled to the same status as the freight charges in the Shipper Cases and the deposits in the Bank Cases. The district court concluded that to permit setoffs could discriminate against many other suppliers of services and equipment and would be unfair because of the unresolved issue of the relative priorities of the claims. It also concluded that Penn Central’s cash position would be unduly injured by allowing the setoffs.

In the absence of a trust relationship, whether to permit a setoff is in the discretion of the district court. See Susquehanna Chemical Corp. v. Producers Bank & Trust Co., 174 F.2d 783, 786-787 (3d Cir. 1949). We .find no abuse of discretion in the circumstances of this case.

For the foregoing reasons, the interline railroads may not set off their claims, except for freight and passenger accounts, against amounts owed by them to Penn Central. The freight and passenger claims are entitled to different treatment because of their trust character and the Interlines’ resulting right, to payment regardless of the reorganization.

IV. THE EFFECT OF ORDER NO. 9

Order No. 9 requires Penn Central to pay all interline accounts “first stated or presented for settlement on or after [July 1, 1970].” Appellants argue that' Penn Central’s failure to pay for May 1970 car repairs, which became payable on or after July 1, violates the order. The district court rejecting appellants’ argument reasoned:

This interpretation equates presentation of a draft and statement of the account; more importantly, it overlooks the word “first” in the Order. Accounts which were either stated or presented prior to the date of Order No. 9 were not required by that Order to be paid, and thus respondent’s contentions with respect to the Car Repair and Passenger accounts are clearly without merit.

We agree with the district court.

Appellants argue that the parties drafted the language of the order and that the testimony at the hearing prior to its issuance demonstrates that they intended it to require payment of all sums that became payable in July 1970, not just those stated for the first time in July. They note that Penn Central's Comptroller, Charles Hill, in explaining Penn Central’s intention to pay “interline accounts to be presented after or scheduled to be presented after June 30,” presented to the court an exhibit showing the amounts Penn Central planned to pay in July. Specifically included were drafts in the amount of $1 million for ear repairs, which became subject to draft on July 15 under the AAR rules. Moreover, they note, Mr. Hill stated:

The initial indication of actual disbursements begins with July 23 on revenue accounts, on July 13 on mileage accounts, and intermediate dates on car repairs.

The accounts that became subject to draft on July 15 would, under the AAR rules, represent May car repairs. Appellants also note that their counsel stated to the district court that if the order they proposed to the court in their motion of June 24, 1970, i. e., that Penn Central be required to pay all interline balances, were not granted that they would be satisfied with an order which “embraces those accounts and balances which Penn Central contemplates paying in July.”

From this course of events, we conclude that the Interlines undoubtedly favored payment of interline accounts in full and that they proposed as a less drastic remedy that Penn Central be bound by its projections for July. Unfortunately, the step we cannot take is to conclude that the district court accepted either of these positions. The district court, in inviting counsel to submit an order to it, stated that it was adopting the projections:

The order which is being entered is not to be taken as either approval or disapproval of the projections set forth in these documents or of any of the projected expenditures.

The district court explained that it desired an order separating pre-petition interline charges from post-petition interline charges. It concluded that “charges stated from and after today would represent the post-petition interline balances” and specifically asked counsel to prepare an order providing for their payment.

We think the court’s oral statement pertaining to its order indicates that Order No. 9 did not contemplate the payment of all accounts that would become due for payment in July. The phrase “charges stated” is most reasonably interpreted as meaning charges first reported in the month of July. It strains the language unduly to interpret it to mean charges which have been previously reported but for which payment becomes due in July. The stark language in the actual order, i. e., “stated or presented,” could arguably be interpreted to encompass charges for which the drafts are presented in July, but we think the district court’s statement to the parties as to the nature of the order he desired to enter precludes this interpretation.

We also believe that the district court’s interpretation of its own order in the decision appealed from is entitled to great weight. We find no compelling basis to hold otherwise. We have already found that the parties’ objections to the district court’s entry of this order are without merit. They can petition the district court again if they believe that it should exercise its discretion to. modify the order. We also note that the court in entering Order No. 9 provided explicitly that it would not prejudice the rights of the Interlines to claim a priority at a later time.

The order of the district court will be affirmed except as it operates to preclude the interline carriers from offsetting amounts they owe Penn Central against amounts Penn Central owes them for freight and passenger services. The Interlines shall be entitled to offset any amounts Penn Central owes them for freight and passenger services as of the date of this opinion, and Penn Central will be obligated to pay any remaining balances due for these accounts. The case will be remanded to the district court for further proceedings .consistent with this opinion.

ADAMS, Circuit Judge

(concurring) :

Though I concur in the result reached in this case, I am troubled by the heavy reliance by the majority upon the timeworn tenets of trust law in dealing with the issues presented here. Inasmuch as this appeal involves the functioning of the national transportation network, closer attention to pragmatic factors and to Congressional pronouncements would appear to be warranted.

Congress has long been concerned with the establishment and maintenance of a viable national rail system. In part, this concern is manifested in legislation tailored to encourage and facilitate “interline” fail transportation of freight and passengers. To resort, as the majority does, primarily to “traditional common law trust principles” to resolve this case is to overlook the legislative policy embedded in these pertinent statutes. Moreover, the majority’s stance fails to address the practical problems confronting the railroad industry today. In this time of proliferating difficulty for the railroads, such an approach does little to advance the enterprise of “developing, coordinating, and preserving a national transportation system.”

Section 1(4) of the Interstate Commerce Act makes it the duty of each regulated rail carrier to participate in the interstate transportation of freight and passengers. In addition, it requires that the carriers “establish reasonable through routes with other such carriers, and just and reasonable rates, fares [and] charges . . . applicable thereto.” Carriers participating in through routes are directed to “provide reasonable facilities for operating such routes and ... to make reasonable rules and regulations with respect to their operation . . . .’’If connecting carriers fail to create voluntary through routes, section 15(3) of the Act empowers the Interstate Commerce Commission, under certain conditions, to order their establishment.

The policy underlying this statutory arrangement is not difficult to discern. “Interline,” long-distance rail carriage over a through route obviates much of the need for duplicative, parallel rail lines. Additionally, through-route service precludes the inconvenience that would result if a shipper had to make separate arrangements with each interconnecting carrier for a long-distance haul. A vigorous and efficient interline rail network thus assures that, as the court below stated, “[t]he nation’s railroads function in many ways as a single system.” The sections of the Interstate Commerce Act discussed above seek to foster and preserve this unitary rail scheme.

There is no statutory compulsion for interconnecting rail carriers to utilize any particular method of collecting fares and freight charges for a through-routed shipment. But, as a practical matter, only one such method is feasible. That is for a single carrier — either the originating or the' destination carrier — to collect the entire fare, and then remit to the interline carriers their pro rata portions. This arrangement is apparently subscribed to by the entire industry, and is incorporated in the rules of the Association of American Railroads. A departure from this procedure — for example, insistence by each interline carrier upon immediate payment by the shipper —might well undermine the entire system of interline rail transportation. At a minimum, it would greatly impede the smooth and efficient functioning of the through-route network.

At least one other court has concluded that, since practical considerations militate so strongly in favor of collection by a single carrier, that carrier should be deemed a “trustee” for the interline railroads. Such a conclusion, when transposed to the scenario of a railroad reorganization case, requires that the interline carriers be granted a superior status vis-a-vis the trustee-railroad’s other creditors. Conveniently, there are present in this case enough of the common indicia of a fiduciary relationship to support the majority’s conclusion that here, too, the Penn Central holds the interlines’ freight and passenger revenues in “trust.” Consequently, and I believe correctly, the majority grants the interlines the preferred position that “beneficiary” status merits under the relevant reorganization principles.

What the majority does not appear to consider, and what I suggest may be of critical importance, is the possibility that, in another case, the absence of any of the traditional indicators of a trust relationship would, under their view, require a contrary holding. Exclusive reliance upon the precepts and terminology of trust law would seem, in such a ease, to dictate that a court deny the interlines any priority over other creditors. Stripped of that priority, the interlines might well insist upon immediate payment from shippers for each segment of a long-distance haul. Such insistence, with the attendant dislocation of the through-route system, would be especially likely where, as here, the originating or destination carrier was on the vérge of going into reorganization.

The disruption of interline transportation that might result from application of the majority’s ratio decidendi to another case would seriously thwart the policy expressed in the Interstate Commerce Act. Moreover, it would tend to impede promotion of an “adequate, economical, and efficient” transportation system, thus hampering effectuation of our National Transportation Policy. The majority does not grapple with these considerations. Its approach, while leading to a salutary result in the case sub judice, overlooks these broader ramifications by focusing too narrowly upon the situation at hand.

Rather than merely invoke the hoary principles of trust law to settle this case, I would treat the problem of interline freight and passenger accounts as a sui generis matter. Having perceived Congress’ interest in creating and maintaining a viable interline rail system, it would be appropriate to hold that, even in the absence of anything formally resembling a “trust,” the interlines are entitled to a preferred position with respect to freight and passenger revenues owed them by a railroad in reorganization.

This is not to suggest that venerated legal doctrines can never provide guidance to a court confronted with novel questions of transportation law. But where Congress has, by statute and articulation of a national policy, prompted the judiciary to consider the effects of its decisions upon the nation’s entire transportation system, there does not seem to be justification for exclusive reliance upon the narrow principles of private law. The demands in treating a matter of national transportation policy are best met by a candid and informed weighing of competing interests, within the compass of the judicial process, rather than by use of dogmas or labels that may prove too inflexible to solve the non-Euclidean problems that are presented.

The majority also concludes that, unlike freight and passenger revenues, other interline monies — those relating to ear repairs, overcharges, freight loss and damage, per diem car rentals, and switching charges — are not held in “trust.” Since this holding would not appear to work any substantial disruption of the interline rail schema, I concur in this aspect of the result as well.

WEIS, Circuit Judge, joins in this concurring opinion.

      . An “interline railroad” is a railroad common carrier which cooperates with other railroads in the transportation of passengers or property over their lines, as required of all railroads engaging in interstate commerce by the Interstate Commerce Act, 49 U.S.C. § 1(4). The act provides in relevant part:
      It shall be the duty of every common carrier subject to this chapter to provide and furnish transportation upon reasonable request therefor, and to establish reasonable through routes with other such carriers, and just and reasonable rates, fares, charges, and classifications applicable thereto; . .

        See, e. g., Southern Ry. Co. v. Flournoy, 301 F.2d 847, 854 (4th Cir. 1962).

      . The order stated that Penn Central was authorized to pay

      . The “interline carriers” involved in this appeal are the 39 railroad systems set forth in the caption of this opinion. All appellants except the Indiana Harbor Belt Railway Company and the Louisville and Nashville Railroad Company intervened in the proceeding below as the Committee of Interline Railroads. The Committee includes 40 additional railroads not here involved.

      . The relevant portion of Order No. 9 states:
      And Now, to wit: this First day of July, 1970, it is Hereby Ordered that paragraph 3 of the Order of June 21, 1970, is hereby Amended so as to direct and require the Debtor (in lieu of authorizing the Debtor in its discretion) to pay to other railroads freight charges and divisions, passenger or ticket charges and divisions, per diem, mileage, and per diem claims, car repairs, trailer rentals and all other interline accounts and balances first stated or presented and due to be stated or presented for settlement on or after the date of this Order in accordance with the now existing rules and procedures of the Association of American Railroads and otherwise in accordance with the rail carriers’ ordinary business practice. [Emphasis supplied.]

      . The parties have indicated that these amounts are primarily May 1970 freight and passenger balances.

      . If the settling carrier is unable to forward the interline freight summary in time to reach the other carriers by the twentieth of the month, upon request it must notify the carriers by prepaid telegram. Thus, freight balances are subject to draft, at the latest, on the twentieth,

      . The affidavit of Assistant Vice President Wigstrom of Burlington Northern, Inc., asserted :
      [A]t more than 1300 stations must transmit to the Company’s general offices (through three regional customer accounting centers) the -waybill for each shipment terminated at their respective stations. The waybill data for every terminated interline shipment must, as noted by Mr. Bergey, be abstracted in order to prepare the interline settlement statement. The settlement of interline accounts cannot be achieved either practically or economically among the nation’s railroads on anything approaching a daily basis.

      . The 18-day period, in addition to facilitating accounting, preserves the fairness of the nonsegregation because most of the charges have been collected by the time of the drafting date.

      . The Interlines rely on Morgenthau v. Sugar Land Railway Company, 83 F.2d 72, 74 (5th Cir. 1936) ; Baltimore & Ohio R.R. Co. v. Thompson, 80 F.Supp. 570, 586 (E.D.Mo. 1948), aff’d, 180 F.2d 416 (8th Cir. 1950) ; and Atlantic Coast Line Railroad v. Pennsylvania Railroad Company, 12 F.Supp. 720 (E.D.Pa.1935), to support their contention that the passenger and freight account monies were held in trust. Although there is dicta in each of those cases indicating that such funds collected by an interline carrier are held in trust, we do not rely extensively on that dicta, because the issue of whether or not a trust existed was not squarely presented to the court in any of the cases.

      . The settlement procedure in Southern was similar to that in this case. The court described it as follows:
      The two carriers had a junction settlement arrangement under which freight interchanged was re-billed at Cornelia. On traffic moving inbound to the Tallulah Falls, Southern paid all prior participating carriers their divisions or proportions of the revenue for traffic handled over their lines. For these advances as well as for its own division or proportions of the inbound freight charges, Southern looked to the Receiver for reimbursement and payment. As to such inbound shipments, the Receiver would, and did, collect the freights from consignees. On movements out-bound from the Tallulah Falls, the destination carrier collected the freight charges and paid over to Southern the share due it as well as the Tallulah Falls. The settlement arrangement called for adjustment four times a month. On striking the balance, payment was to be made by, or to, the Receiver or Southern as the case might be.
      306 F.2d at 123.

      . The district court properly reasoned :
      While it is true that the interline railroads are required, for example, to accept from each other and to transport freight and passenger traffic and to correct unsafe conditions found on each other’s cars, there is no requirement that interline railroads extend credit to each other. In fact, in proceedings leading to the entry of Order No. 9, the interline railroads detailed measures that could be taken to put a railroad, that could not be counted on to make its interline balance settlements, on a “cash” basis. E. g., Tr. 23-26; Memorandum of Burlington Northern, Inc. (Document No. 18) at 5. Moreover, it is apparent that the interline railroads’ description of such measures did not exhaust the list of measures that could be used to put a railroad on a cash payment rather than a credit basis. See Southern Ry. Co. v. Flournoy, 301 F.2d 847, 855-856 (4th Cir. 1962) (security deposit; creditor railroads’ control of car movements).

      . Appellants also make this argument as to passenger accounts, but since we have concluded that the passenger receipts are held in trust, we need not specifically discuss their status under Order No. 9. In the district court, appellants also asserted that unpaid miscellaneous bills were required to be paid by Order No. 9, but they do not press this contention on appeal.

      . The court stated :
      From the evidence presented, it seems quite apparent that the post-petition interline charges, that is to say the charges stated from and after today would represent the post-petition inter-line balances, can be paid without unduly jeopardizing any of the other essential payments that the railroad must make.

        I therefore will enter an order and will invite counsel to submit the written order for entry which will make mandatory the payment of post-petition inter-line balances until further order of this Court.

      . See, e. g., sections 1(4), 15(3), 15(4) and 15(6) of the Interstate Commerce Act, 49 U.S.C. §§ 1(4), 15(3), 15(4) and 15(6).

      . The National Transportation Policy, 54 Stat. 899, 49 U.S.C. preceding § 1.

      . 49 U.S.C. § 1(4).

      . A “through route” is an arrangement between interconnecting railroads for the continuous carriage of goods or passengers from the originating point on the line of one carrier to a destination on the line of another. See St. Louis Southwestern Ry. Co. v. United States, 245 U.S. 136, 139, 38 S.Ct. 49, 62 L.Ed. 199 (1917).

      . 49 U.S.C. § 15(3).

      . See generally Thompson v. United States, 343 U.S. 549, 72 S.Ct. 978, 96 L.Ed. 1134 (1952). Section 15(4) of the Act, 49 U.S.C. § 15(4), limits the power of the Commission to order a through route where to do so would force a railroad to “short haul” itself.

      . Atlantic Coast Line R. Co. v. Pennsylvania R. Co., 12 F.Supp. 720, 722-723 (E.D.Pa. 1935). In a related case, the same court described a typical interline shipment:
      “[t]he service performed was a haul of citrous fruits from Florida to delivery points in the Northern States. A number of railroads, which we shall call five, participated in order in the carriage, making of it one continuous haul .... The last link at the delivery end was the Pennsylvania Railroad. Because of a convenience so great as to be imperative, the Pennsylvania Company collected for the whole haul.” Atlantic Coast Line R. Co. v. Pennsylvania R. Co., 12 F.Supp. at 726 (E.D.Pa.1935).

      . Considering the turbulent, changing situation in the railroad industry, this does not seem a remote possibility.

      . See Note 2, supra, and accompanying text.

      . Cf. New Haven Inclusion Cases, 399 U.S. 392, 431, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970).


author: BRIGHT, Circuit Judge.

text:
    Otis H. REED, Jr., Appellant, v. Terrell Don HUTTO, Commissioner of Correction, State of Arkansas, A. L. Lockhart, Superintendent, etc., Appellees.
    No. 73-1169.
    United States Court of Appeals, Eighth Circuit. ■
    Oct. 23, 1973.
    Terry L. Mathews, Little Rock, Ark., for appellant.
    Jim Guy Tucker, Atty. 'Gen., and Ralph C. Hamner, Deputy Atty. Gen., Little Rock, Ark., for appellees.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   BRIGHT, Circuit Judge.

Otis H. Reed, Jr., an inmate of the Arkansas state prison system, brought this action pro se on February 5, 1973, against defendants as Arkansas prison officials for deprivation of his civil rights under 42 U.S.C. § 1983. He alleges, among other things, that during his incarceration he was forced to participate in homosexual acts by an “inmate trusty guard,” who was under the supervision of prison officials, and that these prison officials refused plaintiff protective custody or any other assistance despite warnings of the trusty’s propensities for engaging in sexually deviate acts. Plaintiff alleges that to prevent further homosexual assaults he killed this guard on November 8, 1969. Plaintiff sought damages in the sum of $500,000. The district court dismissed the action as untimely brought. For reasons stated below, we affirm.

In his initial complaint, plaintiff named Terrell Don Hutto, the present Arkansas Commissioner of the Department of Correction, and A. L. Lockhart, Superintendent of the Cummins Prison, as defendants. The trial court summarily dismissed the case on two grounds: (1) that the complaint on its face showed that the claim was barred by the three-year applicable state statute of limitations, and (2) that the named defendants, Commissioner Hutto and Superintendent Lockhart, did not serve as prison officials as early as 1969. Following this dismissal, plaintiff-Reed sought to substitute the former Commissioner of Correction, C. Robert Sarver, and the former Cummins Prison Farm Superintendent, Ralph Roberts, as defendants. The trial court adhered to its dismissal on the alternate ground that the action- had not been brought in proper time.

We authorized this appeal in forma pauperis, see F.R.A.P. Rule 24a, and appointed counsel for Reed, because the case raises an important question relating to the application of state statutes of limitations to actions for damages under the Civil Rights Act.

Since the statute under which this action was brought, 42 U.S.C. § 1983, does not provide for any period of limitation for the bringing of an action, we must look to the most analogous state statute of limitations. O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914); Johnson v. Dailey, 479 F.2d 86 (8th Cir. 1973); Savage v. United States, 450 F.2d 449 (8th Cir. 1971), cert, denied, 405 U.S. 1043, 93 S.Ct. 2759, 37 L.Ed.2d 158 (1972); Green v. McDonnell Douglas Corporation, 463 F.2d 337, 340 (8th Cir. 1972), vacated in part on other grounds, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668; Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1970). As we said in Savage, “We are to select that [the state] limitation provision which seems best to effectuate the federal policy underpinning the claims now before us. 450 F.2d at 451.

Conceivably, any one of three provisions of the Arkansas statute of limitations could apply here. Ark.Stat.Ann. § 37 — 201 requires an action for assault and battery to be commenced within one year of its accrual; § 37-206 provides a three-year limitation for, among other things, all actions “founded on any contract or liability, expressed or implied;” and § 37-213 provides for a five-year limitation for all actions “not included in the foregoing provisions.”

In Savage v. United States, 450 F.2d 449 (8th Cir. 1971), cert, denied, 405 U.S. 1043, 93 S.Ct. 2759, 37 L.Ed.2d 158 (1972), and Johnson v. Dailey, 479 F.2d 86 (8th Cir. 1973), we focused upon the character of the conduct underlying the civil rights violation in order to determine the most appropriate statute of limitations. Thus, in Savage, in response to a complaint alleging that various state and , federal officials had conspired to obtain a criminal indictment of the plaintiff by putting erroneous and defamatory material before the Grand Jury, we held applicable the Minnesota two-year limitation for defamation and malicious prosecution. In Johnson, the majority of the panel applied Iowa’s two-year statute of limitations for malicious prosecution to a civil rights complaint alleging that a state prosecutor obtained a criminal conviction for murder against plaintiff, later set aside on habeas corpus, based on the wilful use of falsified evidence.

We are agreed here that the one-year statute for assault does not apply since the gist of the complaint is not the assault itself, but rather the negligence of prison administrators in failing to carry out their responsibility to properly supervise a prison, resulting in one prisoner being injured by another. See Brown v. United States, 342 F.Supp. 987, 992-993 (E.D.Ark.1972). Thus, the complaint may be viewed as an analogue to an action under state law for negligence. Under this theory, Savage and Johnson would require the invocation of the three-year limitation specified by Ark.Stat.Ann. § 37-206, since this statute has been held to apply generally to tort actions in Arkansas. See, White v. McBride, 245 Ark. 594, 434 S.W.2d 79, 80 (1968), citing with approval Air Leases, Inc. v. Baker, 167 F.Supp. 145, 148 (W.D.Ark.1958); Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503, 504 (1934); see also Schenebeck v. Sterling Drug, Inc., 428 F.2d 919, 924 (8th Cir. 1970).

That approach, however, is inconsistent with the rationale in our earlier case of Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1970). See Johnson v. Dailey, 479 F.2d 86, 89 (8th Cir. 1973) (Bright, J., dissenting). In Glasscoe, which also was an action for deprivation of civil rights occurring in Arkansas, we observed that, although elements of a common law assault and battery may underpin an action against police officers who allegedly deprived plaintiff of his civil rights, the statute of limitations applicable to common law assaults and batteries did not limit the period for commencing a civil rights action under § 1983. In Glasscoe, we focused not on the assault but on the statutory derivation of the civil rights claim as creating a new and different remedy even though the same act might constitute both a state tort and the deprivation of a constitutional right. We found it unnecessary to decide as between the three-year limitation for actions “founded on any contract or liability” and the five-year general statute of limitations since that action had been brought within three years.

In the present case, no matter whether we follow the rationale of Savage and Johnson or that of Glasscoe, the action is barred by the three-year statute of limitations. As we have already noted, focusing on the underlying negligence of the prison officials requires the application of the three-year statute of limitations. But the same result follows under the Glasscoe rationale as well, since an action to enforce a statutory right according to Arkansas case law must be brought within three years.

Arkansas has construed its three-year limitation for actions “founded on any contract or liability” to cover actions based upon a liability created by statute. McDonald v. Mueller, 123 Ark. 226, 183 S.W. 751 (1916) ; Zimmerman v. Western & Southern Fire Ins. Co., 121 Ark. 408, 181 S.W. 283 (1915); Nebraska National Bank v. Walsh, 68 Ark. 433, 59 S.W. 952 (1900). See also Air Leases, Inc. v. Baker, supra, 167 F.Supp. at 148. Those cases concerned personal liability of corporate officers or directors to perform statutory duties assigned to their offices. In that sense, as noted by appellant, the cases can be distinguished from the present action for vindication of civil rights. But those causes and the present one are similarly based upon a remedy provided for by statute. We deem this factor controlling. Compare Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (outlining the broad scope of the statutory remedy afforded under 42 U.S.C. § 1983) with Nebraska National Bank v. Walsh, supra, 59 S.W. at 953.

In Nebraska National Bank, the Arkansas court characterized the corporate liability statute as “not penal, but highly remedial,” and held that the two-year limitation on an action for a penalty did not apply. Instead, the court applied the three-year statute for an action “founded upon any contract or liability, expressed or implied, not in writing.” This three-year statute of limitations provided by Ark.Stat.Ann. § 37-206 would appear to be the one that Arkansas would enforce for all remedial causes of action granted by statute.

Here Reed’s action accrued no later than November 8, 1969. He filed his complaint in the present action more than three years and two months later. Accordingly, we hold the action barred by the applicable Arkansas three-year statute of limitations and affirm the district court.

Appellant’s contention that the Arkansas general five-year statute of limitations, Ark.Stat.Ann. § 37-213, should be applied rests on the argument that some federal courts have applied a general statute of limitations to an action brought under the Civil Rights Acts. Appellant cites Crawford v. Zeitler, 326 F.2d 119 (6th Cir. 1964), Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958), and Contract Buyers League v. F & F Investment, 300 F.Supp. 210 (N.D.Ill. 1969) , aff’d, 420 F.2d 1191 (7th Cir. 1970). But in these cases the only choice lay between a statute of limitations for the state common law type of action suggested by the allegations of the civil rights complaint and the state’s general statute of limitations. These courts were given no choice of a statute of limitations applicable to remedial causes of action created by a statute as in the present ease. The application of the general limitations period in these cases arose from a finding that a right of action based upon a statute is an action not provided for within the state statutes of limitations describing particular kinds of legal actions. See Wakat v. Harlib, supra, 253 F.2d at 62-63.

Thus we conclude that, whether the appropriate precedent be Glasscoe or Savage and Johnson, the result is the same and the Arkansas three-year limitation applies to the action. We find it unnecessary in this ease to resolye the differences in approach to the appropriate state statute of limitations as exemplified by Glasscoe and Savage. Such a difference exists generally in the federal appellate courts.

We express our appreciation for the able assistance rendered by appellant’s court-appointed counsel who has served without any compensation.

Affirmed.

      . See also Ark.Stat.Ann. § 27-901 which provides in part:
      For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and such action may be brought by the person injured * * * in the same manner and with like effect in all respects as actions founded on contracts.
      Although a five-year statute of limitations exists for written contracts, Ark.Stat.Ann. § 37-209, the provisions of § 37-206. which apply to oral contracts have been held to control § 27-901. See Smith v. Missouri Pacific R. Co., 175 Ark. 626. 1 S.W.2d 48, 49 (1928).

      . See Annot., 98 A.L.R.2d 1160 (1964) Note, “A Limitation on Actions for Deprivation of Federal Rights,” 68 Colum.L.Rev. 763 (1968).
      Third Circuit decisions and some decisions in the Fifth, Sixth, and Seventh Circuits have applied the statute of limitations of the underlying tort as in Savage. THIRD CIRCUIT: Howell v. Cataldi, 464 F.2d 272 (1972) ; Thomas v. Howard, 455 F.2d 228 (1972) ; Orlando v. Baltimore & Ohio Ry., 455 F.2d 972 (1972) ; Hileman v. Knable, 391 F.2d 596 (1968) ; Hughes v. Smith, 389 F.2d 42 (1968) ; Henig v. Odorioso, 385 F.2d 491 (1967), cert, denied, 390 U.S. 1016, 88 S.Ct. 1269, 20 L.Ed.2d 166 (1968). FIFTH CIRCUIT: Shank v. Spruill, 406 F.2d 756 (1969) ; Beard v. Stephens, 372 F.2d 685 (1967). SIXTH CIRCUIT: Madison v. Wood, 410 F.2d 564 (1969) ; Mulligan v. Schlachter, 389 F.2d 231 (1968) ; Mohler v. Miller, 235 F.2d 153 (1956). SEVENTH CIRCUIT: Jones v. Jones, 410 F.2d 365 (1969), cert, denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970).
      Second, Ninth, and Tenth Circuit decisions and the other Fifth, Sixth, and Seventh Circuit Cases hold that actions under § ,1983, as in Glasscoe, are governed by state statutes of limitations for state actions created by statute or the general limitations period of the state. SECOND CIRCUIT: Rosenberg v. Martin, 478 F.2d 520 (1973) ; Romer v. Leary, 425 F.2d 186 (1970) ; Swan v. Board of Higher Education, 319 F.2d 56 (1963). FIFTH CIRCUIT: White v. Padgett, 475 F.2d 79 (1973) ; Franklin v. City of Marks, 439 F.2d 665 (1971) ; Nevels v. Wilson, 423 F.2d 691 (1970). SIXTH CIRCUIT: Garner v. Stephens, 460 F.2d 1144 (1972) ; Crawford v. Zeitler, 326 F.2d 119 (1964). SEVENTH CIRCUIT: Duncan v. Nelson, 466 F.2d 939, cert, denied, 409 U.S. 894, 93 S.Ct. 175, 34 L.Ed.2d 130 (1972) ; Rinehart v. Locke, 454 F.2d 313 (1971) ; Weber v. Consumers Digest, Inc., 440 F.2d 729 (1971) ; Wakat v. Harlib, 253 F.2d 59 (1958). NINTH CIRCUIT: Willis v. Reddin, 418 F.2d 702 (1969) ; Smith v. Cremins, 308 F.2d 187 (1962). TENTH CIRCUIT: Crosswhite v. Brown, 424 F.2d 495 (1970) ; Wilson v. Hinman, 172 F.2d 914 (1949).
      Two cases decided by the Fourth Circuit fall into a special category since they are based on the peculiarities of the Virginia statutes of limitation. See Allen v. Gifford, 462 F.2d 615 (4th Cir.), cert, denied, 409 U.S. 876, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972) ; Almond v. Kent, 459 F.2d 200 (4th Cir. 1972).