author: BIGGS, Circuit Judge.

text:
    Francis Shunk BROWN 3rd Esq. Trustee in Bankruptcy for I. J. Knight Realty Corp., Appellant, v. PRESBYTERIAN MINISTERS FUND, a Pennsylvania corporation.
    No. 72-1431.
    United States Court of Appeals, Third Circuit.
    Argued March 9, 1973.
    Finally Submitted May 30, 1973.
    Decided Sept. 7, 1973.

      Arthur E. Newbold, III, Dechert, Price & Rhoads, Philadelphia, Pa., for appellant.
    Bernard J. Smolens, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee.
    Before BIGGS, HASTIE and GIBBONS, Circuit Judges.
   BIGGS, Circuit Judge.

This is a suit brought by Francis Shunk Brown, 3rd, Esquire, Trustee in Bankruptcy for I. J. Knight Realty Corporation (Knight), against Presbyterian Ministers Fund, Inc. (Presbyterian) to recover $97,789.45, together with interest and costs for the benefit of the estate. The following facts are largely undisputed, appearing from the record or stipulated by counsel, or appearing from letters of counsel, or from admissions at a post-argument conference.

I.

In December, 1955, Presbyterian loaned Knight $200,000, secured by a mortgage on the latter’s sole physical asset, real estate known as the Fretz Building, located at 10th and Diamond Streets in Philadelphia. Between 1959 and 1962, Knight was in default in amortizing the mortgage, and when in September of 1962, Knight defaulted on the interest due as well, Presbyterian became mortgagee in possession.

The shares of stock of Knight were at this time held as follows: Nathan Hoffman, 325 shares; Jacob Hoffman (Nathan’s son), 150 shares; Marvin Hoffman (Nathan’s son), 112y2 shares; Seymour Hoffman (Nathan’s son), 112V2 shares. Nathan Hoffman was President of the corporation and Seymour Hoffman was Secretary. Both Nathan and Seymour were directors.

On November 16, 1962, when the principal balance remaining on the mortgage was $149,000, Presbyterian agreed to sell the mortgage to Nathan Hoffman for $65,000. This agreement was entered into with the knowledge and approval of all of Knight’s officers, directors, and shareholders. Later on that same day, Knight filed a petition in bankruptcy stating that the corporation was unable to meet its debts as they matured and proposing an Arrangement pursuant to Chapter XI of the Bankruptcy Act. Brown was appointed Receiver and authorized by then District (now Circuit) Judge Van Dusen to conduct the business of Knight. Still later on the same day, Presbyterian gave to Seymour Hoffman a letter reflecting the agreement and acknowledging receipt of $2,500 on account of the $65,000. An additional $2,500 was to be paid no later than November 26, 1962, and settlement was to be made by January 15, 1963. Presbyterian knew of Knight’s bank-ruptey petition and that Nathan and Seymour Hoffman were officers and shareholders of Knight. Receiver Brown, on the other hand, was unaware of the agreement between Presbyterian and the Hoffmans.

On November 26, 1962, Presbyterian acknowledged receipt of another $2,500 payment from Seymour Hoffman toward the purchase price.

On January 1, 1963, the Fretz Building was totally destroyed by fire. With the advent of insurance proceeds (which amounted to $800,000), Presbyterian deemed itself to be in an excellent position to receive full payment on its mortgage loan if it could avoid its contractual commitment to settle the mortgage for $65,000. J. B. Millard Tyson, Esq., attorney for Presbyterian, testified at an October 16, 1963 hearing before the Referee in Bankruptcy that “[t]hen on the first of January the fire occurred. I promptly told Mr. Hoffman that the basis for having given him this agreement was now over. We did not intend to go through with any sale of the mortgage. * * * So the letter [of November 16, 1962, from Presbyterian to Seymour Hoffman] was still outstanding, but we refused to go through with it. The Ministers’ Fund discussed it and decided the purpose was to take this white elephant off our hands, and now we would just be exchanging really two and a half dollars for one dollar. So we wouldn’t go through with it at that point.” On May 13, 1963, in consideration of the return of the $5,000 “and other considerations,” Nathan and Seymour Hoffman agreed to and purported to release Presbyterian from its obligation to sell the Hoffmans the mortgage.

On May 14, 1963, Knight was declared bankrupt and Receiver Brown was elected Trustee of the bankrupt corporation. Brown was still not aware at this time of the contract to purchase the mortgage, nor its purported cancellation. An insurance settlement of $800,000 was reached with the insurers, Lloyd’s of London and other British companies, and on August 23, 1963, Brown petitioned the bankruptcy court for leave to compromise the insurance claims. Hearings were held on this matter on October 16, October 28, and November 7, 1963, and it was then that Brown first learned of the Presbyterian-Hoffman deal and its purported recision. Thereafter, on February 3, 1964, Brown filed an Amended Petition for Leave to Compromise Claim stating in part:

* * * 6. As a result of testimony adduced at the hearings referred to in paragraph 2 of this petition, your Petitioner now claims an interest in the mortgage on the premises formerly occupied by the Fretz Building, which mortgage is now held in the name of the Presbyterian Ministers’ Fund and also claims an interest in the proceeds of insurance payable under the mortgagee payable clause in policy of insurance No. 88872. [Emphasis added.]
7. Against this background the British Carriers have agreed to pay the full compromise figure of $800,000.00 to your Petitioner upon the following terms and conditions:
(c) That Presbyterian Ministers’ Fund release all claims which it may have against the British Carriers under insurance policy No. 83872.
8. * * [T]he Presbyterian Ministers’ Fund refuses to give such a release to the British Carriers unless it is paid the current amount due on such mortgage or unless some other arrangement is made which' will insure that it will be paid in full in the event that your Petitioner is unsuccessful in asserting his claim with respect to said mortgage, or in the event that his claim becomes moot.
9. Your Petitioner is informed and therefore avers that the British Carriers will not proceed with the proposed compromise unless it receives a release from the Presbyterian Ministers’ Fund.
10. In order to effectuate the proposed compromise your Petitioner proposes to enter into an agreement subject to the approval of this court, with Presbyterian Ministers’ Fund and the British Carriers pursuant to which Presbyterian Ministers’ Fund will release all claims which it may have against the British Carriers under insurance policy No. 83872. The proposed agreement, a copy of which is attached hereto as Appendix A, provides in substance that Presbyterian Ministers’ Fund will give a release to the British Carriers, the British Carriers will pay $800,000.00 to your Petitioner out of which your Petitioner will pay to Presbyterian Ministers’ Fund $149,000.00 plus interest at the rate of six per cent from September 8, 1962 to the date of payment together with a $7.00 satisfaction fee, such payment being without prejudice to your Petitioner’s right to maintain a plenary action against the Presbyterian Ministers’ Fund in the United States District Court for the Eastern District of Pennsylvania on any claim your Petitioner may have which arises or in any way grows out of certain letters attached to the proposed agreement (Appendix A) as Exhibits A and B, it being further understood and agreed that your Petitioner shall have the same rights against the Presbyterian Ministers’ Fund with respect to said claim as he would otherwise have if such payment had not been made. Presbyterian Ministers’ Fund has agreed to consent to the jurisdiction of the United States District Court for the Eastern District of Pennsylvania in any plenary action brought by your Petitioner with respect to said claim.
11. The proposed agreement described in the preceding paragraph of this petition will avoid protracted litigation with respect to the proper tribunal in which your Petitioner’s claim should be heard and will also protect the debtor’s estate from incurring additional interest liability in the event that your Petitioner is unsuccessful in asserting his claim against the Presbyterian Ministers’ Fund, or in the event such claim becomes moot.
12. Your Petitioner believes and therefore avers that it is in the best interest of the bankrupt estate and its creditors to conclude settlement with the insurers under policy No. 83872 upon the foregoing terms and conditions.
WHEREFORE your Petitioner prays that he be authorized:
(i) to accept the sum of $800,000.00 in full accord and satisfaction of his claims against the Underwriters at Lloyd’s, London and the British Companies under policy No. 83872; * * *
(iii) To enter into the proposed agreement attached to this petition as Appendix A and, in accordance with and subject to the terms and conditions of said agreement, to pay to the Presbyterian Ministers’ Fund $149,000.00 plus interest at the rate of six per cent from September 8, 1962, to the date of payment plus a $7.00 satisfaction fee.

Referee Curtin’s order, dated March 3, 1964, authorized execution of the agreement referred to in the above petition and the releases required by the insurers. The agreement between Brown, Presbyterian, and the British Carriers was itself executed on March 23, 1964, pursuant to which the British Carriers paid Brown $800,000 and Brown paid Presbyterian $162,789.45 (which sum represented $149,000 for the unpaid principal balance of the mortgage plus interest on that amount at the rate of six per cent per annum from September 8, 1962, to the date of payment). Paragraph 3 of the agreement was as follows:

The Fund agrees with Trustee that Trustee’s aforesaid payment to the Fund shall be without prejudice to Trustee’s right at anytime within six years following the date hereof to maintain in the United States District Court for the Eastern District of Pennsylvania a plenary action against the Fund on any claim Trustee may have which arises or in any way grows out of the letters attached to this agreement as Exhibits A and B, it being further understood and agreed that Trustee shall have the same rights against the Fund with respect to said claim as he would otherwise have if such payment had not been made. The Fund further agrees that upon the institution of such action in the United States District Court for the Eastern District of Pennsylvania it will consent to the jurisdiction of that Court over the Fund and such action. (Emphasis added.)

The suit at bar, of course, is the plenary action referred to in Paragraph 3. At the time when the Trustee learned of the agreement between Hoffman and Presbyterian, viz., October or November of 1963, and for the period thereafter, the Trustee believed that the assets in the estate would be sufficient to pay the creditors of Knight Realty, and that therefore there would be no need to pursue the claim relating to the Hoffmans’ contract to purchase the mortgage. However, on June 3, 1968, after the Supreme Court’s decision in Reading Co. v. Brown, 391 U.S. 471, 88 S.Ct. 1759, 20 L.Ed.2d 751 (1968) which rendered the estate subject to liability for fire damage claims in an amount in excess of $3 million, it became clear that the assets in Knight’s estate would not be enough to pay all creditors in full, and the Trustee at that time determined that he must bring his suit.

In essence, Trustee Brown is seeking to enforce Presbyterian’s agreement to sell the mortgage to Nathan Hoffman. The legal theory asserted, as accurately stated by the district court, is that Presbyterian’s “offer of sale constituted a corporate opportunity available to Knight; that Nathan Hoffman’s acquisition of that opportunity constituted a breach of his fiduciary duty to act in good faith for the best interest of Knight as one of its officers; that the corporation, through the Trustee, is entitled to impress a constructive trust upon ‘the deal’; and that, although the agreement was terminated before the Trustee asserted any claim to it, the corporation is entitled to its specific performance in order to conserve the res of the constructive trust.” 340 F.Supp. at 750. The $97,789.45 sought by Brown constitutes the difference between the $162,789.45 paid to Presbyterian on the mortgage and the $65,000 price for which Presbyterian had agreed to sell the mortgage to Nathan Hoffman.

Judge Hannum rendered summary judgment in favor of Presbyterian on the following basis:

By way of defense, the [Presbyterian] Fund first argues that Hoffman’s agreement to purchase the mortgage at a discount was not a corporate opportunity because the corporation was insolvent and unable to avail itself of the opportunity. Second, assuming that a corporate opportunity did exist, the Fund argues that Hoffman never usurped it for the acquisition was with the full knowledge and approval of the corporation. Third, the defendant asserts that even if Hoffman did breach a fiduciary duty owed to the corporation, no cause of action lies against the mortgagee as an innocent third party owing no fiduciary duty to the corporation. Without intimating a view as to the first and third arguments, this Court finds the second to be dispositve of the case.
Like the business corporation laws of other states, Pennsylvania imposes a fiduciary obligation upon corporate officers to act in good faith for the best interest of the corporation they serve. In Pennsylvania it is clear that corporate officers may not usurp opportunities available to the corporation. Lutherland, Inc. v. Dahlen (1947), 357 Pa. 143, 151, 53 A.2d 143, 147. In this regard, it has been held that the availability of a corporate debt for purchase at a discount constitutes a ‘corporate opportunity’. Weissman v. Weissman, Inc. (1953), 374 Pa. 470, 97 A.2d 870. So also, it is clear that if a corporate officer, in breach of his fiduciary duty personally acquires property constituting a corporate opportunity, that property may be subject to a constructive trust for the benefit of the corporation. Weissman v. Weissman, Inc., supra; Bailey v. Jacobs (1936), 325 Pa. 187, 194-195, 189 A. 320. Recognizing, therefore, the existence of a corporate opportunity in the present case, and assuming arguendo that the corporation was capable of seizing it, the question becomes whether there exists any circumstance under which a corporate officer may acquire such an opportunity for himself.
This Court regards the proposition that a corporation need not acquire all corporate opportunities presented to it as axiomatic. The fiduciary duty imposed upon corporate officers and directors requires them to disclose opportunities available to the corporation. Once aware of the opportunity the corporation may seize or ignore it. If the directors and shareholders, once aware of its existence, consent to the acquisition of an opportunity by an officer or director, the opportunity ceases to be corporate and the fiduciary is free to acquire it personally. See Weissman v. Weissman, Inc., supra, 374 Pa. at 475, 97 A.2d 870.
By stipulation in the present case the parties have agreed that Hoffman’s acquisition of the mortgage was with the ‘knowledge and approval of all of Knight's officers, directors and shareholders.’ In the view of this Court such corporate assent relieved Hoffman of any further fiduciary duties. Having breached no duty to the corporation, plaintiff has no cause of action. [340 F.Supp. at 750].

We cannot countenance such a narrow view of the scope of Hoffman’s fiduciary duty. As an officer, director, and principal stockholder of an insolvent corporation (as well as being its mind, hands and pockets), Nathan ’Hoffman was duty bound to act “with absolute fidelity to both creditors and stockholders.” Drury v. Cross, 74 U.S. (7 Wall.) 299, 302, 19 L.Ed. 40 (1868). “While normally that fiduciary obligation is enforceable directly by the corporation, or through a stockholder’s derivative action, it is, in the event of bankruptcy of the corporation, enforceable by the trustee. For that standard of fidcuiary obligation is designed for the protection of the entire community of interests in the corporation — creditors as well as stockholders.” Pepper v. Litton, 308 U.S. 295, 307, 60 S.Ct. 238, 245, 84 L.Ed. 281 (1939). See also, McCandless v. Furland, 296 U.S. 140, 56 S.Ct. 41, 80 L.Ed. 121 (1935), Rabinovitz v. Oughton, 92 F.2d 297 (3 Cir. 1937), cert, denied, 303 U.S. 649, 58 S.Ct. 746, 82 L.Ed. 1110 (1939), and Teasdale v. Robinson, 290 F.2d 108 (8 Cir. 1961).

We decline to accept the position that approval by the shareholders, officers, and directors of a closely held corporation will free an officer thereof, acting with knowledge of the corporation’s insolvency and on the very morning of the institution of bankruptcy proceedings, to appropriate corporate opportunities (or, for that matter, any corporate assets) to the detriment of the corporation’s creditors. As Mr. Justice Cardozo most aptly stated in McCandless, supra, 296 U.S. at 157, 56 S. Ct. at 46, “The interests affected by approval will shape the power to approve.” The approval present in the case at bar cannot then render fair what is unfair to the creditors, for they are also a part of the corporation’s community of interest which the law seeks to protect. United Hotels Co. of America, Inc. v. Mealey, 147 F.2d 816, 819 (2 Cir. 1945). These principles are consistent with the prevailing rule in Pennsylvania, that “[i]f all the stockholders of the corporation consent, and it is not detrimental to creditors, officers may appropriate corporate assets.” Stony Brook Lumber Co. v. Blackman, 286 Pa. 305, 309, 133 A. 556, 557 (1926), ((quoting 2 Fletcher Cyc. Corp. (1st Ed.) § 2507). (Emphasis added.) While most business opportunities may not be advantageous to a corporation or its creditors when the corporation is in bankruptcy and is no longer a going concern, certainly the opportunity to purchase its debts at a discount is of substantial benefit to the corporation and especially its creditors at that time. Moreover, where, as here, a corporation is undergoing Arrangement pursuant to Chapter XI, the opportunity to settle its secured debts at a discount is of significant advantage to the corporation and particularly its unsecured creditors, for assets are thereby freed toward the satisfaction of unsecured debts. We therefore cannot agree with the holding below that the corporate assent here relieved Nathan Hoffman of any further fiduciary duties. The opportunity should have been disclosed to the receiver as representative of the creditors.

Presbyterian contends that the grant of summary judgment in its favor can be upheld on the alternative ground that no cause of action lies against it as an “innocent” third party owing no fiduciary duty to the corporation. It places reliance on that part of Irving Trust Co. v. Deutsch, 73 F.2d 121 (2 Cir. 1934), cert, denied, 294 U.S. 708, 55 S.Ct. 405, 79 L.Ed. 1243 (1935), which held that defendant Reynolds & Co. was not liable for profits which the directors of Acoustic had derived from purchasing a “corporate opportunity” of Acoustic from Reynolds & Co. The court there stated, 73 F.2d at 125, “ * * * Reynolds & Co. had the right to sell to whomever it could * * *. No right of Acoustic was violated in so doing * * *. Since it received no benefit from the transaction aside from completing the sale of the stock and there is no proof that it acted in a conspiracy to deprive Acoustic of a valuable asset, it cannot be held to an accounting.”

This reliance on Irving Trust Co. is misplaced, for unlike the plaintiff in that case, Trustee Brown does not seek to hold the seller (Presbyterian) of a “corporate opportunity” liable for profits made by the buyer-fiduciary (Hoffman). Rather, Brown is attempting to enforce the buyer-fiduciary’s purchase. While the seller (Presbyterian) may have had a right to sell to whomever it could and owed no duty to the buyer-fiduciary’s corporation (Knight), such principles are totally irrelevant to the questions concerning the enforceability of the sale when made.

Another alternative ground urged by Presbyterian in support of the grant of summary judgment concerns the financial inability of Knight to have availed itself of the opportunity to purchase the mortgage at a discount. This argument, however, assumes facts not presently in the record. Whether Knight could not have obtained the necessary funds or credit to have entered into an agreement to purchase the mor-tage presents an issue of fact which must be determined by the District Court on remand.

II.

The parties argued the case in the court below without reference to any cogent provision of the Bankruptcy Act and the learned District Judge decided the ease without benefit of any provisions of the Act. We think additional grounds other than those argued below must be considered if justice is to be done. Bankruptcy courts are courts of equity. Having the foregoing in mind, we will express our views as fully as we think is permissible at this state of the proceedings.

We have repeatedly stated that we can consider the record only as it existed at the time the court below made the order dismissing the action. Williams v. Murdoch, 330 F.2d 745 (3 Cir. 1964), note 3 cited to the text. See Dictograph Products Co. v. Sonotone Corporation, 230 F.2d 131, 231 F.2d 867 (2 Cir. 1956), appeal dismissed by stipulation, 352 U.S. 883, 77 S.Ct. 104, 1 L.Ed. 2d 82 (1956). As we have said, however, we cannot decide all the issues on this record nor can we bind the court below on any statement of facts as set out hereinbefore. We are not a fact-finding body for that duty rests with the district court to whom this case will be remanded. The district court also must determine the applicable law. We think, however, it is appropriate for us to point out certain principles which may determine the issues.

As we have indicated and as we here reiterate, precisely, the asset which Trustee Brown seeks to claim for the estate by way of the corporate opportunity doctrine is the executory contract to purchase the mortgage from Presbyterian. In this regard we note the requirement of Section 70(b) of the Bankruptcy Act as it existed at the time here relevant, 11 U.S.C. § 110(b) (1964 Ed.), for Brown to have “assumed” the execu-tory contract within the time limits specified. Otherwise his claim to the contract must fall victim to the conclusive statutory presumption that he rejected the contract. Section 70(b), as it was at the time of the transactions involved herein, 11 U.S.C. § 110(b) (1964 Ed.), read in pertinent part as follows: “(b) The trustee shall assume or reject an executory contract, including an unexpired lease of real property, within sixty days after the adjudication or within thirty days after the qualification of the trustee, whichever is later, but the court may for cause shown extend or reduce the time. Any such contract or lease not assumed or rejected within that time shall be deemed to be rejected. If a trustee is not appointed, any such contract or lease shall be deemed to be rejected within thirty days after the date of the order directing that a trustee be not appointed. A trustee shall file, within sixty days after adjudication or within thirty days after he has qualified, whichever is later, unless the court for cause shown extends or reduces the time, a statement under oath showing which, if any, of the contracts of the bankrupt are executory in whole or in part, including unexpired leases of real property, and which, if any, have been rejected by the trustee * * *.”

Assuming arguendo, and this question is also one for the district court to decide, that the time period within which the contract must be assumed would not begin to run until the trustee first learned of the contract’s existence, which seemingly occurred on October 16, 1963, it is critical whether the trustee thereafter complied with Section 70(b). It appears that the first written assertion of a claim to the mortgage by Trustee Brown was on February 3, 1964, when Brown filed the Amended Petition for Leave to Compromise Claim. But the Act does not provide any formal manner in which the trustee shall make the assumption, and the assumption of an executory contract may be shown by acts or oral statements of the trustee as well as by formal written declaration. Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82 (8 Cir. 1968); In re Public Ledger, Inc., 161 F.2d 762, 765, n.l (3 Cir. 1947). See also In re Forgee Metal Products, Inc., 229 F.2d 799 (3 Cir. 1956), and In re McCormick Lumber and Mfg. Corp., 144 F.Supp. 804 (D. Or.1956). Such conduct and oral statements may have occurred, for example, at negotiations which took place between the parties subsequent to the November 7, 1963 hearing before Referee Curtin, culminating in the agreement dated March 23, 1964. But the record does not reveal what transpired at these negotiations or whether, to what extent, if any, and when Trustee Brown asserted ownership of the contract to purchase the mortgage. It will be the duty of the trial court upon remand to explore this situation and make appropriate findings of fact and conclusions of law.

We further point out that the rights of the plaintiff to bring this suit were preserved for six years following the date of the March 23, 1964 agreement. Thus the rights as of March 23, 1964 were preserved. But what were those rights on that date, a considerable period of time past the date of the trustee’s knowledge of the existence of the execu-tory contract? Unless the trustee assumed the contract as required by Section 70(b), it may appear that he no longer had rights in the executory contract to preserve.

The foregoing appear to be questions and issues which lurk in this case. There may be others unrecognized by us which are as cogent. We think we are entitled to a full examination of them by the district court or to such of them as the learned District Judge deems pertinent. He need not limit his inquiries to the issues or questions which we have raised. Indeed, he should not do so. The instant case is indeed one of great complexity.

The judgment of the district will be vacated and the case remanded to the end that the trial court may receive such further evidence as may be relevant and take further proceedings not inconsistent with this opinion.

      . Following the argument in this court, in an attempt to supplement the record in the hope of disposing of the issues in this case on this appeal, the present writer held a conference with the consent of the two other members of the court with a court reporter present, and interrogated counsel as to what he deemed to be relevant facts. The transcript of this conference has been placed with the record in this ease by direction of the court.

      . See letter of May 30, 1973 from Bernard J. Smolens, Esquire, counsel for Presbyterian, addressed to the Clerk of this Court.

      . See Stipulation of Facts, paragraph 8.

      . Paragraph 10 of the Stipulation of Facts provides: “Thereafter on November 16, 1962 defendant gave to Seymour S. Hoffman the letter attached hereto, made a part hereof and marked Exhibit ‘A’ reflecting the agreement referred to in Paragraph 8 hereof. At this time defendant knew of the filing of the aforesaid petition.”
      Exhibit A to Exhibit 1 of the complant provides:
      (Letterhead of)
      SCHNADER, HARRISON, SEGAL & LEWIS 1719 Packard Building Philadelphia 2
      November 16, 1962
      Mr. Saymour S. Hoffman, I. J. Knight Realty Corporation, 1001-15 Diamond Street, Philadelphia 22, Pennsylvania.
      Dear Mr. Hoffman:
      This is to acknowledge receipt of -a Treasurer’s check drawn on the Broad Street Trust Company payable to the Presbyterian Ministers’ Fund in the amount of $2,500.00. This check was given as a deposit on account of the purchase of the Bond, Warrant and Mortgage, dated December 8, 1955, from I. J. Knight Realty Corporation to the Presbyterian Ministers’ Fund. The purchase price is $65,000.00, and it is agreed that an additional deposit in the amount of $2,500.00 must be made no later than November 26, 1962. Settlement is to be made no later than January 15, 1963.
      As attorney for the Presbyterian Ministers’ Fund I am authorized to accept your offer on condition that the $2,500.00 deposit will be forfeited unless the additional $2,500.00 deposit is received by November 26, 1962, and unless settlement is completed no later than January 15, 1963. A further condition is that the Bond, Warrant and Mortgage are to be purchased under and subject to all presently existing liens and encumbrances and all expenses of the transfer of the Bond, Warrant and Mortgage to you or your nominee, including, but not limited to, Federal documentary stamps, notary and recording fees, are to be borne by you.
      Very truly yours, J. B. Millard Tyson Attorney for Presbyterian Ministers’ Fund
      JBMT :rti

      . Paragraph 12 of the Stipulation of Facts provides: “On or about November 26, 1962, defendant gave to Seymour S. Hoffman a letter attached hereto, made a part hereof and marked Exhibit ‘B’.”
      Exhibit B to Exhibit 1 of the complaint provides:
      (Letterhead of)
      SCHNADER, HARRISON, SEGAL & LEWIS 1719 Packard Building Philadelphia 2
      November 26, 1962
      Mr. Seymour S. Hoffman, 1001-15 West Diamond Street Philadelphia 22, Pennsylvania
      Dear Mr. Hoffman:
      This firm represents the Presbyterian Ministers’ Fund. On behalf of the Presbyterian Ministers’ Fund, I am authorized to acknowledge the receipt of a deposit in the total amount of $5,000.00 on account of your purchase of the Bond, Warrant and Mortgage, dated December 8, 1955, from I. J. Knight Realty Corporation to the Presbyterian Ministers’ Fund for the sum of $65,000.00. The Mortgage is on premises located at the northwest corner of Tenth and Diamond Streets, Philadelphia, and has been recorded in the Office of the Commissioner of Records for the City of Philadelphia in Mortgage Book C.A.B. No. 163, page 308. The original amount of the mortgage loan was $200,000.00, since reduced to $149,000.00, and bears interest at the rate of 5% per annum. Interest has been paid to September 8, 1962.
      Settlement must be made no later than January 15, 1963. Upon payment of the balance of the purchase price due and interest to the date of settlement, the Bond, Warrant and Mortgage will be assigned by the Presbyterian Ministers’ Fund to you or your nominee, under and subject to all existing liens and encumbrances.
      Very truly yours, J. B. Millard Tyson, Attorney for Presbyterian Ministers’ Fund.

      . Hearing Be: Petition by Trustee for Leave to Compromise Claims against Lloyd’s and Companies, Oct. 16,1963, at 42-44.

      . The “other considerations” for releasing Presbyterian from any obligation in respect to the mortgage are not specified. See Stipulation of Facts, paragraph 16. But it is noted that a $30,000 loan was made by Presbyterian to Seymour Hoffman at the time of the purported cancellation of the contract.

      . ORDER
      AND NOW, to wit, this 3rd day of March 1964, upon consideration of the Petition of Trustee for leave to Compromise Claim filed August 23, 1963, the objections, briefs, reports and evidence in respect thereto; upon consideration of the Trustee’s Amended Petition for Leave to Compromise Claim, after hearing thereon and on motion of SAMUEL MARX, ESQUIRE and DECHERT, PRICE & RHOADS, Attorneys for Petitioner, it is
      ORDERED AND DEGREED that the Trustee, Francis Shunk Brown, 3rd, be and he is hereby authorized and directed:
      (i) To accept the sum of $800,000.00 in full accord and satisfaction of his claims against the Underwriters at Lloyd’s, London and the British Companies on policy of insurance No. 83872;
      (ii) To pay therefrom to The First Pennsylvania Banking and Trust Company $2,621.38 plus accrued interest thereon, the balance owing upon premium financing arrangements ;
      (iii) To enter into an agreement with the Presbyterian Ministers’ Fund and the Underwriters at Lloyd’s, London and the British Companies on policy of insurance No. 83872, a copy of which agreement is attached as Appendix A to the Trustee’s Amended Petition for Leave to Compromise Claim and, in accordance with and subject to the terms and conditions of that agreement, to pay to Presbyterian Ministers’ Fund $149,000.00 plus interest at the rate of six per cent from September 8, 1962, to the date of payment together with a $7.00 satisfaction fee;
      (iv) To give proper releases and execute all documents incident to the foregoing.
      AND IT IS FURTHER ORDERED AND DECREED that payment by the Underwriters and the British Companies shall be effected within thirty (30) days after this Order becomes final and not subject to appeal; PROVIDED, HOAVEVER, that any obligation to make such payment shall be conditioned upon delivery of releases of all claims against the Underwriters at Lloyd’s, London and the British Companies on policy No. 83872 by Francis Shunk Brown, 3rd, Trustee ; I. J. Knight Realty Corp., bankrupt; and the Presbyterian Ministers’ Fund.
      /s/ THOMAS J. CURTIN, REFEREE
      Thomas J. Curtin, Referee.

      . In November, 1969, Trustee Brown petitioned Judge Ilannum for leave to commence a civil action against Presbyterian in keeping with the provisions of paragraph 3, and on the 20th day of November, 1969, Judge Han-num entered an order authorizing this suit which was duly filed on December 4, 1969. The day of the filing of the petition in November does not appear from the record.
      The reason for the delay was obvious. The Referee in Bankruptcy held that the estate would not be liable for Reading Company’s claim for fire damage. The District Judge reviewed the decision of the Referee and held, as did this Court, that the Referee’s order was proper. The Supreme Court reversed, thus setting up the possibility of substantial liability of the estate to the Reading Company. See, In re I. J. Knight Realty Corporation, 242 F.Supp. 337 (E.D. Pa.1965), 370 F.2d 624 (3 Cir. Court en banc, 1967) ; Reading Company v. Brown, 391 U.S. 471, 88 S.Ct. 1759, 20 L.Ed.2d 751 (1968).

      . The fact that Hoffman entered into the agreement to purchase the mortgage a few hours before the Chapter XI petition was filed, and therefore prior to the appointment of the receiver, does not free him from the obligation to have informed the receiver in view of his knowledge of the oncoming Chapter XI proceedings. That Hoffman was aware of the impending bankruptcy is indisputable because the Resolution to file the Chapter XI petition was adopted by the shareholders and signed by Hoffman as President of Knight on November 14, 1962.

      . An examination of the briefs filed in the District Court demonstrates the parties made no reference to any cogent provision of the Bankruptcy Act therein.

      . Additional questions, not presented to or considered by the trial court in the motions for summary judgment, have been raised in this court concerning the enforceability of the Hoffman-Presbyterian agreement. Such issues as whether the agreement lapsed when performance was not tendered by Nathan or Seymour Hoffman before January 15, 1963, as required by the contract, or whether Presbyterian first reneged on the deal, involve mixed questions of fact and law and should also be considered on remand by the district court.


source: Caselaw Access Project

author: PELL, Circuit Judge.

license: Public Domain

text:
    Juan MORAN, Plaintiff-Appellee, v. The RAYMOND CORPORATION, Defendant-Appellant.
    No. 72-1499.
    United States Court of Appeals, Seventh Circuit.
    Argued April 2G, 1973.
    Decided Sept. 14, 1973.

      Jerome H. Torshen, Robert A. Skir-nick, Robert J. Hourigan, Chicago, 111., for defendant-appellant.
    Charles J. Reed, Chicago, Ill., for plaintiff-appellee.
    Before MOORE, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.

       Senior Circuit Judge Leonard P. Moore of the Circuit is sitting by designation. United States Court of Appeals for the Second

   PELL, Circuit Judge.

Defendant, The Raymond Corporation (Raymond), appeals from a judgment for $250,000.00 entered on a jury verdict in favor of plaintiff, Juan Moran, on his complaint for personal injuries he had allegedly received while he was an employee of Central Steel'and Wire Company (Central).

Raymond manufactured a lift truck, known as a sideloader, which was designed to operate in narrow aisles. It differs from the standard fork lift truck, on which the load is carried fully beyond the front wheels in that, as the name sideloader indicates, the load-lifter is located on one side of the equipment and extends equidistant over the front and rear sets of wheels. At one end of the equipment there is located an operator’s cage with the controls inside. Moran had operated a sideloader at Central for approximately three months. On the night in question, he was in the process of returning a tray to a rack approximately eight or nine feet above the ground when some wire rods on the tray slipped therefrom. In attempting to correct this situation, Moran left the operator’s cage and first stood on the movable forks and eventually on a platform bélow the forks. Still not achieving the desired result, he attempted to lower the forks but rather than returning to the cage and while standing on the platform on the lift side of the equipment, he reached through an opening into the cage and pulled the control lever to lower the forks. Although he tried to bring his hand back quickly, it became stuck because of a bandage he had on his wrist. When the cross bar came down with a shearing action, Moran's right arm was seriously injured.

Moran’s complaint was based on both negligence and strict liability theories. Among Raymond’s defenses were that the lift truck was not defectively manufactured (and therefore could not be the basis of a strict liability in tort claim), that Moran had assumed the risk, and that Moran had misused the sideloader so as to bar recovery as a matter of law. The jury rejected all of the defenses and answered special interrogatories finding no assumption of the risk or misuse.

Initially we must decide whether or not we can review the sufficiency of the evidence in this ease. Defendant moved for a directed verdict at the close of plaintiff’s case and the district judge took the motion under advisement. There is no indication in the record that the motion was renewed in writing at the time the presentation of the evidence was completed. Rule 50, Fed.R.Civ.P., provides in part that “[a] party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made.” “Nevertheless, the courts have adhered to the longstanding rule that the introduction of evidence at that point constitutes a waiver of the objection to the sufficiency of the evidence unless the motion is renewed at the time when all the evidence is in. What this means is that after the moving party has offered evidence: (1) the motion cannot serve as a necessary predicate for a motion for judgment under Rule 50(b); and (2) it cannot serve as the basis for attacking the sufficiency of the evidence in the appellate court. And this doctrine would appear to be applicable though the motion at the close of the opponent’s case was reserved by the court rather than denied.” 5A Moore, Federal Practice 50.05[1], at 2341-2 (2d ed.). (Footnotes omitted.)

9 Wright & Miller, Federal Practice and Procedure: Civil § 2536, at 593 (1971), states basically the same doctrine as follows:

“It is thoroughly established that the sufficiency of the evidence is not reviewable on appeal unless a motion for directed verdict was made in the trial court. Indeed a motion at the close of plaintiff’s case will not do unless it is renewed at the' close of all the evidence nor will the appellate court review the sufficiency of the evidence if the trial court has denied a motion that does not state specific grounds.” (Footnotes omitted.)

In an affidavit filed with his reply brief in this court, counsel for Raymond states that during an in-chambers but off-the-record conference with the district court judge he informed the judge that he had a motion for a directed verdict at the close of all of the evidence that he would like to have filed. Judge Napoli assertedly replied that the ruling on that motion would be the same as the ruling he made concerning the earlier motion for directed verdict, namely, that he would take it under advisement and that the ultimate ruling on both motions would be the same. “Therefore, I did not file a written Motion for Directed Verdict at the close of all evidence.” Judge Napoli, however, is deceased and in a counter-affidavit counsel for the plaintiff denies he was present at the purported conversation in chambers with the judge relating to a motion for a directed verdict at the close of all of the evidence. Defense counsel in his affidavit had indicated he was not certain whether plaintiff’s counsel had heard the colloquy concerning a possible final motion for directed verdict.

The issue of whether we should consider this appeal as though a motion for directed verdict had been made at the close of all of the evidence becomes a close question because neither in argument on the defendant’s post-trial motion, nor at any other time in the district court, did the plaintiff raise the question of lack of filing of this motion. Instead, at the time of the argument in the district court, plaintiff’s counsel stated:

“Under the applicable rules, the grounds for seeking a judgment notwithstanding the verdict must be identical and not expansive over theirs which were asserted in the motion for directed verdict at the close of the plaintiff’s case, at the close of all the evidence, and upon which the Court has ruled on the 11th of April of this year.”

We do not view favorably the raising of an issue, particularly a technical one, for the first time on appeal. On the other hand, it is incumbent on counsel to make the record in the district court as to issues he wishes to present on appeal.

Raymond relies on two cases to support its contention that we are not foreclosed from examining the evidence in this case. In United States v. 353 Cases, 247 F.2d 473 (8th Cir. 1957), the Government had brought a condemnation action against allegedly misbranded mineral water. At the close of the defendant’s case the Government moved for a directed verdict, which was not granted. The Government called two rebuttal witnesses and the claimants called one surrebuttal witness. None of these witnesses testified concerning the grounds for the motion for a directed verdict. The Government failed to renew the motion at the close of all of the evidence and the district court subsequently denied judgment notwithstanding the verdict relying, in part, on the failure to renew the motion for a directed verdict. The Eighth Circuit reversed, stating:

“We think that as a practical matter the Government did all that was necessary to preserve for review the question whether it was entitled to a directed verdict. This Court, moreover, in the public interest and to guard against injustice, may, of its own motion, notice errors which have not been properly preserved for review, if such errors are obvious, or if they otherwise seriously affect the fairness and integrity of the judicial proceedings.” 247 F.2d at 477.

While not unmindful of the pragmatic values reflected in the above language, we also note that the exception carved out is most narrowly stated and is certainly based in part on the fact that the rebuttal witnesses testified only on collateral issues.

The second case on which Raymond relies is Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968 (1st Cir. 1969). The case is somewhat similar to the one before us. The defendants had moved for a directed verdict at the close of the plaintiff’s ease and the district court had reserved its ruling. Defendants then submitted eight exhibits, none of which dealt with the issue of negligence or contributory negligence, but failed to renew their motions for directed verdicts. The court held that the defendants had not waived their right to move for judgment notwithstanding the verdict. The court relied on two factors. First, the district court itself showed that it felt that the defendants had preserved their point:

“In a sense the court may well have led counsel reasonably to believe that all had been done that was necessary. . This factor alone would be of no avail to appellants had the evidence subsequently presented been previously unrevealed, lengthy, or relevant to the issues raised by the motions for a directed verdict. [Citation omitted.] But this part of the trial occupying only two pages of transcript and involving no more than a few minutes, held no surprises.” 409 F.2d at 971-972.

The case before us is similar to McAn to the extent that there may have been implied assurances by the district court that the record was preserved. However, the defendant in the present case did introduce more than an inconsequential amount of testimony following its motion for a directed verdict at the close of the plaintiff’s case. Six witnesses, including the plaintiff as an adverse witness, testified. Their testimony covers 110 pages of the transcript.

In the First Circuit’s own construction of McAn in Gillentine v. McKeand, 426 F.2d 717, 722 (1st Cir. 1970), it was emphasized that McAn was based on the fact that the evidence introduced by the defendant subsequent to its motion for a directed verdict “could not conceivably alter the court’s decision on a motion for a directed verdict.”

Some status of ambivalency results from the emphasis on the extent of the evidence which comes in after the first motion for a directed verdict is overruled. On the one hand, if there is substantial evidence introduced by the defendant and the motion is not renewed, the trial judge may be deprived of the opportunity, which he should have, of determining whether there was a sufficiency of evidence, based on all of the evidence. “[T]he litigant who has not moved for a directed verdict in the trial court must have been of the view that the evidence made a case for the jury; he should not be permitted on appeal to impute error to the trial judge for sharing that view.” Little v. Bankers Life & Casualty Company, 426 F.2d 509, 511 (5th Cir. 1970). Also we are not unmindful that “ [i]t not infrequently happens that the defendant himself, by his own evidence, supplies the missing link. .” Bogk v. Gassert, 149 U.S. 17, 23, 13 S.Ct. 738, 740, 37 L.Ed. 631 (1893).

On the other hand, if on analysis the additional evidence, even though extensive, accomplishes what the defendant intended it should, i.e., strengthening his case without simultaneously exposing a flaw, little justification would seem to exist for finding significance in the quantitative aspect where the trial judge has reserved ruling on the first motion until after all evidence has been put in, and, at the time of ruling, the evidence and issues are no weaker from the viewpoint of the movant than those which would have been presented had the second motion been filed.

As a background for our further consideration of the narrow issue before us we note from our examination of the record that the defendant’s evidence did not aid plaintiff’s position that there was no assumption of risk. Indeed, when the plaintiff himself, as an adverse witness, was put on the witness stand, he admitted that when he had been instructed on how to run the machine, he had been told always to stand in the cage when operating the controls. He further stated that because he knew he would be hit if he did not get out of the way he had pulled the control fast and withdrawn his hand quickly.

We now turn to the procedural aspects of the record made in the district court to aid us in determining whether Raymond has forfeited the privilege of challenging the sufficiency of the evidence. We have already adverted to the statement made by plaintiff’s counsel which, inferentially at least, supports the premise that the district court judge did consider, when he finally overruled the motion for a directed verdict, that he was doing so on the basis of the sufficiency of all of the evidence.

On Friday, March 10, 1972, the plaintiff concluded his evidence and rested. Raymond’s motion for directed verdict was filed. The judge said he would reserve ruling on it until after he had heard argument. On the following Monday, March 13, 1972, as previously noted herein, the counsel for Raymond argued that there were sufficient facts to constitute assumption of risk as a matter of law. Counsel for Moran argued that the question was for the jury.

“THE COURT: [at the conclusion of the argument] All right. I am going to reserve my ruling. Let’s go ahead.”

At the conclusion of the evidence on March 13, the jury was excused and the judge had an unrecorded conference with counsel in chambers on instructions. It apparently was at this conference that the disputed colloquy concerning a final motion for directed verdict allegedly took place.

On the following day the court indicated it was going to go on the record in chambers with reference to the instructions “and everything we discussed after adjournment yesterday.” The ensuing discussion concerned which of the tendered instructions would be given and which would be refused.

Moran objected to the giving of an instruction tendered by the defense because he did not believe that misuse was properly an issue although he agreed that assumption of risk was.

“THE COURT: In our informal discussion last evening, outside the presence of the court reporter, we discussed these questions. The Court decided that both misuse and assumption of risk would be proper in this case. Therefore, the objection is overruled, and Defendant’s tendered Instruction No. 6 will be given.”

The record is not helpful at this point, therefore, in determining what exactly may have been said, if anything, at the unrecorded session on the matter of the filing of a final motion for a directed verdict. It is clear, however, that there was an informal, unreported session, that the original motion for directed verdict which had been filed and argued had never been ruled on, and that the issue of assumption of risk was to be submitted to the jury.

The jury reached a verdict on the date of submission of the cause to it. On March 28, 1972, the cause was continued to April 11, 1972, for further ruling. On the latter date, defendant’s motion for a directed verdict was denied and judgment was entered. On April 20, 1972, the defendant filed its motion for judgment notwithstanding the verdict or in the alternative for a new trial.

The following extracts are from that motion:

* * * * * •»
“ . . . and in support of this motion, in addition to those grounds stated in the Motion for Directed Verdict made at the close of all the evidence, states as follows:
♦X' # -X- * * *
11. As a matter of law, the plaintiff’s use of the product at the time of the occurrence with full knowledge that he was in a position of danger, that there was a safer method by which he could have performed the function he was trying to perform and that he nevertheless proceeded with knowledge of the danger, constitutes assumption of risk which will bar a recovery of the plaintiff.
* -X- * * * -»
16. The Court erred in failing to direct a verdict for the defendant either at the close of the plaintiff’s evidence or at the close of all the evidence.”

At the inception of the argument, the judge asked counsel for Raymond whether all of the argument had not already been heard. Counsel replied that while the primary discussion before had been concerning assumption of risk, the motion raised a number of other matters which hadn’t really been stressed before. After adverting to some of the new matters in the motion, counsel returned to an argument on assumption of risk. Counsel for Moran, addressing himself first to the motion for judgment n.o.v., objected to the consideration of any new matters not “asserted in the motion for directed verdict at the close of the plaintiff’s case, at the close of all the evidence, and upon which the Court has ruled on the 11th of April this year.” At no time was it suggested by counsel that the matter of assumption of risk was a new matter. Nor, more importantly, was there any intimation that the motion for judgment n.o.v. should not be entertained because a motion for directed verdict was not made at the close of all of the evidence. Yet, the authorities indicate that the filing of this motion at the completion of the evidentiary presentation is a requirement for consideration of the motion for judgment n.o.v. just as it is for appellate consideration of the sufficiency of the evidence on the denial of the motion for directed verdict, since the n.o.v. motion is technically only a renewal of the motion for directed verdict. 9 Wright & Miller, supra, § 2537, at 596-8.

However, it also appears well established that the courts take a liberal view of what constitutes a motion for directed verdict in deciding whether there was a sufficient prerequisite for the motion for judgment. Ibid, at 596-7. The standard for granting the n.o.v. motion is the same as for the directed verdict motion. Ibid, at 599. It appears to us that the rationale of the liberality referred to in the text, inter alia, flows from the fact that when the n.o.v. motion is filed in the district court, there has been a presentation to the trial judge of the reasons for taking the case from the jury.

While the record is scanty, and it would have been helpful to have known all that transpired in the off-the-record conference, we are satisfied that the contentions of the defendant that it was entitled to a determination that there was assumption of risk as a matter of law were adequately presented to the trial judge at the necessary time. To reach any other result would be to enshrine form over substance. Accordingly, we turn to a consideration of the sufficiency of the evidence for the purpose of determining the correctness of the district court’s denial of judgment notwithstanding the verdict.

Under Illinois law, which is controlling on this aspect of the case, Illinois State Trust Co. v. Terminal R.R. Ass’n of St. Louis, 440 F.2d 497, 500 (7th Cir. 1971), a judgment should be directed or entered n.o.v. “only in those eases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 514 (1967).

We do not have to determine whether Raymond is correct in its contention that its lift truck was not “defective” as that term is used to invoke the doctrine of strict liability in tort actions since we find it clear under the Pedrick test that Moran assumed the risk. The Illinois Supreme Court adopted the doctrine of strict liability in tort in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). In Williams v. Brown Manufacturing Co., 45 Ill.2d 418, 261 N.E.2d 305 (1970), the court held that simple contributory negligence, which would bar recovery by a plaintiff in a tort action based on negligence, would not preclude recovery in a suit based on a strict liability theory, 45 Ill.2d at 426, 261 N.E.2d 305.

The court held, however, “that a plaintiff who knows a product is in a dangerous condition and proceeds in disregard of this known danger (often termed ‘assumption of risk’) may not recover for resulting injuries.” 45 111.2d at 426, 261 N.E.2d at 309. The test which the jury was to apply was

“. . . whether a user has assumed the risk of using a product known to be dangerously defective is fundamentally a subjective test, in the sense that it is Ms knowledge, understanding and appreciation of the danger which must be assessed, rather than that of the reasonably prudent person (Restatement (Second) of Torts, § 496D, comment (c)), it must also be remembered that this is ordinarily a question to be determined by the jury. That determination is not to be made solely on the basis of the user’s own statements but rather upon the jury’s assessment of all of the facts established by the evidence. No juror is compelled by the subjective nature of this test to accept a user’s testimony that he was unaware of the danger, if, in the light of all of the evidence, he could not have been unaware of the hazard (Restatement (Second) of Torts, § 496D, comments (d) and (e)); and the factors of the user’s age, experience, knowledge and understanding, as well as the obviousness of the defect and the danger it poses, (Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 5 (1965), see Pitts v. Basile, 35 Ill.2d 49, 219 N.E.2d 472) will all be relevant to the jury’s determination of the issue, if raised.” 45 Ill.2d at 430-431, 261 N.E. 2d at 312. (Emphasis in original.)

This standard was reaffirmed by the Illinois Supreme Court in Sweeney v. Max A. R. Matthews & Co., 46 Ill.2d 64, 264 N.E.2d 170 (1970).

Although the test of assumption of risk is a subjective one, depending on the knowledge of the injured party, it is apparent that the question need not always go to the jury. The language in Williams, supra, that the defense of assumption of the risk ordinarily presents a question to be determined by the jury while permitting the jury to disbelieve the injured party’s testimonial denial of knowledge of the danger, even though the test is a subjective one, does not mean that a jury question is presented when the testimony is clear that he did know of the danger.

In Fore v. Vermeer Manufacturing Co., 7 Ill.App.3d 346, 287 N.E.2d 526 (3d Dist., 1972), the court affirmed the grant of summary judgment against the plaintiff when the plaintiff admitted in his deposition that he had had numerous past difficulties with the machine: “It appears to be clear that the plaintiff had actual knowledge of the danger; that he understood and appreciated the risk, and that he deliberately exposed himself to such risk, all while he was of full age, well experienced, with complete knowledge and understanding, of an obvious defect, and an obvious danger.” 287 N.E.2d at 527-528. A similar result was reached in the affirmance of a directed verdict at the close of the plaintiff’s evidence in Denton v. Bachtold Brothers, Inc., 8 Ill.App.3d 1038, 291 N.E.2d 229 (4th Dist., 1972). Plaintiff has provided us with no contrary citation of authority.

If we now turn to Moran’s own testimony and apply the Illinois standards for assumption of the risk, it becomes clear that Moran, on the testimony in this record, assumed the risk. Moran testified that he had been working at Central for approximately five months at the time of the accident. During the first two months he did not drive a side-loader. During the next three months, following a week of training including how to operate the machine, he had filled many orders daily, all with the help of a Raymond sideloader. Although at one point he testified that he had never been told not to operate the machine from outside the driver’s cage, he later admitted that he had been instructed to stand in the cage “when you are operating the controls.” He clearly knew that there was a substantial risk involved in working with the machine. Particularly, however, and most significantly, he recognized the danger in operating the machine in the way he was at the time he was injured since he testified that he knew the bar would hit him if he did not move out of the way: “That’s why I pulled the control fast and I withdrew the hand quickly.” The bar was about a foot and a half above his head when he pulled the lever to lower the forks.

While one who stands under the guillotine blade with knowledge of the fact that there will be a descent of the operational part upon activation of the controlling lever would scarcely seem to be in a position to claim that the blade fell faster than he anticipated, nevertheless, we find no support in the record for Moran’s contention that the lowering speed of the sideloader he had been operating for several hours at the time of the accident was greater than was that of the sideloader he had previously operated.

By way of summary, Moran, standing out of the operator’s cage in a position where he would be in the path of the equipment if it was caused to become operative, reached with some effort on his part into the control area and pulled the control lever down as far as it would go. He knew when he did that, the forks would start coming down and would go all the way to the bottom unless he pushed the lever back. This was clearly proven subjective evidence and the verdict, under the Pedrick test, cannot stand. Plaintiff argues that “[t]o say that Juan Moran consciously assumed the risk of his own injury would, under the circumstances, be to say that he intended to maim himself, or he was bent upon suicide.” This conclusion does not follow. What is clear is that Moran was in a hurry and that he took a calculated risk that he could get his hand out of the way before the forks hit him. Workmen often take risks which they should not take and are fortunate enough to avoid injury. In finding that Moran assumed the risk, we are not dealing with the waiver of a constitutional right designed to protect fair trial, cf. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), but rather with a hasty, but nonetheless knowing, decision. Obviously Moran, who had operated the machine from the front of the forks before without misadventure, thought he could do so again. But that is not the test applied in Illinois. The test, although subjective, relates to knowledge of the risk and not to whether it was a good risk. See Fore v. Vermeer Manufacturing Co., supra, and Denton v. Bachtold Brothers, Inc., supra.

For the reasons hereinabove set out, the judgment of the district court is reversed.

Reversed.

      . A further complication enters the picture at this point although not raised by the plaintiff. The written motion filed by defendant at the close of plaintiff’s evidence did not specify any grounds. However, counsel in argument to the court before introducing any evidence made it abundantly clear that the defendant was relying on assumption of risk and misuse. An Illinois case bearing on the defense of assumption of risk, Williams v. Brown Mfg. Co., 45 Ill.2d 418, 261 N.E.2d 305 (1970), was cited to the court. Although Rule 50(a), Fed.R. Civ.P., requires that the motion shall state the specific grounds, the “rule does not require technical precision in stating the grounds of the motion. . . . Although it is said that the better practice is for the motion to be in writing, the rule makes no such requirement and an oral motion on the record will suffice. An oral statement of grounds may save a written motion that is too general.” 9 Wright & Miller, supra, § 2353, at 580-1. (Footnotes omitted.) We hold, therefore, that the motion at the close of plaintiff’s evidence was sufficient under Rule 50(a).

      . The court also held that “plaintiffs who ‘misuse’ a product — use it for a purpose neither intended nor ‘foreseeable’ (objectively reasonable) by tlie defendant — may be barred from recovery.” 45 Ill.2d at 425, 261 N.E.2d at 309.


author: ROSENN, Circuit Judge.

text:
    LURIA STEEL & TRADING CORPORATION and Hyman-Michaels Company v. OGDEN CORPORATION et al. Appeal of OGDEN CORPORATION et al.
    No. 72-1309.
    United States Court of Appeals, Third Circuit.
    Argued April 23, 1973.
    Decided Sept. 6, 1973.

      Edward W. Mullinix, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellants.
    Herbert G. Keene, Jr., Stradley, Ro-non, Stevens & Young, Philadelphia, Pa.,
    H. Robert Halper, David R. Melincoff, O’Connor, Green, Thomas, Walters & Kelly, Washington, D. C., for appellee.
    Before VAN DUSEN, ALDISERT, and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

Plaintiffs, scrap metal dealers, brought an antitrust suit under Section 4 of the Clayton Act by which they sought treble damages for alleged violations commencing as early as 1946 of Sections 1 and 2 of the Sherman Act and Section 7 of the Clayton Act. Defendants sought by a motion for summary judgment to bar all claims for damages accrued before October 10, 1965, due to the running of the statute of limitations. The opinion and order of the United States District Court for the Eastern District of Pennsylvania, 336 F.Supp. 1238, rejected in general defendants-appellants’ motion and barred only damage claims accrued before January 1, 1952. The appeal challenges the district court’s disposition of that motion. We affirm.

I

Plaintiffs-appellees, Luria Steel & Trading Corporation and Hyman-Mi-chaels Company (“Luria”), filed a complaint in the district court on October 10, 1969, alleging violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and Sections 3 and 7 of the Clayton Act, 15 U.S.C. §§ 14 and 18. Defendants-appellants, the Ogden Corporation, three of its subsidiaries, and William J. Luria, moved for summary judgment barring all damages accrued more than four years before filing of the suit on the basis of the applicable four year statute of limitations provided by Section 4B of the Clayton Act, 15 U.S.C. § 15 b. In opposing the motion, Luria relied on Section 5(b) of the Clayton Act, 15 U.S.C. § 16(b), which suspends the running of the statute during the pendency of “any civil or criminal proceeding . . . instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws . . . and for one year thereafter.” Luria contended a Federal Trade Commission (F.T.C.) proceeding, pending from January 19, 1954, to October 14, 1968, suspended the running of the statute on the claims for which suit was begun October 10, 1969.

The Federal Trade Commission initiated proceedings on January 19, 1954, against scrap metal dealer and broker Luria Brothers & Company for violations of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, and Section 7 of the Clayton Act, 15 U.S.C. § 18. Two years later Luria Brothers was purchased by the defendant, Ogden Corporation. By stipulation, on March 9, 1956, the purchasing Ogden subsidiary, Luria Brothers & Co., Inc., was added as a respondent to the F.T.C. proceeding. The Commission found violations of F.T.C. Act § 5 and Clayton Act § 7 in 1962, Luria Brothers and Co., 62 F.T.C. 243 (1962); and this court affirmed, Luria Brothers & Co. v. Federal Trade Commission, 389 F.2d 847 (3d Cir. 1968). Luria Brothers was found to have violated F.T.C. Act § 5 by entering agreements with various steel mills which restrained trade and tended to create a monopoly and to have violated Clayton Act § 7 by acquisition of a competitor. 389 F.2d at 852. Luria Brothers appealed this- court’s finding of a violation of F.T.C. Act § 5, but not the finding of a violation of Clayton Act § 7. Certiorari was denied on October 14, 1968. 393 U.S. 829, 89 S.Ct. 94, 21 L.Ed. 2d 100 (1968).

The district court opinion in the present case, relying on this court’s opinion in New Jersey Wood Finishing Co. v. Minnesota Mining & Manufacturing Co., 332 F.2d 346, 359 (3d Cir. 1964), aff’d, 381 U.S. 311, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1965), determined that F.T.C. proceedings to enforce the F.T.C. Act cannot toll the statute of limitations, but F.T.C. proceedings to enforce the Clayton Act may. It therefore found the 1954 F.T.C. proceeding against Luria Brothers, in alleging Clayton Act § 7 violations, tolled the statute of limitations. It further held the statute was tolled until October 14, 1968, the date when certiorari was denied, even though only the F.T.C. Act violation was appealed from our decision.

In determining on what date the statute was originally tolled, the district court reasoned that F.T.C. proceedings could not have such an effect until January 1, 1956, the date on which various amendments to Section 5 of the Clayton Act became effective. The court thus barred all claims for damages accrued before January 1, 1952, four years before the statute was tolled. The district court refused to find the statute tolled on any other date for any of the named defendants on the grounds advanced that individuals cannot 'be sued under the Clayton Act or that the named corporate defendants were not in the scrap metal business when the F.T.C. proceeding began.

Defendants contend that the district court order cannot be sustained, because (1) as held by the district court, F.T.C. proceedings to enforce the F.T.C. Act do not suspend the running of the statute of limitations; and (2) contrary to the holding of the district court, F.T.C. proceedings begun in 1954 to enforce violations of the Clayton Act could not suspend the running of the statute. In support of the second contention, appellants rely on this court’s opinion in New Jersey Wood, supra, 332 F.2d at 348. They note that until 1959, when the Finality Act was passed by Congress, 73 Stat. 243 (1959), 15 U.S.C. § 21, Commission orders based on Clayton Act violations were not enforceable until approved by a court of appeals. They argue that before 1959, F.T.C. proceedings were therefore not “civil or criminal proceeding [s]” which under Section 5(b) of the Clayton Act suspended the running of the statute of limitations. And, they argue that passage of the Finality Act of 1959 did not transform proceedings begun before that time into “civil or criminal proceedings.” Federal Trade Commission v. Jantzen, Inc., 386 U.S. 228, 87 S.Ct. 998, 18 L.Ed.2d 11 (1967).

Plaintiffs contend that the statute was tolled in 1954 on the basis either (1) that F.T.C. proceedings to enforce the F.T.C. Act tolled the statute, or (2) F.T.C. proceedings to enforce the Clayton Act tolled the statute.

II

Consideration of whether the statute of limitations was tolled in 1954 by reason of the F.T.C.’s proceeding to enforce either F.T.C. Act § 5 or Clayton Act § 7 must begin with the Supreme Court's opinion in Minnesota Mining & Manufacturing Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1965). The holding of New Jersey Wood was that an F.T.C. proceeding begun in 1960, alleging violations of Clayton Act § 7, tolled the statute of limitations pursuant to Clayton Act § 5(b). The holding in New Jersey Wood does not necessarily control the present case because it did not deal with F.T.C. proceedings brought to enforce violations of the F.T.C. Act, nor did it deal with F.T.C. proceedings brought to enforce violations of the Clayton Act before 1959, i. e., before passage of the Finality Act.

The Supreme Court opinion, nonetheless, sheds light on the question whether F.T.C. proceedings to enforce the F.T.C. Act can toll the statute. The Court did not hint in any way that F.T.C. proceedings under the F.T.C. Act had any different tolling effect than those pursuant to the Clayton Act. The Court interpreted Clayton § 4B and its tolling provision in light of “the one element of congressional intention which is plain on the record — the clearly expressed desire that private parties be permitted the benefits of prior government actions.” 381 U.S. at 320, 85 S.Ct. at 1478. In further determining whether the F.T.C. proceedings alleging Clayton § 7 violations in that case tolled the statute for the particular private action involved, the Court found the F.T.C. proceedings had such an effect although the F.T.C. had alleged merely that Minnesota Mining’s conduct “may substantially lessen competition while the latter [New Jersey Wood] asserts activity that has actually done so.” Thus, said the Court, Clayton § 4B applies because “[t]hat clause provides for tolling as long as the private claim is based ‘in part on any matter complained of’ in the government proceedings.” 381 U.S. at 323, 85 S.Ct. at 1480.

In New Jersey Wood the Supreme Court, of course, did not have to deal with the explicit claim that an F.T.C. proceeding alleging violations of F.T.C. § 5 can toll the statute. Subsequent cases in other federal courts, however, have squarely faced that issue, and have found the statute may be tolled. The Seventh Circuit held in Rader v. Balfour, 440 F.2d 469, 473 (7th Cir. 1971):

Although a supportable distinction could be drawn between an FTC proceeding authorized by the antitrust laws to deal with violations thereof and an FTC proceeding for a cease and desist order aimed against alleged conduct which involves either an existing or an incipient violation of the antitrust laws but brought under a provision of the FTC act authorizing proceedings against a broader range of conduct, we conclude that the policy-factors deemed controlling in Minnesota Mining are present and controlling here as well. Therefore, we construe 15 U.S.C. § 16(b) so that an FTC proceeding brought under 15 U.S.C. § 45 [F.T.C. Act § 5] suspends the running of the statute of limitations if the proceeding is directed at alleged conduct which appears to involve an existing or incipient violation of the antitrust laws.

We agree. Accord, In re Antibiotic Antitrust Actions, 333 F.Supp. 317, 319-320 (S.D.N.Y.1971); Lippa’s Inc. v. Lenox, Inc., 305 F.Supp. 182 (D.Vt.1969); contra, Laitram Corp. v. Deepsouth Packing Co., 279 F.Supp. 883 (E.D.La.1968).

Defendants argue that this court rejected the reasoning of Rader and made a sharp distinction between F.T.C. proceedings to enforce the F.T.C. and Clayton Act in its opinion in New Jersey Wood, prior to the appeal to the Supreme Court. In reaching our conclusion in New Jersey Wood that F.T.C. proceedings to enforce the Clayton Act do toll the statute, this court noted that Clayton Act § 7 is an “antitrust law,” while F.T.C. Act § 5 is not. 332 F.2d at 350. In further discussing the tolling statute, we emphasized the “affirmative statutory distinction between FTC proceedings under the FTC Act and under the Clayton Act.” 332 F.2d at 359. It was on the basis of these comments that the district court felt constrained to hold that F.T.C. proceedings under the F.T.C. Act could not toll the statute, which speaks in terms of “proceeding[s] to prevent, restrain or punish violations of any of the antitrust laws.” [Emphasis added.] 15 U.S.C. § 16(b).

Our decision in New Jersey Wood discusses the distinction between Clayton Act violations and violations of F.T.C. Act § 5:

Purposefully left broad and generally undefined (as to what constituted an “unfair method of competition” or an “unfair practice”), Section 5 proceeded on the idea of an administrative body of experts (the FTC) which, given a flexible standard of judgment, would discover and prevent use of such practice before it worked a Sherman violation ....
Within this area of “unfair methods of competition”, the FTC Act and the Clayton Act overlap .... These “unfair methods of competition” (later amended to include “unfair * * * practices”), whether prohibited specifically under the Clayton Act, or generally under the FTC Act, were to be restrained according to a congressional design.

332 F.2d at 351-352. In discussing the distinctions between Clayton and F.T.C. Act violations, however, this court was not concerned directly with whether the distinctions provided a basis for holding that F.T.C. proceedings to enforce the F.T.C. Act cannot toll the statute of limitations, while F.T.C. proceedings to enforce the Clayton Act may. We decline to pursue the dicta in New Jersey Woods to the conclusion defendants contend it must lead, namely that the distinction between F.T.C. and Clayton violations mandates differing results on* the question of whether the statute is tolled.

Our reference in New Jersey Wood to the “affirmative statutory distinction” between F.T.C. proceedings to enforce the F.T.C. Act and the Clayton Act was a reference to a statutory distinction which had existed 'before the Finality Act of 1959 made F.T.C. orders in connection with Clayton Act violations final without court enforcement. This court discussed that distinction in connection with Clayton Act § 5(a), 15 U.S. C. § 16(a), dealing with use of F.T.C. findings of violations as prima facie evidence in private suits. We said that the rule of Proper v. John Bene and Sons, Inc., 295 F. 729 (E.D.N.Y.1923), that F.T.C. findings of F.T.C. Act violations could not be used as prima facie evidence was not determinative of the issue of whether F.T.C. findings of Clayton Act violations could be so used. We distinguished Proper because in 1923 F.T.C. findings were not final nor could they be enforced without judicial action. Thus the findings could not be a “final judgment or decree,” which is what Clayton Act § 5(a) requires before the findings can be used as prima facie evidence. By 1964 when New Jersey Wood was written, F.T.C. findings of both F.T.C. Act and Clayton Act violations were final and enforceable without court order. Thus,, we said cases which continued to follow the Proper rule after 1959 failed to recognize the “affirmative statutory distinction” between finality of F.T.C. proceedings under the F.T.C. Act and the Clayton Act, which had existed between 1938 and 1959, and which had been recognized in cases such as Brunswick-Balke-Collender Co. v. American B. & B. Corp., 150 F.2d 69, 74 (2d Cir. 1945).

Our discussion in New Jersey Wood of Clayton Act § 5(a)’s prima facie evidence rule is not applicable to the question in issue here of whether Clayton Act § 5(b)’s tolling provision applies for F.T.C. proceedings pursuant to the F.T. C. Act. Clayton Act § 5(b), unlike § 5(a), does not speak in terms of “final judgment or decree;” it requires only “civil or criminal proceeding [s] . . . instituted by the United States.” As the Supreme Court emphasized in its affirmance of our holding in New Jersey Wood:

§ 5(b) tolls the statute of limitations set out in § 4B from the time suit is instituted 'by the United States regardless of whether a final judgment or decree is ultimately entered. . . .
When we turn from the express language of these two statuory provisions to the congressional policies underlying them, it becomes even more apparent that the applicability of § 5(a) to Federal Trade Commission actions should not control the question whether such proceedings toll the statute of limitations ....
This makes § 5(b) readily severable from § 5(a).

381 U.S. at 316-318, 85 S.Ct. at 1473.

In discussing the “affirmative statutory distinction” between F.T.C. Act and Clayton Act enforcement by the F.T.C. we did not, therefore, mean to imply that the distinction would govern determination of whether F.T.C. enforcement of the F.T.C. Act tolled the statute of limitations under Clayton Act § 5(b). The Supreme Court’s affirmance of New Jersey Wood indicates clearly that we would be in error to pursue that statutory distinction discussed by us in New Jersey Wood to the conclusion suggested by defendants.

Ill

Having determined that F.T. C. proceedings alleging violations of F.T. C. § 5 may toll the statute of limitations, the next question is whether the F.T.C.’s 1954 proceedings against Luria Brothers had that effect on the present case. Resolution of that question must be made

by a comparison of the two complaints. The test is whether the private action is based in part on matters of which the government complained.

Rader v. Balfour, 440 F.2d 469, 473 (7th Cir. 1971); cf. Minnesota Mining and Manufacturing Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 322-324, 85 S.Ct. 1473, 14 L.Ed.2d 405 (1965). We analyzed the first count of the F.T.C. complaint of violations of F.T.C. Act § 5 in our affirmance of the Commission’s finding of violations in Luria Brothers and Company v. F.T.C., 389 F.2d 847, 852 (3d Cir. 1968), as follows:

Count I in substance charged that Luria and the other petitioning mills entered into a series of agreements whereby Luria was to act as the exclusive broker for the petitioning mills. It charged that these agreements led to a restraint of trade and tended to create a monopoly in the scrap metal market in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1). Count I also charged that the petitioning mills conspired to effect a monopoly in Luria, that Luria and others restrained trade in export scrap, that petitioners engaged in coercive tactics, and that Luria acquired various competing companies — all in violation of Section 5.

The present complaint charges Luria with violations of Sherman Act §§ 1 and 2 and Clayton Act §§ 3 and 7 on the basis of the same agreements Luria had with various mills and Luria’s same acquisitions of competitors. Since this complaint charges conduct which appears to have been involved in the prior proceeding, the statute was tolled by the F.T.C. proceeding initiated on January 19, 1954. The F.T.C. proceeding was “a civil or criminal proceeding instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws,” and the present private action is “based in whole or in part on any matter complained of in said proceeding.” 15 U.S.C. § 16(b).

We therefore disagree with the dicta in the district court’s opinion that an F.T.C. proceeding pursuant to F.T.C. Act § 5 cannot toll the statute of limitations under Clayton Act § 5(b). The F.T.C. proceedings against Luria Brothers did suspend running of the statute on January 19, 1954. Therefore, as plaintiffs here did institute this action within one year after the completion of the F.T.C. proceeding, they may sue for all damages accrued since January 19, 1950, four years before the statute’s running was suspended, in accordance with the four year statute of limitations in Clayton Act § 4B, 15 U.S.C. § 15b.

Although we find that the statute of limitations should have been tolled on January 19, 1954, rather than January 1, 1956, as the district court held, we do not disturb the judgment of the district court. There was no cross-appeal by plaintiffs, and thus we are bound by the principle of Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191-192, 57 S.Ct. 325, 328, 81 L.Ed. 593 (1937), that:

“Where each party appeals each may assign error, but where only one party appeals the other is bound by the decree in the court below, and he cannot assign error in the appellate court, nor can he be heard if the proceedings in the appeal are correct, except in support of the decree from which the appeal of the other party is taken.”

See also Conover v. Montemuro, 477 F.2d 1073 at 1076-1078 (3d Cir. 1973). For the same reason, we need not reach the issue argued by plaintiffs that because the federal statute was not in existence in 1954 the six year statute of limitations of the Commonwealth of Pennsylvania, 12 P.S. § 31, rather than the four year federal limitation, applies. Chat-anooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241 (1906); Philco Corp. v. Radio Corporation of America, 186 F.Supp. 155 (E.D.Pa.1960).

Because we have found that the statute of limitations was tolled by the F.T. C. 1954 proceedings on the basis of the allegations of violations of F.T.C. Act § 5, we need not reach the second issue raised by appellants — whether the statute could also have been tolled by the allegations of Clayton Act § 7 violations.

IV

Defendants further urged in their motion for summary judgment and on appeal that even if the statute of limitations were tolled in 1954, it could not have been tolled as to the particular defendants in this case. They argue that the statute could not have been tolled (a) as to individual defendant William Luria because individuals cannot violate Clayton Act § 7, which speaks in terms of what “no corporation” can do, 15 U.S.C. § 18; or (b) as to the four named corporate defendants because none were involved in the scrap metal business in 1954 when F.T.C. proceedings began against Luria Brothers. We find no merit in either of these contentions.

William J. Luria was an officer of Luria Brothers in 1954. He is presently an officer of Luria Brothers & Company, Inc., the Ogden subsidiary which operates the old Luria business. Although Luria, as an individual, could not violate Clayton Act § 7, Bender v. Hearst Corp., 152 F.Supp. 569, 578-579 (D. Conn. 1957), aff’d 263 F.2d 360 (2d Cir. 1959), he could have violated F.T.C. Act § 5 which applies to any person, partnership or corporation. As we have held that the statute was tolled by the Commission’s proceedings under the F.T.C. Act § 5, the statute was certainly tolled as to Luria. We express no opinion with regard to whether the statute could have been tolled as to Luria on the basis of Clayton Act proceedings by the F.T.C.

Defendants’ argument with respect to the corporate defendants is based on the holding of Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971), that the statute may be tolled not only against defendants in the Government proceedings, 'but also against non-defendants who participated in the allegedly illegal conduct. Defendants argue that it is an obvious corollary to that rule that if a corporation was not even in the business in which wrongdoing occurred when Government proceedings began, it could not have been a participant in the illegal activities. No such obvious corollary exists. This argument ignores the plain statutory language of the tolling provision of Clayton Act § 5(b), which provides for tolling “in respect of every private right of action . . . based in whole or in part on any matter complained of” in the Government proceeding. 15 U.S.C. § 16(b). Plaintiffs have sued Ogden and its three subsidiaries for alleged antitrust violations which are nearly identical with those investigated by the F.T.C.. They claim a private right of action against Ogden and its subsidiaries on the basis of their purchase, of, and continued operation of, the original Luria Brothers & Company assets subsequent to initiation of F.T.C. proceedings. At this point in the instant litigation, there is no need for us to consider the effects of the stipulation entered into between Ogden and the F.T.C. in 1956 making the new Ogden subsidiary operating Luria’s assets a respondent to the F.T.C. proceeding. Whether or not Ogden or its subsidiaries are legally liable for damages either before or after their purchase of Luria, because of the stipulation or more generally because they assumed liability for Luria’s actions or continued allegedly illegal actions after the purchase, is an issue of liability yet to be resolved. We express no opinion as to liability of any of the defendants. All that we hold at the present time is that the statute of limitations was tolled in 1954 because of the F.T.C. proceeding. Issues of liability will be determined upon remand.

The judgment of the district court will be affirmed.

      . The district court certified on January 31, 1972, that its opinion and order involved a controlling question of law as to which there is substantial ground for difference of opinion. A panel of this court granted permission to appeal this interlocutory order on February 29, 1972. (J. Aldisert dissenting.)

      . 15 U.S.C. § 16(b) reads in full:
      Whenever any civil or criminal proceeding is instituted by the United States to prevent, restrain, or punish violations of any of the antitrust laws, but not including an action under section 15a of this title, the running of the statute of limitations in respect of every private right of action arising under said laws and based in whole or in part on any matter complained of in said proceeding shall be suspended during the pendency thereof and for one year thereafter: Provided, however, That whenever the running of the statute of limitations in respect of a cause of action arising under section 15 of this title is suspended hereunder, any action to enforce such cause of action shall be forever barred unless commenced either within the period of suspension or within four years after the cause of action accrued.

      . The current appellee in this suit, Luria Steel & Trading Company is in no way affiliated with Luria Brothers & Company, the corporation investigated by the F.T.C.

      . Defendants do not challenge the district court’s determination that the statute was tolled until certiorari was denied, and not just until May 28, 1968, which was 90 days after filing of the Third Circuit opinion, and thus the final date on which appeal of the Clayton Act finding was possible. The district court reasoned “that once an FTC proceeding to enforce Clayton Act Section 7 has been instituted, the statute of limitations is tolled until the proceeding is finalized and not merely until the Clayton Act aspects are finalized.”

      . The 1955 amendment to Clayton Act § 5 actually became effective on January 7, 1956, six months after its July 7, 1955, enactment. It changed the language “any suit or proceeding in equity or criminal prosecution” to its present form of “any civil or criminal proceeding.” The district court reasoned that an F. T.O. proceeding would not have tolled the statute of limitations before the amendment because the proceeding did not conform to the pre-amendment language, but that F.T.C. proceedings did conform to the post-amendment language and thus tolled the statute even for proceedings instituted prior to the amendment’s enactment. It, however, held that the statute was not tolled retroactively as of the date the F.T.C. proceeding began; but, rather, that the statute was tolled as of the date the amendment became effective.

      . The district court stated:
      While we are impressed with the reasoning expressed in the above three cases [Rader, In re Antibiotic, and Lippa’s], we are constrained to follow the apparent distinction recognized in the New Jersey Wood case. 336 F.Supp. at 1240.

      . F.T.C. findings of F.T.C. Act violations were made final by the Wheeler-Lea Act of 1938, 52 Stat. 111 (1938), 15 U.S.C. § 45(g) ; F.T.C. findings of Clayton Act violations were not made final until the Finality Act of 1959, 73 Stat. 243 (1959), 15 U.S.C. § 21.

      . The district court tolled the statute on the basis of the F.T.C. proceeding for Clayton Act violations. Although the F.T.C. proceeding commenced January 19, 1954, the district court said it could not have tolled the statute until January 1, 1950. See footnote 5 supra. We find no such infirmity in the F.T.C. proceedings as of January 19, 1954.
      In revising Clayton Act § 5 in the 1955 amendment, Congress recognized that the merger of law and equity in the Federal Rules of Civil Procedure in 1938 made anachronistic § 5’s reference to “any suit or proceeding in equity thus, it amended the language to read “any civil or criminal proceeding.” The amendment did not therefore create any substantive change in Clayton Act § 5’s charae-terization of F.T.C. proceedings.
      In holding in Neio Jersey Wood that F.T.C. proceedings tolled the statute of limitation, the Supreme Court made no distinction between the post and pre-1956 language. See majority opinion, 381 U.S. at 320-321, and dissent, 381 U.S. at 327, 85 S.Ct. 1473. The two opinions disagreed, not on the basis of what the 1956 amendment meant, but on construction of legislative history in 1914. Implicit in the majority opinion is the conclusion that an F.T.C. proceeding was not only a “civil proceeding” under the post-1956 statute, but also a “proceeding in equity” under the pre-1956 statute.

      . The F.T.C. Clayton Act § 7 allegation concerned Luria’s purchases of competing brokers. This Clayton Act § 7 violation is also alleged in the private suit sub judice. We need not reach the issue of whether F.T.C. proceedings pursuant to the Clayton Act in 1954 could have tolled the statute with regards to this aspect of the private suit, because Luria’s purchase of competitors was also alleged by the F.T.C. in 1954 to be an F.T.C. Act § 5 violation. The F.T.C. Act allegation therefore tolled the statute with regards to these acquisitions, whether or not the Clayton Act allegations could have done so independently.