author: IRVING R. KAUFMAN, Chief Judge:

text:
    SECURITIES INVESTOR PROTECTION CORPORATION, Plaintiff-Appellant, v. CHARISMA SECURITIES CORPORATION, Defendant, Edwin L. Gasperini, Petitioner-Appellant, Gasperini & Savage, Petitioner-Appellant.
    Nos. 119, 120, Dockets 74-1511, 74-1564.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 4, 1974.
    Decided Nov. 21, 1974.

      Theodore H. Foeht, Gen. Counsel, Securities Investor Protection Corp., Washington, D. C. (Wilfred R. Caron, Michael E. Don and Robert G. Richardson, Washington, D. C., on the brief), for Securities Investor Protection Corp.
    Edwin L. Gasperini, New York City (Gasperini & Savage, New York City, on the brief), pro se and for Gasperini & Savage.
    Before KAUFMAN, Chief Judge, and ANDERSON and MULLIGAN, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

Of the many appeals we have heard regarding awards of trustee and counsel fees in bankruptcy proceedings, this is the first to arise in the context of the Securities Investor Protection Act of 1970 [SIPA], 15 U.S.C. §§ 78aaa et seq. (1970). The Act provides a scheme for the orderly liquidation of failed securities brokerage firms and for the financial protection of their customers. Its main feature is a fund of some $150 million obtained from assessments levied upon all brokerage firms. The fund, administered by Securities Investor Protection Corporation [SIPC], is used to pay the expenses of liquidation and to satisfy customers’ claims up to $50,000 when other assets are not available.

I.

The facts in this case are fully set out in the opinion below, 371 F.Supp. 894 (S.D.N.Y.1974), and in an earlier opinion dealing with the award of interim fees, 352 F.Supp. 302 (S.D.N.Y.1972), and require only brief restatement. On March 9, 1972, on motion of SIPC, the District Court made the statutory finding that Charisma Securities Corporation needed the protection of SIPA, since it was in danger of failing to meet its obligations to its customers and was violating certain SEC rules relating to financial security. See 15 U.S.C. § 78eee(a), (b). SIPC recommended Edwin L. Gasperini, a respected member of the bar, as trustee and his firm, Gasperini & Savage, as counsel. The court followed these recommendations.

The liquidation proceeded apace. Gasperini engaged accountants to analyze Charisma’s records which were, to put it mildly, in a state of disarray. At his request, SIPC paid the accountants $13,-773.75. Gasperini also secured necessary court orders and forwarded required notices to possible claimants. Of 37 asserted claims, 24 were allowed in whole or in part (a total of $42,206.62), and 13 (totalling $92,280.37) were disallowed. Gasperini also attempted to marshal Charisma’s assets, only to find the cupboard was almost bare. His firm, Gasperini & Savage, assisted him throughout.

Although SIPC recommended awards of $5000 to Gasperini and $25,000 to Gasperini & Savage, the district court allowed only one-third the suggested total — $3500 to Gasperini and $6500 to his counsel. The court viewed the liquidation as quite routine, involving few and simple claims, no assets, and little work that should have been performed by lawyers as opposed to accountants or nonprofessionals.

Gasperini and his firm were, of course, displeased with these allowances and hastened to appeal, as did SIPC. Uncertain whether appeal was available as of right, they also filed applications for leave to appeal, which we granted. Although the interest in these fee allowances was entirely on the side of Gasperini, his counsel, and SIPC, and no one appeared to defend Judge Pollack’s decision, we believe, nevertheless, that the judgment below withstands the attacks directed at it, and affirm.

II.

It is clear that the standards governing SIPA liquidations are established by § 78fff(c)(1):

Except as inconsistent with the provisions of this chapter and except that in no event shall a plan of reorganization be formulated, a liquidation proceeding shall be conducted in accordance with . . . provisions of chapter X [of the Bankruptcy Act]

Chapter X provides that a judge is required to scrutinize the reasonableness of fee awards. Section 241, 11 U.S.C. § 641, states that “The judge may allow . . . reasonable compensation for services rendered . by the trustee and other officers, and the attorneys for any of them . . ..” Until these proceedings, there was no doubt that § 241 was made applicable to SIPA by § 78fff (c)(1). See Guttman, Broker-Dealer Bankruptcies, 48 N.Y.U.L.Rev. 887, 934 (1973). (“A trustee and his attorney, once appointed, become officers of the court like any other bankruptcy trustee and his attorney. Their compensation is determined by the court, not SIPC.”)

SIPC maintains, however, that § 241 has limited applicability to so-called “no-asset” cases, in which SIPC pays the fee. The purpose of judicial scrutiny under § 241, SIPC argues, is twofold — the protection of creditors and the reorganized corporation from the award of excessive fees, and the prevention of the abuse of the judicial system that award of such fees would imply. Only the second of these considerations would apply in SIPA “no-asset” cases, since no creditors are affected when SIPC pays the fee, and reorganizations are prohibited. Thus, SIPC contends, the district courts should not disapprove SlPC-recommended fee awards in “no-asset” cases unless they are so excessive and outrageous that the integrity of the judicial system is at stake.

Even on its face, this argument is flawed. It would suggest that a higher fee might be and should appropriately be paid in a “no-asset” case, in which SIPC pays the fee, than in a liquidation involving substantial assets, in which the fee would be borne by a bankrupt’s creditors. In addition, SIPC fails to give any sound reasons for adopting a policy whereby the brokerage community, which finances the fund, is deserving of less judicial protection from award of excessive fees than are creditors in chapter X proceedings.

Of greater significance is the failure by SIPC to establish that Congress had the slightest intention to limit the judicial scrutiny of fee awards to trustees and their counsel under SIPA. Indeed the evidence on this point, though sparse, almost uniformly suggests that the district court is to play a fairly active role in SIPA liquidations. “In general, the court in which an application is filed is vested with the powers of a court in a chapter X reorganization. . ” H.R.Rep. No. 91-1613, 91st Cong., 2d Sess. 10 (1970), reprinted in U.S.Code Cong. & Admin.News, pp. 5254, 5264 (1970); S.Rep. No. 91-1218, 91st Cong., 2d Sess. 12 (1970). The district court has exclusive jurisdiction over the debtor and his property, can stay other proceedings against the debtor, 15 U.S.C. § 78eee(b)(2), and alone can authorize payment of claims by the trustee.. Id. § 78fff(g). The trustee, in turn, must submit reports on his activities to the court. Id. § 78fff (h). Moreover, the court is required to make an independent judgment and findings as to whether a brokerage firm is in need of the protection of the Act, and may not merely rubber-stamp the recommendation of SIPC. SEC v. Alan F. Hughes, Inc., 461 F.2d 974 (2d Cir. 1972).

It is clear, too, that when Congress sought to limit the court’s power under SIPA, it did so explicitly. For example, § 78fff(b)(1) provides that so long as SIPC approval is obtained, the trustee may hire and fix the compensation of all personnel necessary for the liquidation of the debtor, without court approval. This section conspicuously omits mention of appointment or compensation of the trustee or his counsel, who are, in fact, appointed by the court pursuant to § 78eee (b)(3). Thus, without more, we would hesitate to find that the court’s role in examining fee awards is as limited as SIPC suggests.

III.

These general observations do not end our inquiry, however, for § 78fff (c)(1) requires us to determine whether § 241 is “inconsistent” with the aims of SIPA. We state preliminarily that we find little merit in appellants’ suggestion that application of § 241 will lead to inadequate compensation awards, which would in turn discourage responsible and competent lawyers from accepting appointment in SIPA cases. In other instances, for example in bankruptcy, we have seen no evidence that the bar is not performing creditably and indeed with distinction, notwithstanding the limited size of fees awarded and the supervision of those fee awards by the courts.

Accordingly, we turn to the heart of the appellants’ contention: that the standards applied by the court below, though coneededly appropriate for proceedings under chapter X, see Surface Transit Inc. v. Saxe, Bacon & O’Shea, 266 F.2d 862 (2d Cir.), cert. denied, 361 U.S. 862, 80 S.Ct. 121, 4 L.Ed.2d 103 (1959), are inconsistent with SIPA. Quoting from his earlier opinion, the district judge noted:

The standards for fee allowances in a reorganization proceeding call for the ascertainment of the level of services required, consideration of the burden that an estate can safely bear, the value of required services and the overall relationship of the compensation to the size of the estate being administered under a concept of reasonable economy of administration.
[T]he Court should take notice of whether professionals or para-professionals may be utilized for the services needed, whether the bulk of the work will require the services of accountants rather than lawyers, and whether the work required is legal or clerical in nature.

371 F.Supp. at 897. He then continued:

In addition to the foregoing, the Court must consider the time and labor required, the novelty of the problems presented, and the difficulty of the questions involved.

Id.

Appellants’ argument on this point seems to rest on two prongs. The first contention is that consideration of burden on an estate of limited size is improper in SIPA proceedings in which SIPC pays the fee. But, we have already commented that this argument might lead to the bizarre result of higher fees in “no-asset” cases than in cases in which substantial assets are present. Its flaws, however, go deeper than this, for it is based on a misconception about the meaning of “inconsistent” in § 78fff (c)(1). A provision is “inconsistent” with SIPA if it conflicts with an explicit provision of the Act or if its application would substantially impede the fair and effective operation of SIPA without providing significant countervailing benefits. But a provision does not become “inconsistent” simply because it is not absolutely necessary for the operation of the Act.. Thus, a district judge would not be justified in disregarding, as one relevant factor, the need for sensible and economical administration because SIPC was paying the fee. As we stated in SEC v. Alan F. Hughes, Inc., 481 F.2d 401, 404 (2d Cir.), cert. denied, 414 U.S. 1092, 94 S.Ct. 722, 38 L.Ed.2d 549 (1973), in response to a similar claim:

It may be true that allowing fees to the attorneys for defendants in an SIPC proceeding would not reduce the fund available for most broker-dealer customers. But it still does not follow that when incorporating section 64a into the 1970 Act, “[e]xcept as inconsistent with the provisions of” the Act, 15 U.S.C. § 78fff (c)(1), Congress intended to exclude well-settled judicial interpretations of that section.

The second prong of the appellants’ argument is that the standards applied below do not reflect the special factors involved in SIPA liquidations— the need to protect investors and to maintain confidence in the securities markets — which necessarily require additonal efforts by the trustee and his counsel. It is apparent, however, that the criteria applied by the district court are sufficiently broad to encompass such considerations, and that Judge Pollack gave appropriate weight to them.

IV.

There remains but one further claim to be considered. Citing the rule that the recommendations of the SEC on fee awards must be followed in chapter X proceedings “unless the reorganization judge showed reasons otherwise based on specific findings,” Scribner & Miller v. Conway, 238 F.2d 905, 907 (2d Cir. 1956), citing Finn v. Childs Co., 181 F.2d 431 (2d Cir. 1950), SIPC argues that its familiarity with SIPA liquidations requires that it be given similar deference. We agree that when reflected in reasons for support of a fee request, SIPC’s expertise should be accorded weight by a district court judge. But we hesitate to draw the analogy between the Corporation and the SEC. SIPC is not an independent regulatory agency, § 78ccc(a)(1), nor has it yet had the opportunity to establish a long history of knowledgeable and conscientious performance as has the SEC. Accordingly, we are persuaded that the district judge was not only justified in disagreeing with SIPC’s recommendations but had the authority to do so. To suggest that approval by SIPC of fee allowances carries with it an imprimatur which excludes any meaningful judicial review is contrary to the statutory scheme, and would constitute an unwise and dangerous delegation which Congress never intended.

Affirmed.

      . Claims for outstanding cash balances may be satisfied only to the extent of $20,000 per customer, 15 U.S.C. § 78fff(f) (1) (1970).

      . SIPO urges that we settle the uncertainty as to the jiroper method of appeal of fee awards under SIPA by ruling that such appeals may be taken of right. Although we need not decide this issue since leave to appeal was granted here, we believe it appropriate to provide guidance for the future.
      We are of the view that appeals are available only by leave of this court, in accordance with § 250 of the Bankruptcy Act, 11 U.S.C. § 650, which is applicable to SIPA by 15 U.S.C. § 78fff (c) (1). SIPC maintains tliat § 250 is rooted in the need to expedite the finality of approved plans of reorganization unencumbered by delays resulting from possibly frivolous appeals of fee awards, and that this policy is inapplicable to SIPA, which prohibits reorganizations. The argument suggests, at most, that § 250 is not necessary for the effectuation of SIPA. That, however, is a far cry from the showing, required by § 78fff(c)(1), that § 250 is “inconsistent” with SIPA. See infra at 1195-1196.

      . This omission is particularly striking because SIRC’s General Counsel, who argued this case here, was previously Special Counsel to the House Subcommittee which considered the bill that became SIPA, and is therefore well acquainted with the legislative history. See Hearings on H.R 13308, H.R. 17585, H.R. 18081, H.R. 18109, and H.R. 18458 Before the Subcomm. on Commerce and Finance of the House Comm, on Interstate and Foreign Commerce, 91st Cong., 2d Sess. II (1970).

      . We find further support for our interpretation of SIPA in the Report of the Task Force appointed by SIPC Chairman Hugh F. Owens to consider possible amendments to the Act. The Task Force recommended elimination of tlie required court approval of compensation of trustees and their counsel. In doing so, it clearly recognized that the act required judicial scrutiny of fee awards. Securities Investor Protection Corp., Report to the Board of Directors of the Securities Investor Protection Corporation of tire Special Task Force to Consider Possible Amendments to the Securities Investor Protection Act of 1970 at 52-53 (July 1974).

      . Indeed, the SIPO Task Force interprets § 78fff(c) (1) even more broadly than we find necessary to interpret it here. In its view, any provisions of the Bankruptcy Act which are not inconsistent with SIPA “automatically become part of [it], whether beneficial or detrimental to the conduct of a liquidation proceeding.” Id. at 35.

      . The opinion below did not, as appellants state, overemphasize the need for economy of administration in light of the size of the estate. Rather, it noted:
      While it is true that the “economical spirit” of the Bankruptcy Act does not limit the allowance of fees in a SIPC liquidation, neither should this Court permit such a liquidation to be “turned into an opportunity for vicarious generosity at the expense of a stricken entity.”
      371 F.Supp. at 897.

      . In fact, it is contemplated that the SBC will exercise a supervisory role over SIPO performance. See H.R.Rep.No.91-1613, 91st Cong., 2d Sess. 11-12 (1970), U.S.Code Cong. & Admin.News 1970, pp. 5265, 5266 (“substantial oversight on the part of the Commission” ; “Your committee, not only directs, but expects the Commission to use its oversight in a vigorous, but fair, manner.”)


source: Caselaw Access Project

author: OAKES, Circuit Judge:

license: Public Domain

text:
    LANCASTER COLONY CORPORATION, Appellee, v. ALDON ACCESSORIES, LTD., and Royal London, Ltd., Appellants.
    No. 255, Docket 74-1734.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 24, 1974.
    Decided Dec. 2, 1974.
    Arthur A. March, New York City, for appellants.
    Alan H. Levine, New York City, for appellee.
    Before WATERMAN, OAKES and GURFEIN, Circuit Judges.
   OAKES, Circuit Judge:

This appeal is from a judgment, after cross motions for summary judgment, for the holder of a design patent (No. 217,942) of a cigar holding ashtray. The United States District Court for the Southern District of New York, Charles H. Tenney, Judge, held for the plaintiff, Lancaster Colony Corporation (Lancaster), in its suit claiming that defendants, Aldon Accessories, Ltd. (Aldon), and Royal London, Ltd. (Royal), were selling ashtrays with a design infringing the plaintiff’s design patent. As the court below found, there is no doubt of infringement in that appellants’ ashtray is virtually identical to appellee’s, the only _ differences being that appellants’ ashtray is smaller and its top surface inclines at approximately an 8 degree angle from the trough end while the top surface of Lancaster’s ashtray is parallel to its base. The only issue on this appeal is the validity of Lancaster’s patent. In what seemed to the district court, as well as to us, a close case, we affirm.

Appellants contend, of course, that the ashtray design was fully anticipated by prior art and is therefore invalid under 35 U.S.C. § 103, which states that a patent may not be obtained

if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which such subject matter pertains.

Appellants refer to four previously patented ashtray designs: Stock, No. 2,641,264 (1953); Chambers, No. 145,-562 (1946); Segal, No. 2,335,973 (1943); and Russell, No. 371,901 (1887), only one of which, Chambers, was considered by the Patent Office examiner during Lancaster’s patent application. Appellee, of course, claims that its design is sufficiently distinctive to avoid the effect of 35 U.S.C. § 103.

This court held in G. B. Lewis Co. v. Gould Products, Inc., 436 F.2d 1176, 1178 (2d Cir. 1971), that § 103 was intended simply to codify the judicial precedents. See Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 553 (1966). The principal precedent is Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248, 267 (1851), and we have applied its teaching to design patents by saying

that the requirement of invention is not met by a design which is merely “new and pleasing enough to catch the trade”; rather we have insisted that the design reflect “some exceptional talent beyond the skill of the ordinary designer,” .

G. B. Lewis Co. v. Gould Products, Inc., 436 F.2d at 1178.

The design patent here covers an ashtray which, viewed from above, is in the form of a trapezoid. There is an ash receiving trough at one end and a cigar holding or receiving channel extending from the receiving trough to the opposite end of the ashtray. The trough itself is large and trapezoidal. As the court below found, the Russell patent introduced by appellee shows an ashtray with a trough at one end and a channel extending from the trough to the end of the ashtray opposite the trough. The shape of the Russell patent is rectangular. The shape of the trough is rectangular and the groove is shallower than that in the design patent here in suit. The Russell patent has a different length to height ratio and different front and rear end height to width ratios from the patent at bar. The edges of Russell appear to be right angled while those of the design patent here in suit are chamfered.

Segal, No. 2,335,973, is trapezoidal in shape with a trapezoidal trough, but there the similarities with appellee’s design end. Segal slopes gently from the trough end to the cigarette holding end, then curves at a place where it appears that a cigarette may be held. The tray is shaped so that a cigarette can be held in one of two ways, thereby apparently avoiding having the cigarette tip into the trough. While Segal is roughly trapezoidal, it bears no real resemblance te appellee’s ashtray, and we fail to see how combining the disclosures of the Russell and Segal patents can yield the neatness, simplicity, functional style and general air of contemporary solidity that is to be found in the appellee’s ashtray. Those elements enable us to agree with the court below as to the applicability of In re Blum, 153 U.S.P.Q. 177, 180 (CCPA 1967), where it said that

[T] here are no portions of a design which are “immaterial” or “not important.” A design is a unitary thing and all of its portions are material in that they contribute to the appearance which constitutes the design.

Appellants also rely on the Stock patent, No. 2,641,264, which is an ashtray for installation in vehicles, in which the trough conforms to the shape and outline of the outer wall and the receptacle is roughly trapezoidal in shape. However, it is a two-part affair including a thin plate hinged to an ashtray body, and it is the plate which fits on top of the receptacle which gives the ashtray, to a very limited extent, a trapezoidal appearance.

Chambers, Design 145,562, which was considered by the Patent Examiner during the patent application for the patent in suit, shows a pipe receptacle having an upper surface of trapezoidal shape. We agree with appellee that this shape was employed because a pipe has a long thin stem with a large bowl at one end. Plainly it has nothing to do with a trapezoidal shape for an ashtray since the pipe receptacle is simply a container for the pipe; it is not designed for use as an ashtray.

The Patent Office examiner did not refer, as we have said, to Segal, Stock or Russell but in addition to Chambers did refer to Gluck, No. 199,716 (1964), and Gayle, No. 172,873 (1964). Both Gayle and Gluck are, if anything, closer to the appellee’s ashtray than are the other patents relied upon by the appellants, and yet the Patent Office examiner considered appellee’s design sufficiently innovative to issue the patent. Gayle is trapezoidal in shape with a trough extending throughout the ashtray' and a little cigarette holder in the middle. Gluck is more coffin-shaped with a trough in the wider portion and side grooves at an angle for cigarettes. It also has style, simplicity and distinctive features.

All in all, we consider that the pertinent prior art cited here indicates that the design in suit was novel, original and of genuine artistic merit, demonstrating a creative skill surpassing that of the routine. See International Silver Co. v. Pomerantz, 271 F.2d 69 (2d Cir. 1959). The fact that the prior art contains elements found in appellee’s ashtray does not automatically invalidate the patent. We have previously held that

the mere fact that a person has utilized in combination a number of elements which severally were well known will not defeat the patentability of the combination. . . . But the utilization of old elements in combination must represent an exercise of inventive skill and creative talent beyond that of the ordinary designer chargeable with knowledge of the prior art.

Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 694, 696 (2d Cir. 1961).

Judge Tenney below with typical candor stated that he found it extremely difficult to verbalize his resolution of the issue. We agree that one really has to see the appellee’s ashtray to appreciate its simplicity and its clear lines combining with the transparency of lead crystal to make it quite attractive. This court has previously said that “[t]he simplicity of an invention or an improvement thereof is not, however, the test of its obviousness.” Shaw v. E. B. & A. C. Whiting Co., 417 F.2d 1097, 1104 (2d Cir. 1969), cert. denied, 397 U.S. 1076, 90 S.Ct. 1518, 20 L.Ed.2d 811 (1970). As Willa Cather put it, in a literary context, “Art . . . should simplify. That, indeed, is very nearly the whole of the higher artistic process; finding what conventions of form and what detail one can do without and yet preserve the spirit of the whole . ” We believe that the combination here is a new, original, decorative and unobvious design for a cigar ashtray.

Interestingly, the design achieved some considerable commercial success in that Lancaster, under an exclusive contract, sold over 9,000 of the ashtrays to Alfred Dunhill, Ltd., between 1969 and 1972 (over half of which were sold during 1972); Dunhill in turn retailed the ashtrays for $39.50 each. To be sure, we are told that they were retailed in a handsome box with silk lining, but it is the aesthetic appearance of the ashtray itself which attracts a purchaser at such an expensive price. And as was stated by the Ninth Circuit in Robert W. Brown & Co. v. DeBell, 243 F.2d 200, 202 (9th Cir. 1957), commercial success is of considerable importance in determining the validity of a design patent because in the end the objective of most such designs is to enhance saleable value. See also Graham v. John Deere Co., 383 U.S. at 17, 86 S.Ct. 684; International Silver Co. v. Pomerantz, 271 F.2d at 72.

Here there not only was commercial success, which in an otherwise close case might tip the scales, but there was also clearcut imitation by the appellants. It is possible to pick up several of this year’s Christmas catalogues and see either the appellants’ or another imitator’s design advertised to retail at a price of $20 or just under $20. While we do not go- dehors the record for deciding the merits, we think that the description of the design in one such catalogue indicates, with a little salesmanship, perhaps, just what we are talking about. The ashtray is there referred to as “The Heavyweight.” It is said to be “a solid piece of crystal glass that even feels like it belongs in a man’s den or on his desk.” The mail order advertisement goes on to say,

Lots of good design here too. The cigar ashtray is typical of what you get when you combine honest good looks with utilitarian, functional design. Ever notice how most ashtrays just don’t seem to fit a good sized cigar? This one does. Also perfect for today’s extra long cigarettes. (It’s nice to know, too, that this ashtray duplicates almost exactly — and incredibly —the $40 Fifth Avenue version.) So good-looking, you may want to use it as a paper weight, paper clip holder, etc.

The $40 Fifth Avenue version is, of course, the D unhill ashtray which was sold by appellee.

Some time ago this court said in a case that has since been followed in the Fourth and Fifth Circuits, among others,

The imitation of a thing patented by a defendant, who denies invention, has often been regarded, perhaps especially in this circuit, as conclusive evidence of what the defendant thinks of the patent, and persuasive of what the rest of the world ought to think.

Kurtz v. Belle Hat Lining Co., 280 F. 277, 281 (2d Cir. 1922). See also Shaw v. E. B. & A. C. Whiting Co., 417 F.2d at 1106.

We conclude, with Judge Tenney, that this ashtray design is exactly what the design patent statute was intended to encourage. As said in Gorham Co. v. White, 81 U.S. (14 Wall.) 511, 524 (1871),

The acts of Congress which authorize the grant of patents for designs were plainly intended to give encouragement to the decorative arts. They contemplate not so much utility as appearance, and that, not an abstract impression, or picture, but an aspect given to those objects mentioned in the acts.

It is only a simple cigar ashtray, but it is an aesthetically pleasing design and one which reflects “some exceptional talent beyond the skill of the ordinary designer.” Lewis Co. v. Gould Products, Inc., 436 F.2d at 1178.

Judgment affirmed.

      . . . . for unless more ingenuity and skill in applying the old method . . . were required in the application of it ... than were possessed by an ordinary mechanic acquainted with the business, there was an absence of that degree of skill and ingenuity which constitute essential elements of every invention.

      . Commercial success was not a factor the district court weighed in its balance.

      . From The Gallery division of Amsterdam Co., Amsterdam, New York.

      . Sel-o-Rak Corp. v. Henry Hanger and Display Fixture Corp. of America, 232 F.2d 176 (5th Cir.), cert. denied, 352 U.S. 870, 77 S.Ct. 95, 1 L.Ed.2d 76 (1956); Ackermans v. General Motors Corp., 202 F.2d 642 (4th Cir.), cert. denied, 345 U.S. 996, 73 S.Ct. 1139, 97 L.Ed. 1403 (1953).

      . It is also interesting that while appellants rely heavily on the Russell patent which has been in existence since 1887 as “a clear anticipation of the design of the patent in suit,” the many copies of appellee’s design did not appear until after appellee’s ashtray appeared on the market.


author: J. JOSEPH SMITH, Circuit Judge:

text:
    UNITED STATES of America, Appellant, v. Fred FERNANDEZ, Appellee.
    No. 160, Docket 74-1164.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 13, 1974.
    Decided Nov. 6, 1974.

      Thomas R. Pattison, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., of counsel), for appellant.
    Eleanor Jackson Piel, New York City, for appellee.
    Before KAUFMAN, Chief Judge, and SMITH and TIMBERS, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

This appeal marks our third encounter with the prosecution of Fred Fernandez. On February 25, 1971, Fernandez was indicted for his alleged participation in the Christmas Eve, 1970 holdup of the First Federal Savings and Loan Association on Kissena Boulevard in Queens. Since that time the government has made four unsuccessful attempts to convict him, and now it asks us to give it another chance. The first trial resulted in a hung jury; in the second and third trials, judgments of conviction were obtained, both of which were reversed on appeals to this court. The fourth attempt never reached trial. The United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, dismissed the indictment because of the government’s refusal to disclose the names of two “informants” who had from bank photographs identified a person other than Fernandez as one of the bank robbers. The government’s appeal from this order is now before us We reverse and remand with directions.

I.

The very question presented by this appeal was before us in Fernandez II. We saw the issue as one of “ ‘balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.’ Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957).” On the “public interest” side of the scale was the government’s assertion that the informants would be placed in serious danger were their identities disclosed. On the “right to prepare a defense” side was the fact that Fernandez was able to question FBI agent Sweeney, and thereby accomplish substantially the same thing that questioning the informants themselves could have accomplished. We held that this balance tipped decidedly toward nondisclosure, and specifically noted that this ruling was to apply at the anticipated fourth trial. 480 F.2d at 738-739.

That trial did not occur. The district court, upon learning certain facts not before this court on the prior appeals, ruled that disclosure was necessary, and dismissed the indictment when the government refused to comply. The new evidence consisted of the identities of the informants and an admission by the government that the informants had agreed to talk only upon receiving assurances that they would not be called upon to testify. The district court stated that the individuals were “public officials” and “not the normal type informants,” found the claim of danger to be “absolutely incredible” and “farfetched,” and concluded that the reason for the government’s refusal to disclose was not the possibility of danger, but the “private agreement” with the informants. In addition, the court found that the identities of the informants constituted Brady material because the informants would be “two reputable witnesses” whose exculpatory testimony might well “be very persuasive with the jury.” Indeed, the court went so far as to say, “If I were defense counsel I couldn’t try the case without having this material.” Thus, on the basis of new evidence, the district court held the government’s assertion of danger to be groundless, and it found that there would be benefit to the defense from having the informants testify personally, as opposed to having an FBI agent testify about their misidentification.

The issue presented to us, therefore, is whether a district court, on remand after appeal, may change the law of the case as established by this court on the basis of new evidence. We are constrained to hold that it may not unless, of course, authorized to do so by the terms of the remand. The rule has been stated as follows:

Where a case has been decided by an appellate court and remanded, the court to which it is remanded must proceed in accordance with the mandate and such law of the case as was established by the appellate court.

1 B J. Moore, Federal Practice, ¶ 0.-404 [10] at 571 (2d ed. 1974) (footnotes omitted). In Munro v. Post, 102 F.2d 686, 688 (2d Cir. 1939), this court characterized the doctrine of law of the case as imposing a “duty” on a district court to follow a ruling made by this court at an earlier stage of a case. The Supreme Court has likewise indicated that compliance with an appellate court’s prior rulings in a case is a matter of a trial court’s duty, not its discretion. In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 40 L.Ed. 414 (1895); Ex parte Sibbald v. United States, 12 Pet. 488, 492, 9 L.Ed. 1167 (1838). And in Banco Nacional de Cuba v. Farr, 383 F.2d 166, 177 (2d Cir. 1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1038, 20 L.Ed.2d 1151 (1968), we noted that the law of the case (as embodied in the Supreme Court mandate rule) “prevents the lower court from considering newly discovered evidence.” We must therefore reverse the order of the district court and remand for further proceedings.

II.

That does not finally dispose of the issues, however. An issue decided on a prior appeal is not foreclosed with all the finality of res judicata when the ease comes back to this court. Although the district court may not change our mind for us, we may ourselves do so.

[T]he federal doctrine of law of the case merely expresses the practice of federal courts generally to refuse to reopen what has been decided, not a limit to their power. The doctrine embodies a salutary rule of practice that when a federal appellate court has established a rule of law for the case at bar it will not, on a successive appeal, depart therefrom in deciding the same issues, except for cogent reasons. In brief, the doctrine does not rigidly bind the appellate court, but is addressed to its good sense, and the court will depart from its prior legal pronouncements when the circumstances of the case warrant.

1 B J. Moore, Federal Practice, supra, ¶ 0.404[10] at 573-74 (footnotes omitted).

This has long been the Supreme Court’s view on the subject, and it finds ample support in our cases as well. Johnson v. Cadillac Motor Car Co., 261 F. 878 (2d Cir. 1919). Johnson’s interpretation of the law of the case doctrine was reaffirmed in Perrone v. Pennsylvania R.R., 143 F.2d 168, 169 (2d Cir. 1944). See also, Petition of Kinsman Transit Co., 388 F.2d 821, 825 n. 9 (2d Cir. 1968).

Fernandez II itself intimated that an appellate court can revise its ruling made in a prior appeal on the basis of new evidence. In Fernandez I, we held that a photographic identification was conducted under unnecessarily suggestive circumstances, but indicated that it appeared quite clear that the witnesses who made those identifications would be able to make in-court identifications free of taint. In Fernandez II, on the basis of evidence that had not been available on the prior appeal, we noted that the latter proposition was “considerably closer” than we had previously thought. 480 F.2d at 736.

To be sure, the discretion of a court to review its earlier decisions is one which should be exercised sparingly, so as not to undermine the salutary policy of finality of adjudication that is the basis of the law of the case rule. See, Johnson, supra, 261 F. at 886 (“injustice” and “unsound” principle of law led to departure from rule); HammondKnowlton v. United States, 121 F.2d 192, 205 (2d Cir.), cert. denied, 314 U.S. 694, 62 S.Ct. 410, 86 L.Ed. 555 (1941) (“seriously incorrect” earlier rule). Cf., Petition of United States Steel Corporation, 479 F.2d 489, 494 (6th Cir. 1973). But the district court’s emphatic finding that the danger to the informants was, to say the least, overstated, coupled with the fact that the sealed exhibit which formed the basis for the district court’s decision was not before us in Fernandez II, prompts us to reconsider our earlier holding. Upon examination of the sealed exhibit, we are in agreement with the district court that the government’s claim of danger is doubtful. The district court’s description of the individuals as “public officials” and “not the normal type informants” is quite accurate, and we suppose that skilled defense counsel could use their status in the community in order to lend weight to their desired testimony identifying the robber as one other than Fernandez in terms of credibility — more so, certainly, than if they were the somewhat sleazy individuals generally thought of as “the normal type informants.” This extra weight might be all the more helpful at this stage of the proceedings since another eyewitness to the robbery who said that the participant alleged to be Fernandez was 5’6" tall (Fernandez is 6') died after the second trial.

There is before us no convincing showing of substantial danger, and since these individuals do not provide a continuing source of information to the government, thei’e is little occasion in this case to consider a Roviaro balance. Their testimony would be exculpatory, and since the defense may be able to make something of it in view of their apparent credibility, their identities should be disclosed as Brady material. United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964). To the extent that. Fernandez II is to the contrary, it should not be treated as controlling on remand; rather the trial court should again direct the government to disclose the informants’ identities. If the government persists in its refusal, the indictment should be dismissed.

Reversed and remanded, with directions.

      . In United States v. Fernandez, 456 F.2d 638 (2d Cir. 1972) (Fernandez I) we reversed because testimony was introduced regarding the identification of Fernandez from an impermissibly suggestive photographic display. In United States v. Fernandez, 480 F.2d 726 (2d Cir. 1973) (Fernandez II) we reversed on account of excessive and improper questioning of witnesses by the trial judge.

      . We have jurisdiction pursuant to 18 U.S.C. § 3731.

      . Obviously, the danger could not have come from Fernandez, since the informants’ testimony would have been exculpatory. Rather, the government pinpointed as the source of the danger two individuals alleged to have participated in the robbery with Fernandez, wliom the informants had correctly identified, and who had been convicted.

      . This information was in the form of a sealed exhibit not made available to the defense.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . Southern Ry. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 67 L.Ed. 283 (1922); Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912).

      . This was an action brought by an automobile imrchaser against the manufacturer, alleging negligent failure to inspect defective wheels. Plaintiff obtained judgment, but this court reversed on the ground that no contractual relationship existed between the parties. 221 P. 801 (2d Cir. 1915). After a second trial (without a jury) the same facts were found as to negligence, but the trial court, relying on this court’s ruling, dismissed the action because there was no proof of the requisite contractual relationship). Plaintiff appealed, and this court held that the proper rule of law was not that stated in the prior appeal, but rather that stated in the subsequent decision of the New York Court of Appeals in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), that a contractual relationship is not a prerequisite to liability in such circumstances. (Because these events transpired before the decision in Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the federal courts were not bound to treat the MacPherson decision as controlling. It has since been held that, in a case where Erie applies, a change in state law must be given effect by a federal court, even if that means changing the law of the case. Jones v. Schellenberger, 225 F.2d 784, 791 (7th Cir. 1955), cert. denied, 350 U.S. 989, 76 S.Ct. 476, 100 L.Ed. 855 (1956)). Recognizing that this decision was contrary to the law of the case as established on the prior appeal, Judge Rogers, writing for the majority, stated that this rule
      is not an inexorable one, and should not be adhered to in a case in which the court has committed an error which results in injustice, and at the same time lays down a principle of law for future guidance which is unsound and contrary to the interests of society.
      261 F. at 886.

      . In Hatch v. Morosco Holding Co., 26 F.2d 247 (1928), aff’d sub nom. Riehle v. Margolies, 279 U.S. 218, 49 S.Ct. 310, 73 L.Ed. 669 (1929), this court, referring to a prior decision in the same case, 19 F.2d 766 (2d Cir. 1927), stated that “in the same case and on the same claim the first ruling must stand.” We take this to mean that the Court was declining to exercise its discretion to review the law of the case as established on the prior appeal, and not that it was disclaiming the power to do so. The prior decision referred to had itself changed the law of the case established by yet an earlier appeal. 5 F.2d 1015 (2d Cir. 1925). In addition, a disclaimer of power would have been contrary to the Supreme Court’s decisions in Southern Ry. v. Clift, supra, n. 6, and Messenger v. Anderson, supra, n. 6.

      . Of course, this implication does not rise to the dignity of a holding. The Fifth Circuit, however, has explicitly stated that an appellate court may re-examine its ruling in a prior appeal of the same case where “much evidence appear [s] in the second appeal that [was] not directly presented in the first.” Commercial National Bank in Shreveport v. Connolly, 176 F.2d 1004, 1006 (5th Cir. 1949) (enbanc).

      . Sealed affidavits as to the danger to the informants were supposedly also provided the court. They have not been found in the court files and the government has not produced them or copies thereof for our inspection.

      . For an extreme examide, see the description of the informant Lipsky in United States v. Mallah, 503 F.2d 971, 977-979 (2d Cir. 1974).

      . This fact was not before the court in Fernandes II. Fernandez claims that the identity of this witness was withheld from him by the government, and that this was part of an overall course of conduct designed to deny him a fair trial. The government claims that it disclosed the identity of this witness. While we need not resolve this issue, wo do note that this case has been dragging on so interminably largely because of the manner in which the government has chosen to prosecute it. See, Fernandes II, 480 F.2d at 741 & n. 23.


author: PER CURIAM.

text:
    Donnie R. McCORMICK, Appellant, v. Frances G. ROSS et al., Appellees.
    No. 74-1546.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 15, 1974.
    Decided Nov. 25, 1974.
    Donnie R. McCormick, filed brief and reply brief pro se.
    John M. Mcllroy, Sr., Bowling Green, filed appendix for appellees.

      Gerard F. Hempstead, filed brief for appellees Briscoe and Millan.
    John M. Mellroy, Bowling Green, filed brief for appellee Ross.
    Before GIBSON, Chief Judge, MATTHES, Senior Circuit Judge, and WEBSTER, Circuit Judge.
   PER CURIAM.

Donnie R. McCormick, hereinafter referred to as plaintiff or McCormick, was convicted of first degree murder in the Circuit Court of Ralls County, Missouri, on February 27, 1968. The judgment of conviction was affirmed by the Supreme Court of Missouri. State v. McCormick, 426 S.W.2d 62 (Mo.1968), cert. denied, 394 U.S. 930, 89 S.Ct. 1199, 22 L.Ed.2d 460 (1969). Since the affirmance McCormick has waged a continuous, albeit unsuccessful, legal battle in an effort to vacate the judgment and sentence. See McCormick v. State, 502 S.W.2d 324 (Mo.1973); McCormick v. State, 463 S.W.2d 789 (Mo.1971), for opinions in which the Supreme Court of Missouri has affirmed state circuit court decisions denying plaintiff post-conviction relief.

Of the numerous post-conviction motions filed by plaintiff, the one relevant to the present litigation is a motion to vacate sentence filed in state circuit court on February 14, 1974, pursuant to Mo.Sup.Ct.Rule 27.26, V.A.M.R. In that motion McCormick contended that his 1968 conviction for first degree murder was based upon an original information charging only second degree murder. In making this assertion, McCormick relied upon a supposed copy of the original information in his case which he had requested and received in 1967 from the circuit court clerk of Ralls County. Plaintiff McCormick’s motion was denied on March 15, 1974, after the circuit court judge hearing the motion personally examined the information on file. An appeal from that denial of relief is pending in the Missouri Court of Appeals, St. Louis Division.

This brings us to the instant controversy.

After plaintiff McCormick discovered that there was a discrepancy between the wording of the copy of the information which he had received in 1967 and the original information examined by the Rule 27.26 judge in 1974, he filed the instant civil rights complaint seeking declaratory and injunctive relief as well as compensatory and punitive damages in the United States District Court for the Eastern District of Missouri. The complaint, filed April 17, 1974, named as defendants Frances G. Ross, individually and as clerk of the Ralls County, Missouri, circuit court; John W. Briscoe, individually and as prosecuting attorney of Ralls County, Missouri; and James Millan, individually and as prosecuting attorney of Pike County, Missouri. Plaintiff alleged jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343, 2201, and 2202.

As we read plaintiff’s complaint, his supporting affidavit, and the briefs he has filed in this court, he claims that the information now appearing in the circuit court files and examined by the 27.26 judge is not the information that was in fact originally filed. The information now in the Ralls County circuit court files reads as follows:

James Millan, Prosecuting Attorney duly elected, commissioned, sworn, qualified, installed and acting as such in and for said County of Pike in the State of Missouri, upon his said oath, and upon his hereto appended oath, informs the Court and upon his said oath and upon his hereto appended oath depose, present, aver and charge that said defendant, on the 6th day of May A.D.1966, at the said County of Pike did then and there unlawfully, willfully, and feloniously premeditatedly, deliberately, on purpose, and of his malice aforethought did make an assault upon one Gilmer Fontaine Meriwether [sic] with a fist and a foot and then and there, feloniously, wilfully, premeditatedly, deliberately, on purpose, and of his malice aforethought did strike, knock, kick, hit and beat with great force and violence at and upon the body of the said Gilmer Fontaine Meriweather and did then and there, feloniously, wilfully, premeditatedly, [deliberately, on purpose and of his malice aforethought] did push and throw the said body of the said Gilmer Fontaine Meriweather into a well containing several feet of cold water thereby causing the said Gilmer Fontaine Meriweather to go immediately into shock and get a spasm of the larynx, become helpless and to instantly die on the said 6th day of May, 1966. [Brackets and emphasis supplied.]

The document bears the official seal of the Circuit Court of Pike County and a stamp indicating that it was filed on May 10, 1966, as well as the sworn signature of James Millan, Pike County prosecuting attorney.

Plaintiff asserts that the language bracketed above does not appear on the copy of the information he received from the clerk in 1967. His theory seems to be that the words, “deliberately, on purpose, and of his malice aforethought,” were omitted from the original information and that the defendants subsequently “altered and changed [the information] to defeat plaintiff’s cause of action before the court,” apparently meaning the court hearing his 27.26 motion in 1974.

In response to the complaint, the defendants filed a motion to dismiss or alternatively for summary judgment. In support of the motion, affidavits were filed by the three named defendants; by J. L. Gingry, a deputy circuit court clerk of Ralls County since January 1, 1963; and by Kenneth A. Scott, clerk of the Circuit Court of Pike County since January 2, 1959.

In her affidavit, circuit court clerk Ross stated that on October 19, 1966, she received the transcript of the proceedings in the case from the circuit court clerk of Pike County, Missouri, on change of venue. Included in the papers was an “information for a felony,” signed by James Millan and filed in the Circuit Court of Pike County on May 10, 1966. Affiant Ross attached to her affidavit a true copy of the information she received, and it is identical to the original information now on file and which has been set out above. Ross further alleged that an amended information was filed in Ralls County, a copy of which was attached to her affidavit. The amended information is identical to the original information, except that it alleged two prior convictions of the plaintiff. Affiant Ross further declared that pursuant to a request from the plaintiff dated May 11, 1967, she sent him a copy of the information, but that her records did not indicate whether she sent plaintiff a copy of the original or a copy of the amended information. Ross specifically denied any knowledge that the copy of the information which she forwarded to plaintiff differed in any respect from the actual records on file in her office, but she stated that she did not make a copy of the document that she forwarded to plaintiff. She further averred that there was no Xerox machine available in the Ralls County circuit court clerk’s office in 1967, and that copies of documents had to be typed. Consequently, she asserted that if there was any variance between the wording of the original information on file and the language of the copy sent to plaintiff, it was due to an error in typing the copy sent to plaintiff.

J. L. Gingry executed an affidavit which corroborated the sworn statement of defendant Ross.

Defendant Briscoe’s affidavit was to the effect that he had no personal knowledge of the trial of Donnie Ray McCormick, inasmuch as he was not appointed prosecuting attorney of Ralls County until on or after April 1, 1972, which was several years after plaintiff had been tried.

The gist of defendant Millan’s affidavit is that he prepared the original and amended informations; that the plaintiff was tried on the amended information; that based upon his knowledge and information and the records, no change or alteration had been made in the original or amended information; and that if the copy received by plaintiff did not contain the alleged omitted phrase in controversy, it was the result of inadvertence and error on the part of the person who typed the copy.

Affiant Scott stated that an information was filed on May 10, 1966, in his office. A copy of that information was attached to Scott’s affidavit, and it is identical to the information set out above. He further stated that “at no time was the information or any of the other papers contained in the case of State of Missouri v. Donnie Ray McCormick tampered with, changed or molested in any respect by James Millan, Frances G. Ross, John Briscoe, or any other person * * * while said papers were in my possession as clerk of the circuit court of Pike County, Missouri.”

After examining all the files and documents, Judge Nangle, of the United States District Court for the Eastern District of Missouri, granted the motion for summary judgment and filed a supporting memorandum opinion. Judge Nangle reasoned that the plaintiff’s complaint and affidavit completely failed to give any factual reason for casting doubt on defendants’ assertion that the alleged deletion in the copy sent to plaintiff resulted from a scrivener’s error, and that his mere factually unsupported denial was insufficient to raise a genuine issue of fact.

Plaintiff McCormick has appealed from the action of the district court in granting summary judgment for defendants.

The crux of the controversy before us is whether plaintiff’s complaint and supporting affidavit -are sufficient, in light of the affidavits filed by the defendants, by the deputy clerk of Ralls County, and the circuit court clerk of Pike County to create a genuine issue of fact. We are convinced that the plaintiff’s complaint and supporting affidavit are wholly insufficient to present any issue which would require a trial.

It is settled law that when a party seeks summary judgment and makes out a convincing showing that genuine issues of fact are lacking, the adversary is required to adequately demonstrate by receivable facts that a real, not a formal, controversy exists in order to defeat the motion for summary judgment. Fed.R.Civ.P. 56(e); DeBardeleben v. Cummins, 453 F.2d 320 (5th Cir. 1972); Bruce Construction Corp. v. United States, 242 F.2d 873 (5th Cir. 1957); 6 Moore’s Fed.Prac. ¶ 56.11 [3].

A study of plaintiff’s complaint, supporting affidavit, and briefs reveals that plaintiff specifically pleads and avers that he has a copy of an information charging him with murder which is worded differently from the information in the Ralls County circuit clerk’s files. Based upon this discrepancy in wording, plaintiff makes conclusory and conjectural allegations, without asserting the existence of any factual basis therefor, that the differences in wording came about through some conspiracy by the defendants to alter the original information in the circuit clerk’s files.

Assuming for purposes of this appeal that the copy of the information which plaintiff received from the clerk of the circuit court of Ralls County did not contain the phrase bracketed in the quotation above, this is not sufficient in the face of the undisputed affidavits of the defendants, deputy clerk Gingry, and clerk Scott to warrant a recovery of damages under the civil rights statute or to preclude a grant of summary judgment for defendants. See 6 Moore’s Fed.Prac. ¶ 56.22 [1],

The judgment is affirmed.

      . Tile prosecution of plaintiff was originally instituted in Pike County, Missouri, but transferred to Ralls County on change of venue.

      . McCormick conceded that an amended information eventually substituted for the original information before trial adequately charged him with first degree murder. He argued, however, that if the original information in fact did not charge him with first degree murder, he could not properly be convicted of that charge on the amended information, since Mo.Sup.Ot. Rule 24.02 provides that an information may only be amended if no additional or different offense is charged.
      Plaintiff also filed a petition for writ of error coram nobis in the circuit court of Ralls County, attacking the prior convictions alleged in the amended information. An appeal from denial of relief in that proceeding is pending in the Missouri Court of Appeals, St. Louis Division.


author: HAMLEY, Circuit Judge;

text:
    John PASKALY, Plaintiff-Appellant, v. Bryan P. SEALE, DefendantAppellee.
    No. 73-1682.
    United States Court of Appeals, Ninth Circuit.
    Nov. 20, 1974.

      K. Lambert Kirk (argued), San Francisco, Cal., for plaintiff-appellant.
    Leonard M. Sperry, Jr., Deputy Atty. Gen. (argued), San Francisco, Cal., for defendant-appellee.
    Before HAMLEY, BROWNING and WALLACE, Circuit Judges.
   OPINION

HAMLEY, Circuit Judge;

John Paskaly, plaintiff in this civil rights damage action under 42 U.S.C. § 1983, appeals from a summary judgment in favor of defendant Bryan P. Seale. We affirm.

Seale is a deputy labor commissioner attached to the Division of Labor Law Enforcement, Department of Industrial Relations, State of California (Division). One of Seale’s official functions is to investigate wage claims and to take appropriate action. He received a wage claim from an employee in the amount of eight hundred and thirty dollars against Paskaly for services allegedly rendered as an electrician and carpenter.

Pursuant to this claim, Seale sent Paskaly the Division’s demand in February, 1969, for eight hundred and thirty dollars in wages. Such demands are not enforceable except by means of a subsequent civil court action. Paskaly refused the demand whereupon Seale .sent Paskaly the Division’s order to appear at a hearing on March 5, 1969. This was not a subpoena and Paskaly was not obliged to obey it. Seale conducted the hearing, received certain evidence, and thereafter ordered Paskaly to pay the wage claim plus penalties in the amount of five hundred thirty-three dollars and thirty-three cents. As in the case of Seale’s original order, this order could be enforced only in a civil court action.

Paskaly refused to comply with this order whereupon Seale referred the matter to the Division’s legal section for action. The supervisor of the legal section assigned counsel to the case. The employee assigned his wage claim to the Division and, pursuant to section 210 of the California Labor Code, the Division instituted a civil suit against Paskaly in the Municipal Court for the City and County of San Francisco. The civil suit came on for trial on February 9, 1971, and resulted in a judgment for Paskaly, entered on April 23, 1971.

Paskaly commenced this civil rights action against Seale on September 26, 1972, seeking damages in the sum of five hundred and fifty thousand dollars for assertedly depriving plaintiff of due .process of law. In his complaint, Paskaly alleged that: (1) when Seale processed the wage claim he knew or should have known that the employee who had made the wage claim had been an institutionalized alcoholic; (2) Seale knew or should have known that the wage claim was false; (3) Seale knew of the attempts the employee’s divorced wife had made to blackmail Paskaly; (4) Seale sent the notice to Paskaly to appear at the March 6, 1969, hearing for the purpose of frightening, intimidating, and coercing Paskaly; (5) at that hearing Seale, who presided, was “arrogant, insolent, uncivil and insulting,” and refused to consider a statement of Ray Chadley, offered by Paskaly; (6) Seale’s order entered as a result of this hearing, directing Paskaly to pay the wage claim and penalties, was entered in an effort to coerce Paskaly; (7) the penalties imposed by Seale were unlawfully assessed; and (8) Seale attended the trial and sat at the Division’s counsel table.

Seale moved to dismiss the complaint under Rules 8(a) and 12(b)(6), F.R.Civ.P. and, in the alternative, moved for summary judgment under Rule 56, F.R.Civ.P. To support these motions, an affidavit by Seale and a legal memorandum were also submitted to the court. The memorandum indicated that the motion for summary judgment was made on the dual grounds that Seale was protected from liability under the doctrine of quasi-judicial immunity and the action was barred by the statute of limitations.

The district court granted the motion for summary judgment on both of the grounds urged by Seale.

In view of the motion for summary judgment we take, as true, all of the facts and allegations stated above, except those contrary to Seale’s affidavit. See note 2, supra.

In our opinion, the undisputed facts do not establish a civil rights claim under 42 U.S.C. § 1983 or any other provision of the Civil Rights Act.

The Due Process Clause of the Fourteenth Amendment, which Paskaly invokes, forbids the states from depriving any person of life, liberty or property, without due process of law. Paskaly asserts that, acting under color of state law, Seale deprived him of liberty and property without due process of law.

First, with regard to the administrative processing of the wage claim, Paskaly was subjected to insulting and arrogant treatment. Moreover, Seale, as presiding officer, failed to permit Paskaly to introduce evidence or otherwise make an effective defense, and decided against Paskaly although he knew the wage claim was false. This conduct would constitute a denial of due process of law, if either Paskaly’s liberty or property were at stake in the administrative proceedings. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

It is obvious that Paskaly’s property interest in retaining the amount of the wage claim and penalties was not in jeopardy in the administrative proceedings, because no binding administrative order could be, or was, entered. Moreover, Paskaly was never deprived of that property interest because he ultimately prevailed in the civil suit. As stated in Mitchell v. W. T. Grant Company, 416 U.S. 600, 611, 94 S.Ct. 1895, 1902, 40 L.Ed.2d 406 (1974):

“‘[w]here only property rights are' involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.’ Phillips v. Commissioner, 283 U.S. 589, 596-597, 51 S.Ct. 608, 75 L.Ed.2d 1289. ...”

A possible property interest of Paskaly’s which was at stake in the administrative proceedings was the expense he may have incurred in time and money in defending himself in those proceedings. But the Due Process Clause does not take cognizance of expenditures of this kind as a property interest. No one has a legitimate claim to be free from the expense of defending himself in an administrative proceeding, however outrageously it may be conducted, where it can lead to no binding order. Cf. Board of Regents of State Colleges v. Roth, supra, 408 U.S. at 577, 92 S.Ct. 2701.

Turning from property interest to liberty, which is also protected by the Due Process Clause, we start with the proposition that this Clause denotes not merely freedom from bodily restraint, but also many peripheral benefits, such as freedom from serious damage to one’s standing and associations in the community. Board of Regents of State Colleges v. Roth, supra at 571, 573, 92 S.Ct. 2701. But whatever temporary grievance of this kind Paskaly may have suffered during the administrative proceedings was fully vindicated in the civil suit in which he prevailed.

With regard to the civil action, Paskaly can have no due process complaint about the outcome, either from the aspect of property interest or liberty, because he prevailed, and for the same reason, he can have no complaint about the procedures used in the civil action. Moreover, under the facts established by Seale’s affidavit, Seale is not responsible for the bringing of the civil action or for any proceedings had therein.

It is true that the expense incurred by Paskaly in defending himself against the civil suit possibly constitutes a property interest. It is also true that Seale’s recommendation to sue, although not binding upon the Division’s attorneys, was probably a major contributing factor in the decision to file the civil action. But since Seale’s part in the bringing of the action was recommendatory only, it cannot be said that he deprived Paskaly of this property interest. See note 2, supra. Administrative officers who make such non-binding recommendations do not do so at the risk of incurring damage liability if the suit turns out to be unfounded.

Paskaly likens the proceedings to which he was subjected to the tort of malicious prosecution. Malicious prosecution, however, is a concept applicable only in criminal proceedings. See Nesmith v. Alford, 318 F.2d 110, 121 (5th Cir. 1963). Moreover, the tort of malicious prosecution, without more, does not constitute a civil rights violation. Martin v. King, 417 F.2d 458, 462 (10th Cir. 1969); Curry v. Ragan, 257 F.2d 449, 450 (5th Cir. 1958); Lyons v. Baker, 180 F.2d 893 (5th Cir. 1950). In addition, under the facts, Seale is not responsible for the bringing of the civil action. See note 2, supra.

Absent some showing of a violation of the Equal Protection Clause, or the impairment of some other specific constitutional safeguard, grievances of this nature are not covered by the sanctions of the Civil Rights Acts. See Curry v. Ragan, 257 F.2d 449, 450 (5th Cir. 1958).

We do not reach the questions of quasi-judicial immunity and the running of the statute of limitations.

Affirmed.

      . Section 92 of tlie California Labor Code authorizes the labor commissioner and his deputies to conduct such hearings. This provision also bestows the power to issue subpoenas on the commissioner, but in this case no subpoena was issued.

      . In his comidaint Paskaly also alleged that Seale maliciously caused the attorneys of the “Department of Labor Law Enforcement” to file the civil lawsuit against Paskaly and, in bringing the suit Seale used and aided the “Department’s” Los Angeles attorneys. However, these allegations are contrary to the recitals in the affidavit of Seale, filed in support of the motion for summary judgmenf, a'nd Paskaly filed no countering affidavit.

      . The district court also held that the complaint is scurrilous and scandalous, in violation of Rule 11, F.R.Civ.P., and for that reason should be stricken,

      . While the district court did not grant the summary judgment on this ground, we are free to affirm on any ground supported by the record, provided the parties have had the opportunity to discuss it in their briefs in this court. That is the case here.


author: SNEED, Circuit Judge:

text:
    SAFEWAY PORTLAND EMPLOYEES’ FEDERAL CREDIT UNION, a federal credit union, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Appellee.
    No. 73-1207.
    United States Court of Appeals, Ninth Circuit.
    Nov. 18, 1974.

      Edward L. Fitzgibbon (argued), Portland, Ore., for appellant.
    Cleveland C. Cory (argued) of Davies, Biggs, Strayer, Stoel & Boley, Portland, Ore., for appellee.

       Hon. William J. Jameson, Senior United States District Judge, District of Montana, sitting by designation.

   OPINION

Before KILKENNY and SNEED, Circuit Judges, and JAMESON, District Judge.

SNEED, Circuit Judge:

This ease arises out of the failure of the Sharpstown State Bank of Houston, Texas. Plaintiff-Appellant Credit Union is a purchaser of brokered certificates of deposit of the bank. We have previously set out the facts surrounding this transaction. See Safeway Portland Employees’ Federal Credit Union v. C. H. Wagner & Co., 501 F.2d 1120 (9th Cir., 1974).

In its complaint in this ease the Credit Union principally alleges that the Federal Deposit Insurance Corporation (FDIC) violated Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), by aiding, abetting, and participating in a scheme to defraud the public in connection with the sale of the certificates. It prays for money damages. The Credit Union asserts that the FDIC is subject to suit under its “sue and be sued” authority and asserts jurisdiction under Section 22(a) of the Securities Act of 1933. The district court dismissed the complaint for lack of jurisdiction, finding that the Federal Tort-Claims Act (FTCA), 28 U.S.C. §§ 1346 (b), 2671-2680, is the exclusive remedy against the FDIC and that the Credit Union had failed to exhaust its administrative remedies as required by that Act. We affirm.

28 U.S.C. § 1346(b) vests the district courts with exclusive jurisdiction over civil actions for money damages against the United States “for injury . . . caused by the negligent or wrongful act or omission of any employee of the Government . . . .” 28 U.S.C. § 2679 states:

(a) The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.

The FDIC is clearly a federal agency and within the coverage of the FTCA. Davis v. FDIC, 369 F.Supp. 277, 279 (D.Colo., 1974); Freeling v. FDIC, 221 F.Supp. 955, 956 (W.D.Okl., 1962), aff’d per curiam, 326 F.2d 971 (10th Cir., 1963). Cf. FDIC v. Glickman, 450 F.2d 416, 418 (9th Cir., 1971). The FTCA should therefore be the exclusive remedy for tort claims against it. The Credit Union, however, points to 28 U.S.C. § 2680(h) which provides that the FTCA “shall not apply” to certain intentional torts including misrepresentation and deceit. It then argues that these torts are not “cognizable” within the meaning of 28 U.S.C. § 2679(a) and that therefore, on the claims urged here, the “sue or be sued” authority of the FDIC is not altered by the FTCA. Essentially the same argument was made and rejected in Edelman v. Federal Housing Authority:

Appellant seeks to avoid the statutory policy of governmental immunity clearly established in the Federal Tort Claims Act, 28 U.S.C. § 2680, by several arguments directed toward excluding the facts of this case from the operation of the Act. None of these claims can be accepted. First, he argues that since fraud constitutes an exception to Section 1346 (b), it is not, in the language of the exclusivity clause, ‘cognizable under section 1346(b).’ But that provision is a broadly drafted jurisdictional statute and all tarts are ‘cognizable’ within its scope. See Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 (1956); Aleutco Corp. v. United States, 244 F.2d 674 (3 Cir. 1957); Heyer Products Co. v. United States, 140 F.Supp. 409, 135 Ct.Cl. 63 (1956). However, under Section 2680 the United States has not consented to be sued for certain specified tortious conduct, including the intentional torts here alleged, and there is no basis for applying the exception more narrowly than the Act itself. Indeed, it defies common sense to argue that the intent of Congress was that while remedies for negligent torts had to be pursued subject to the limitations of the FTCA, remedies for intentional torts could be obtained outside of these limitations even though as to most agencies such suits were barred altogether. Such reasoning has been held fallacious in the past. Freeling v. Federal Deposit Insurance Corp., 221 F.Supp. 955 (W.D. Okl.1962), aff’d, 326 F.2d 971 (10 Cir. 1963).

382 F.2d 594, 597 (2d Cir., 1967).

The legislative history is in accord with this “common sense” approach:

This section will place torts of ‘suable’ agencies of the United States upon precisely the same footing as torts of ‘nonsuable’ agencies. In both cases, the suits would be against the United States, subject to the limitations and safeguards of the bill; and in both cases the exceptions of the bill would apply either by way of preventing recovery at all or by way of leaving recovery to some other act, as, for example the Suits in Admiralty Act. It is intended that neither corporate status nor ‘sue and be sued’ clauses shall, alone, be the basis for suits for money recovery sounding in tort.

S.Rep. 1400, 79th Cong., 2d Sess., at 33 (emphasis added). The purpose in making the FTCA an exclusive remedy was to permit suit against the United States on certain claims and to prevent suit on those claims, such as misrepresentation and deceit, which were excluded. See, Edelman v. FHA, supra; Goddard v. District of Columbia Redevelopment Agency, 287 F.2d 343 (D.C. Cir.), cert. denied 366 U.S. 910 (1961); Mullins v. First Nat’l Exch. Bank of Va., 275 F.Supp. 712 (W.D.Va.1967); Freeling v. FDIC, supra; Jayson, Handling Federal Tort Claims, § 175.02 n. 6 (1974). The “sue or be sued” clause cannot therefore support jurisdiction of a money damages claim against the FDIC when, as here, the alleged act is in the nature of deceit.

The Credit Union further contends that the Securities Act of 1933 itself constitutes a waiver of sovereign immunity and supports jurisdiction. It points out that the anti-fraud section, 15 U.S.C. § 77q, applies to “any person” and that the Act defines “person” to include “a government or political subdivision thereof.” 15 U.S.C. § 77b(2). The Securities Act makes no reference to a specific waiver of immunity by the sovereign United States and we have been cited to nothing in the legislative history which would indicate such a purpose. Express statutory consent to suit is essential and will not be implied from statutes that omit all reference to the sovereign. Danning v. United States, 259 F.2d 305, 309 (9th Cir., 1958), cert. denied 359 U.S. 911 (1959). Moreover, statutes which are claimed to be waivers of sovereign immunity are to be strictly construed against such surrender. Bat Rentals, Inc. v. United States, 479 F.2d 43, 45 (9th Cir., 1973). See United States v. Sherwood, 312 U.S. 584, 590 (1941). Mere mention of “a government” in the definitional section of the Securities Act does not suffice as consent to suit.

This result is complemented by our reading of the FTCA. The Securities Act cannot be considered alone but must be fit “into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole.” Johansen v. United States, 343 U.S. 427, 432, 72 S.Ct. 849, 853, 96 L.Ed. 1051 (1952); Feres v. United States, 340 U.S. 135, 139, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Tort claims against the United States are governed by the FTCA and comprehensively treated therein. That Act specifically excludes claims based on deceit and misrepresentation. When Congress speaks clearly to bar the road to recovery, Appellants cannot enter through the back door by relying on the broad and ambiguous language of another act.

Judgment affirmed.

      . 12 U.S.C. § 1819 :
      Upon June 1C, 1933, the Corporation shall become a body corporate and as such shall have i>ower— . . . Fourth. To sue and bo sued, comx)lain and defend, in any court of law or equity, State or Federal. .

      . 15 U.S.C. § 77v(a) :
      The district courts of the United States shall have jurisdiction of offenses and violations under this subchapter and of all suits in equity and actions at law brought to enforce any liability or duty created by this title .

      . 28 U.S.C. § 2675(a) provides in pertinent part:
      (a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any emxdoyee of the Government while acting within the scope of his office or einX)loyment; unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.
      The Credit Union has not xiresented its claim to the FDIC.


author: CHOY, Circuit Judge:

text:
    Raymond SANTISTEVEN et al., Plaintiffs, v. DOW CHEMICAL COMPANY, a corporation, Defendant-Third Party Plaintiff-Appellant, v. KENNECOTT COPPER CORP., a New York Corp., and the Nevada Industrial Commission, Third Party Defendants-Appellees.
    No. 73-2639.
    United States Court of Appeals, Ninth Circuit.
    Nov. 14, 1974.

      Eugene J. Wait, Jr. (argued), Wait, Shamberger & Georgeson, Reno, Nev., for appellant.
    Roger L. Erickson (argued), Erickson & Thorpe, Reno, Nev., for appellees.
    Before CHOY and SNEED, Circuit Judges, and NEILL, District Judge.

       The Honorable Marshall A. Neill, Chief Judge, Eastern Washington, sitting by designation.

   OPINION

CHOY, Circuit Judge:

Raymond Santisteven, an employee of Kennecott Copper Corp., was seriously injured while using flake caustic soda manufactured by Dow Chemical Company. Workmen’s Compensation benefits were paid Santisteven under the Nevada Industrial Insurance Act, Nev. Rev.Stat. § 616.010 et seq. He then brought this action against Dow on theories of negligence and products liability based upon alleged mislabeling. Dow impleaded the employer for indemnity, claiming that Kennecott’s failures to properly instruct its employee and to provide a safe place to work were the sole proximate causes of the accident. The district court dismissed the third party complaint of Dow, reasoning that the Nevada Industrial Act insulated the employer from all liability except as to an employee under the Act. Dow appeals, and we affirm.

The lower court’s holding was premised on several provisions of the Act, typical of workmen’s compensation statutes, which define the tort immunity an employer receives in return for the levies he must pay to support the more automatic workmen’s compensation system. Section 616.270 is the most important and provides, in pertinent part:

1. Every employer within the provisions of this chapter, and those employers who shall accept the terms of this chapter and be governed by its provisions, as in this chapter provided, shall provide and secure compensation according to the terms, conditions and provisions of this chapter for any and all personal injuries by accident sustained by an employee arising out of and in the course of the employment.
3. In such cases the employer shall be relieved from other liability for recovery of damages or other compensation for such personal injury, unless by the terms of this chapter otherwise provided.

Section 616.265 repeats this theme:

1. No contract of employment, insurance, relief benefit, indemnity, or any other device, shall modify, change or waive any liability created by this chapter.
2. A contract of employment, insurance, relief benefit, indemnity, or any other device, having for its purpose the waiver or modification of the terms or liability created by this chapter shall be void.

In approaching a case of this sort, there are normally two distinct questions to answer. First, under what conditions will indemnity be permitted completely aside from any question about the workmen’s compensation statute? Always an express contract on indemnity is sufficient, but there is considerable dispute over the availability of indemnity where there is a supposed breach of a quasi-contract duty by a party or where the prospective indemnitor’s negligence is markedly more serious than that of the indemnitee (i. e., active vis-a-vis passive negligence). Perhaps because the Nevada decisions on this point are less than clear, the district court did not answer this first question. Instead, it proceeded to the second question: Assuming that the third party defendant is liable at common law for indemnity, is this liability extinguished by the applicable workmen's compensation statute? The second issue is the one posed by this appeal.

There are no Nevada cases on the issue. In general there is a substantial division of authority on whether exclusivity clauses immunize employers from third party suits for indemnification. However, most of those jurisdictions which permit indemnification in the face of an exclusivity clause do so on the ground that there has been a breach of an independent duty owed by the third party defendant to the third party plaintiff. Thus the employer is not indirectly being made liable to the employee in violation of the strictures of the workmen’s compensation statute. For example, in Blackford v. Sioux City Dressed Pork, Inc., 254 Iowa 845, 118 N.W.2d 559 (1962), the plaintiff, employed by a contractor engaged under a written contract to clean a meat-packer’s plant, sued the meat-packer for injuries sustained while cleaning a pork casing machine. The employer was impleaded by the packer on the allegation that it failed to properly instruct the employee as to safety. The court held that the Iowa workmens’ compensation statute was not a bar to the action because an agreement to perform the cleaning in a safe manner was implied from the contract.

Here, there is no particularized obligation running from Kennecott to Dow. In such a context, the division of authority referred to previously largely disappears; the vast majority of courts have concluded that third party suits are precluded by statutory exclusivity provisions. We think the Nevada courts would follow these cases.

Nevertheless, Dow strenuously argues that Kennecott does have an independent duty to avoid subjecting Dow to the risk of tort liability. That, however, turns indemnity on its head.

Dow’s liability arises because of a breach of a duty it owes to users of its products — in this instance, a worker. Assumably, Kennecott has also breached a duty owed to the same worker by its negligence. Under Dow’s theory, the whole burden of loss would be shifted whenever the employer was negligent in any way because the employer would have failed in its duty to extricate the third party from possible liability. Yet indemnity does not work in that way. In the absence of a specific legal relationship (e. g., master-servant) or contract-type obligation, indemnity is only proper when it is more just to shift the burden of loss — that is, usually when the indemnitor is somehow more at fault. Indeed, the quasi-contract cases where promises to indemnify are implied rest on the same foundation; underlying the stated and largely fictional contract rationale is the feeling that it is just to shift financial responsibility. What triggers the indemnity, then, is not any abstract duty owed the third party employee ; indemnity is allowed because the employer’s transgression is more serious than the third party’s. But if it is in reality a liability of employer to employee that supports indemnification, that is exactly the type of liability which the Nevada Act extinguishes.

A second reason for affirming here is the greater familiarity with Nevada law possessed by Judge Thompson, who sat on this case below. It has been said repeatedly that in predicting the inclination of state courts, we should accord the local judge’s opinion considerable weight. E. g., Mesa Oil Co. v. Business Men’s Assurance Co., 476 F.2d 491, 494 (9th Cir. 1973); Insurance Co. of North America v. Thompson, 381 F.2d 677, 681 (9th Cir. 1967).

Finally, it is usually argued that the major cost of insulating the employer from liability is that it places an undue share of the burden on the shoulders of the third party. This results because the insurer (or employer or, in Nevada, the state commission is normally subrogated to the employee’s rights versus the third party to the extent of the workmen’s compensation benefits that may have been paid the employee. Consequently, the third party must bear the entire loss, even that portion ordinarily borne by the employer through workmen’s compensation and even though the employer’s negligence may have played a greater role in bringing about the employee’s injuries. That is not true of the Nevada statute as interpreted by the district court. In a portion of the decision not here appealed, the court held that the employee’s tort recovery from the third party would be reduced by- the amount he received in workmen’s compensation benefits. Because some load sharing thereby occurs, the harshest feature ordinarily inhering in the denial of indemnity is eliminated.

Affirmed.

      . See also § 616.370 which provides, in part: 1. The rights and remedies provided in this chapter for an employee on account of an injury by accident sustained arising out of and in the course of the employment shall be exclusive, except as otherwise provided in this chapter, of all other rights and remedies of the employee, his personal or legal representatives, dependents or next of kin, at common law or otherwise, on account of such injury.

      . See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Co., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956); Larson, Workmen’s Compensation: Third Party’s Action Over Against Employer, 65 Nw.L.Rev. 351, 410 (1970).

      . E. g., Western Contracting Corp. v. Power Engineering Co., 369 F.2d 933 (4th Cir. 1966); Yearicks v. City of Wildwood, 23 N.J.Super. 379, 92 A.2d 873 (1952); Gibbs v. Carolina Power & Lt. Co., 265 N.C. 459, 144 S.E.2d 393 (1965); 2 A. Larson, Workmen’s Compensation § 76.41 (1974) (Section 76 of Professor Larson’s treatise is substantially the same as his article cited at note 2).

      . Compare Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965) and McDonnell Aircraft Corp. v. Hartmann-Hanks-Walsh Painting Co., 323 S.W.2d 788 (Mo. 1959) with Centraal Stikstof Verkoopkanter N.V. v. Walsh Stevedoring Co., 380 F.2d 523, 528-531 (5th Cir. 1967) and Golden Valley Elec. Ass’n. v. City Elec. Service, Inc., 518 P.2d 651 (Alaska 1974). See generally A. Larson, supra note 3, § 76.43(d) at 250.70-.73 and nn. 61-63.

      . See Wentworth v. Ford Motor Co., 88 Nev. 535, 501 P.2d 1218 (1972); Reid v. Royal Ins. Co., 80 Nev. 137, 390 P.2d 45 (1964).

      . Compare Lunderberg v. Bierman, 241 Minn. 349, 63 N.W.2d 355 (1954) and Westchester Lighting Co. v. Westchester Small County Estates Corp., 278 N.Y. 175, 15 N.E.2d 567 (1938) with Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 (1969), and Royal Indem. Co. v. Southern California Petroleum Corp., 67 N.M. 137, 353 P.2d 358 (1960). See generally A. Larson, supra note 3, § 76.43(d) at 250.70-.73, § 76.44 at 250.78-.83.

      . See cases cited at A. Larson, supra note 3, § 76.43(d) at 250.71 n. 61.

      . E. g., General Elec. Co. v. Cuban American Nickel Co., 396 F.2d 89 (5th Cir. 1968); United Air Lines, Inc. v. Wiener, 335 F.2d 379, 398-404 (9th Cir.), petition for cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964); Bertone v. Turco Products, Inc., 252 F.2d 726 (3d Cir. 1958); Peak Drilling Co. v. Halliburton Oil Well Cementing Co., 215 F.2d 368 (10th Cir. 1954); Slattery v. Marra Bros., 186 F.2d 134 (2d Cir. 1951); Central of Georgia Ry. v. Lester, 118 Ga.App. 794, 165 S.E.2d 587 (1968); Roberts v. American Chain & Cable Co., 259 A.2d 43 (Me.1969); Husted v. Consumers Power Co., 376 Mich. 41, 135 N.W.2d 370 (1965); Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768 (1953); City of Abilene v. Jones, 355 S.W.2d 597 (Tex.Civ.App.1962); A. O. Smith Corp. v. Associated Sales & Bag Co., 16 Wis.2d 145, 113 N.W.2d 562 (1962). See generally A. Larson, supra note 3, at § 76.44.

      . W. Prosser, Torts § 52 at 313 (4th ed. 1971).

      . [W]e shall assume that, when indemnitor and indemnitee are both liable to the injured person, it is the law of New Jersey that, regardless of any other relation between them, the difference in gravity of their faults may be great enough to throw the whole loss upon one. We cannot, however, agree that the result is rationally possible except upon the assumption that both parties are liable to the same person for the joint wrong. Slattery v. Marra Bros., 186 F.2d 134, 139 (2d Cir. 1951) (L. Hand, J.).

      . See Iowa Power & Lt. Co. v. Abild Construction Co., 259 Iowa 314, 326-327, 144 N.W.2d 303, 310-311 (1966); Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 563-564, 75 S.E.24 768, 771 (1953); Larson, supra note 2, at 419 (“When a purchaser buys a product, however, does lie make an implied contract with the manufacturer to use the goods in such a way as not to bring liability upon the manufacturer? This would be stretching the concept of contract out of all relation to reality.”)

      . Larson, supra note 2, at 352.

      . Tate v. Superior Court, 213 Cal.App.2d 238, 28 Cal.Rptr. 548 (1963); Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 565-566, 75 S.E.2d 768, 773 (1953).