author: ROSS, Circuit Judge. LAY, Circuit Judge

text:
    FAIRWAY CENTER CORPORATION, Appellant, v. U. I. P. CORPORATION, Appellee.
    No. 73-1773.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 14, 1974.
    Decided Sept. 10, 1974.
    Lay, Circuit Judge, concurred in result and filed opinion.
    See also, 8 Cir., 491 F.2d 1092.

      Edward W. Dailey, Burlington, Iowa, for appellant.
    J. C. Riley, Burlington, Iowa, for ap-pellee.
    Before LAY, ROSS and WEBSTER, Circuit Judges.
   ROSS, Circuit Judge.

This is an action by Fairway Center Corporation (Fairway), originally brought in Iowa state court, seeking specific performance of an alleged contract for the sale by it of the Fairway Center shopping center in Burlington, Iowa, to the U.I.P. Corporation (UIP). This action was removed by UIP to the federal district court under 28 U.S.C. § 1441. Jurisdiction is based on diversity of citizenship.

After a trial to the court the district judge, the Honorable William C. Stuart, found that there was no contract between the parties because there had been no “meeting of the minds.” He, therefore, refused to order the requested specific performance and dismissed the action. Fairway appeals, and we affirm the district court’s decision.

In 1969 UIP formed Oceanada Corporation (Oceanada) and transferred some real estate holdings to that corporation in return for stock. Oceanada had been set up primarily for the purpose of developing real estate, but by late 1969 UIP wanted to divest itself of its Oceanada stock because of difficulties it was having in obtaining good management for Oceanada.

In the meantime the board of directors of Fairway had decided to sell its shopping center and made contact with two of the principal officers of Oceana-da about a possible sale. Shortly thereafter these two officers were killed in an airplane accident. UIP then approached Fairway with an offer to exchange part of its Oceanada stock for the shopping center. While Fairway was not interested in obtaining Oceana-da stock as such, the parties did enter into negotiations to see if a mutually satisfactory arrangement could be made. Initially these negotiations were carried on by counsel for the two corporations, and in early 1970 the Chicago firm of Arvey, Hodes and Mantynband, attorneys for Fairway, drafted an agreement which was submitted to UIP’s attorneys, the Milwaukee firm of Frisch, Dudek, Slattery and Denny. The Frisch firm made several changes in this draft, and a second proposed agreement was prepared by Fairway’s counsel. On March 10, 1970, the board of directors of UIP passed a resolution approving the purchase and authorizing certain officers to execute and deliver any agreement substantially in the form of this second proposal.

Pursuant to this resolution, Mr. John Frisch, Secretary of UIP and a member of the law firm representing that corporation, and Mr. James L. Dorman, an executive vice-president of UIP, went to the Arvey firm’s office in Chicago the next day, March 11, 1970. Their purpose was to make necessary changes in the second draft and to come up with a final draft for signature. After several hours of negotiation with members of the Arvey firm and Mr. Irving Berlin, President of Fairway, they were successful, and the final proposed agreement was signed by Dorman for UIP and Berlin for Fairway that day. The agreement provided that neither party would be obligated to perform unless the execution and delivery of the agreement had been authorized or ratified by the boards of directors of Fairway and UIP and by the shareholders of Fairway.

The key provision of the agreement was paragraph 15(a), which dealt with the manner in which UIP was to pay for the shopping center. This paragraph represented an attempt to reconcile Fairway’s goal of selling the shopping center and obtaining the most cash possible with UIP’s goal of acquiring the shopping center in exchange for Oeeana-da shares without committing itself to any cash outlay. This paragraph provided that UIP would use its “best efforts” to cause the Oeeanada stock it was transferring to Fairway to be registered under the Federal Securities Act of 1933 within eighteen months after closing. UIP also agreed to use its “best efforts” to arrange for all of the so-called “Fairway Oceanada” shares to be included in a firm underwriting agreement or to arrange for another lawful public or private market for these shares within eighteen months of closing. If the underwriting or other sale of the Fairway Oceananda shares resulted in a net price per share of less than $3.00, then UIP had three options to make up the difference, so that Fairway shareholders would receive the full agreed price for the shopping center. (1) UIP could simply pay the difference in cash. (2) UIP could deliver enough additional registered Oceanada shares to Fairway so that the total market value of all the Oceanada shares was equal to the total purchase price of the shopping center. (3) UIP could deliver enough fully registered common shares of UIP, so that at their aggregate fair market value they made up the difference between the selling price of the Fairway Oceanada shares and the agreed purchase price of the shopping center.

Paragraph 15 was silent as to what would happen if UIP’s “best efforts” failed and the Fairway Oceanada shares were not registered or no underwriting agreement or other public or private sale were arranged.

On March 17, 1970, the March 11 agreement was presented to the Fairway board of directors for the required ratification. However, rather than ratifying the agreement as written, the board ratified it subject to certain amendments being added to it, the most important of which was an effort to set forth what would happen if UIP was unable to register the Oceanada stock or arrange a public or private sale therefor. The key paragraph of this “Amendment Agreement” is as follows:

Paragraph 15(a) of said Agreement is amended to add at the end thereof the following:
“In the event UIP shall not, within eighteen (18) months after the Closing Date, cause the Fairway Oceanada Shares to be fully registered and be includable in a firm Underwriting Agreement or arrange for another lawful public or private market for all of the Fairway Oceanada Shares and designate such market in writing to Fairway, then UIP shall within twenty-four (24) months after the Closing Date either (i) pay in cash to Fairway the sum of the Minimum Value (as hereinafter defined); or (ii) issue to Fairway validly issued, full paid and non-assessable shares of Common Stock of UIP, which shares are fully registered and validly listed for trading on the American Stock Exchange and any other stock exchange on which shares of Common Stock of UIP are then listed for trading, and which shares at the date of issue have an aggregate fair market value (as hereinafter defined) of at least the Minimum Value (as hereinafter defined).”

Careful analysis of this proposal reveals that in addition to clarifying paragraph 15, it also changes it. In essence, the amendment provides that if UIP’s “best efforts” to cause the Fairway Oceanada shares to be registered and to arrange for an underwriting agreement or other sale fail, then those shares will be deemed worthless; and UIP will have to pay' the entire price of the shopping center in cash or UIP common stock. The proposed amendment is silent as to what would become of the Fairway Oceanada shares in the event no registration or sale was arranged by UIP,even though those shares could, in fact, still retain some value.

On March 18, 1970, Mr. E. A. Wahlen of the Arvey firm prepared a proposed amendment agreement incorporating the changes desired by the Fairway board. He sent this proposal to Mr. Frisch that day along with a letter which described the amendment as a “Clarification of the obligations of U.I.P. Corporation.”

The UIP board met on March 23, 1970, but the proposed amendments were not submitted to it at that time. The board did, however, approve the March 11 agreement and authorized its officers to perform all acts necessary to consummate the agreement “consistent with the proposed agreement” of March 11.

On March 24, 1970, Mr. Dorman was visited by Mr. Berlin, Fairway’s president, who indicated to Dorman that he needed to obtain Dorman’s signature on the amendment agreement so that he could present it at a shareholders meeting scheduled for March 30, 1970. Both Dorman and Berlin professed to not fully understand the amendment, but Berlin indicated that it did not change the basic agreement at all. Dorman told Berlin that he could not sign without first checking with Frisch. This he did, and Frisch indicated that if Dorman did sign in order to accommodate Berlin, he should do so only with an accompanying letter setting out UIP’s understanding of the agreement as amended. On March 27, 1970, Dorman returned the amendment he had signed along with an explanatory letter also dated March 27, 1970. This letter stated:

I have also executed on behalf of U.I.P. Corporation the proposed amendment agreement furnished which clarifies the original agreement, however as further clarification we would like to point out that it is our mutual understanding that U.I.P. shares or cash referred to is not in lieu of the Oceanada shares but only in an amount which may be required to supplement the aggregate fair market value of the Oceanada shares.

On March 30, 1970, the special shareholders meeting of Fairway Center Corporation was held in Chicago. The minutes of that meeting reflect that the shareholders voted to authorize the sale of the shopping center to UIP “for the consideration and upon the terms and conditions set forth in the agreement with U.I.P. Corporation dated March 11, 1970, as amended by agreement dated March SO, 1970, which agreement as amended is hereby adopted and approved ..” (Emphasis supplied.)

On April 1, 1970, Mr. Wahlen of the Arvey firm responded by letter to Dor-man’s explanatory letter of March 27. In pertinent part this letter said:

Paragraph 2 of your letter of March 27 is not correct. It is the understanding of Fairway Center Corporation and all of its shareholders that in the event the Fairway-Oceanada Shares are not fully registered and underwritten or U.I.P. has not arranged for a lawful public or private sale of those shares, then, on or before 24 months after the Closing Date U.I. P. will deliver to Fairway Center Corporation U.I.P.’s shares or cash in an amount equal to the Minimum Value as defined in the Agreement, inasmuch as it will be considered for all purposes that the Fairway-Oceanada Shares have no value whatsoever if they are not fully registered and underwritten, or a lawful public or private sale of the Fairway-Oceanada Shares has not been arranged by U.I.P. Neither Fairway Center Cor-ration nor its shareholders can get into any discussion at the 24 month date that Fairway-Oceanada Shares have any market value whatsoever in the absence of being fully registered and underwritten, or the subject of a lawful public or private sale thereof arranged for by U.I.P.

Dorman replied to Wahlen’s letter on April 4, 1970, as follows:

This is in response to your letter dated April 1, 1970. There appears to be a serious misunderstanding which must be satisfied prior to the formal closing of the contemplated U.I.P. and Fairway Center Corporation transaction.
According to paragraph 15(a) U.I. P. agreed to use its best efforts to cause the Oceanada shares to be registered and included in an underwriting agreement eighteen months after the closing date. Also according to the agreement, U.I.P. is to use its best efforts for a private sale of such shares.
In our discussions it was understood that disposition of the Oceanada shares in accordance with the above was to be orderly so as not to depress the market because of the number of shares involved.
It is our understanding from the agreement that in the event the disposition of the Oceanada shares in this manner yields less than $3.00 per share then U.I.P. will make-up the difference in U.I.P. common stock or cash within twenty-four months of the closing date.

Wahlen did not respond to this letter, and he testified at the trial that he felt the last three paragraphs reflected his understanding of the agreement as amended and required no answer.

Some further negotiation continued after this, but on May 15, 1970, counsel for UIP notified Fairway’s counsel that UIP was “terminating all further negotiations and transactions for the acquisition of the Fairway property . . ..” In the meantime UIP had concluded another agreement with another company by which it had acquired land in return for shares of Oceanada.

On May 21, 1970, Fairway replied that it regarded the May 15 letter as an anticipatory breach of the agreement. This action was filed in December of that year.

A summary of the situation as it stood after the final correspondence from Dor-man to Wahlen is this: The UIP board of directors had approved the March 11 agreement as originally written. The Fairway board of directors and shareholders had approved the March 11 agreement as amended. In short, they had not ratified the same thing.

Mr. Dorman of UIP had signed the amendment, but his explanatory letter of March 27 and his letter of April 4 make it clear that he did so without agreeing that the UIP promise to use its “best efforts” to cause the Fairway Oceanada stock to be registered and to arrange a sale should be turned into a guaranty or that the Fairway Oceanada stock would be deemed to have no value. Mr. Wah-len, on behalf of Fairway, on the other hand, had made it explicitly clear in his letter of April 1 that Fairway understood the amendment to mean that if no registration and sale were arranged by UIP, then UIP would have to pay the entire purchase price in cash or UIP common shares.

It is in this factual context that we must determine whether or not the trial court was correct in holding that no contract between the parties had come into existence.

I.

The trial court found that there was no binding contract for the sale of the shopping center because there had been no “meeting of the minds” of the parties. This Court has cautioned that the use of the term “meeting of the minds” should not lead to a requirement that the subjective “mental processes of each party must concur before a contract can result. . On the contrary, it is what is expressed by the parties that constitutes the contract which courts enforce.” Industrial Products Mfg. Co. v. Jewett Lumber Co., 185 F.2d 866, 869 (8th Cir. 1950). Iowa, too, has adopted the objective test to determine the intent of the parties. Rotterman v. General Mills, 245 Iowa 229, 61 N.W.2d 718, 722-723 (1953).

Nonetheless, it remains clear that mutual assent is an essential prerequisite for the formation of a contract. Professor Corbin states the rule in the following manner:

The great majority of contracts are bargaining contracts, the purpose of which is to effect an exchange of promises or of other performances. To attain this purpose, there must be mutual expressions of assent to the exchange. These expressions must be in agreement .

1 A. Corbin, Corbin on Contracts § 107, at 478 (1963). See also, 1 S. Williston, Law of Contracts § 22 (3d ed. 1957); Restatement of Contracts § 20 (1932).

In language which is pertinent to this case our Court has expressed the mutual assent requirement in Neff v. World Publishing Co., 349 F.2d 235, 248 (8th Cir. 1965).

One of the essential elements of a contract is “mutuality of agreement” or “mutual assent” — frequently referred to as a “meeting of the minds” of the parties. In Joseph v. Donover Company et al., 9 Cir., 261 F.2d 812, at page 820, the Court said:
“To create a contract, then, the minds of the parties must meet as to every essential term of the proposed contract, and there must be a clear and unequivocal acceptance of a certain and definite offer in order that a mere agreement may become a contract. Therefore, it is necessary, among other things, that the minds of the parties meet as to the essential terms of the proposed contract.”

The Iowa Supreme Court has said quite simply: “Of course, to become contractually bound, either orally or by writing, the parties must manifest a mutual, unequivocal assent to the terms of the contract.” McCarter v. Uban, 166 N.W.2d 910, 913 (Iowa 1969). See also, Hayne v. Cook, 252 Iowa 1012, 109 N.W.2d 188, 192 (1961); Krutsinger v. School Tp. of Liberty in Lucas Cty., 219 Iowa 291, 257 N.W. 797, 798 (1934).

The court went on in McCarter, supra, to explain what may be considered when deciding whether or not there was mutual assent to a contract.

The existence of an agreement or meeting of the minds should not alone be determined from the words used by the parties, but also from the situation and surrounding circumstances and by the inferences which mankind would ordinarily and reasonably draw therefrom.

McCarter v. Uban, supra, 166 N.W.2d at 913. See also Alpen v. Chapman, 179 N.W.2d 585, 589 (Iowa 1970), in which the Iowa court said: “[Wjhether preliminary negotiations remained at that, or actually ripened into an oral contract, depends upon the intention of the parties as gleaned from the facts of the case.”

In summary, then, the general rule, which is followed in Iowa, is that no contract can come into existence absent a manifestation of mutual assent thereto by the parties. Whether or not there has been such mutual assent depends upon the intention of the parties as determined objectively from their words and actions viewed within the context of the situation and surrounding circumstances.

Applying the foregoing principles of contract law to the facts of this case, it is evident that UIP and Fairway never formed a binding contract, because they never mutually assented to the same agreement.

When Mr. Berlin and Mr. Dorman signed the proposed agreement on March 11, 1970, they did not intend their signatures to be a binding assent to its terms; for that writing itself contained express provisions that it would only be operative if approved or ratified by the two corporations. It is equally clear that the board of directors of UIP and the board and shareholders of Fairway never approved or ratified the same agreement. UIP approved it as written. Fairway approved it as amended.

Finally, even assuming Dorman had the authority to bind UIP to the terms of the amendment (an assumption we will discuss later in this opinion), his signature thereon did not manifest a “mutual, unequivocal assent” to those terms as interpreted by Fairway. Dor-man’s intent may be objectively ascertained from the contents of his March 27 explanatory letter. He clearly did not intend to assent to any contract which would result in UIP paying the entire purchase price of the shopping center in cash or UIP common stock. Mr. Wahlen’s April 1 reply letter to Dorman indicates that even at that time Fairway realized that Dorman had not given unequivocal assent to the same interpretation of the amendment as it had. UIP simply did not agree with Fairway that in the event UIP could not register or sell the Fairway Center Oceanada shares that these shares would be deemed to be without value in determining the amount of cash or UIP shares to be transferred from UIP to Fairway pursuant to the terms of paragraph 15(a).

This is not a case in which both parties signed and ratified the same agreement with each party thinking that the agreement meant something different. Here, it is clear that there was never any mutual assent by the parties to the feame contract terms regarding UIP’s manner of payment for the shopping center. Without that requisite assent there was no binding contract, and the trial court properly refused to grant specific performance.

II.

The trial court also found, and we agree, that Mr. Dorman did not have authority from the UIP board of directors to execute an agreement in accordance with Fairway’s interpretation of the amendment. Therefore, even if there were mutual assent between Dorman and Fairway as to the amendment, Dorman’s assent would not be binding on UIP.

Under Iowa law “the scope of authority of an agent is to be determined by the trier of fact.” Stauter v. Walnut Grove Products, 188 N.W.2d 305, 311 (Iowa 1971). As a finding of fact the district court’s determination must be sustained by us unless clearly erroneous. Fed.R.Civ.P. 52(a). A review of the evidence satisfies us that the trial court’s finding is not clearly erroneous.

At the March 23, 1970, meeting of the UIP board of directors, the following resolution was passed:

RESOLVED, that the Executive Committee and the proper officers are authorized to perform such acts in connection with the contingencies and requirements leading to the acquisition of Fairway Shopping Center as are consistent with the proposed agreement as signed by the principals on March 11, 1970.

It is upon this resolution that Fairway bases its contention that Dorman did have authority to bind UIP to the agreement as amended.

However, as already discussed, the proposed amendment to paragraph 15 of the March 11 agreement was not “consistent with” that paragraph as written. It not only filled the gap in original paragraph 15, but in effect it also changed UIP’s promise to use its “best efforts” to cause the Fairway Oceanada shares to be registered and to arrange a sale, into a commitment to pay Fairway a minimum price in cash or listed shares of UIP if such best efforts failed. Dorman had no authority from the board to agree to this inconsistent amendment. Dorman himself testified at the trial that he did not believe he had been given the authority to bind UIP to the amendment as it was subsequently interpreted by Fairway, and Mr. John F. Catalane, who was President of UIP at the relevant times, in a deposition introduced into evidence at the trial, testified that Dorman acted without authority in signing the amendment. Certainly, in light of this, it cannot be said that the trial court was clearly erroneous in its finding of fact and therefore the “Amendment Agreement” was properly held by the trial court to have been not authorized by UIP’s board as required by the original agreement.

III.

Fairway additionally urges that we should reverse based on the allegation that the trial court erred in not granting its motion for a continuance. The background of this argument is that at the conclusion of defendant UIP’s case on July 19, 1973, Fairway made an oral motion which was, in essence, a motion for a continuance in order to allow it time to take certain depositions to be used in rebuttal. UIP resisted this motion, and the trial judge refused to grant the continuance.

It is well settled that a motion for a continuance is directed to the sound discretion of the trial court and that the court’s determination will not be reversed on appeal unless an abuse of that discretion is shown. Grunewald v. Missouri Pacific R.R., 331 F.2d 983, 986 (8th Cir. 1964); Lessmann v. Commissioner of Internal Revenue, 327 F.2d 990, 996 (8th Cir. 1964); Janousek v. French, 287 F.2d 616, 623 (8th Cir. 1961); 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2352 (1971). We are convinced that Fairway has not met its burden of establishing an abuse of discretion in this case.

The depositions which Fairway’s counsel proposed to take during the continuance were to be directed at the issue of mutual assent to the terms of the agreement as ameftded. He sought to depose John F. Catalane, the President of UIP during March, 1970, who had already been deposed by Fairway. He also proposed, to depose Bart C. Cata-lane, who had been on the UIP board of directors at the relevant times. The offer of proof filed by Fairway on August 6, 1973, indicated that each would testify to the effect that their understanding of the agreement as amended was the same as Fairway’s and that they had assented to those terms.

There is serious question that the proffered testimony would lead to a different result. No matter what the Cata-lanes might have thought about the negotiations of March, 1970, there would still be insufficient objective evidence of a manifestation of mutual assent by the UIP board of directors as a whole.

However, leaving this analysis completely aside, there is ample reason to find no abuse of discretion in the fact that Fairway offers no valid excuse for not having taken the desired depositions prior to the last day of the trial. The proceedings below occurred in three segments, the trial being held on May 17 and 18, 1973; May 21, 1973; and July 19, 1973. It was clear at an early stage that the existence of a legally binding contract was in issue and that whether or not there had been mutual assent was a key element. Yet it was not until July 19 that Fairway asked for a continuance after it did nothing to obtain this evidence between May and July. In short, it was not diligent in seeking to present this evidence to the court in a timely manner.

The order and judgment of the district court is affirmed.

LAY, Circuit Judge

(concurring).

Although I cannot concur in the majority’s reasoning used to affirm the district court, I concur in the result reached.

I cannot accept the majority’s reliance on the mutual assent doctrine. The authorized agents of both companies executed the same contract and regardless what they thought as to how the contract was to be construed they were bound by its actual terms. As stated in 1 Williston on Contracts, § 95, pp. 349-350 (3d ed. 1957):

It is often said broadly that if the parties do not understand the same thing there is no contract. But it is clear that so broad a statement cannot be justified. It is even conceivable that a contract may be formed which is in accordance with the intention of neither party. If a written contract is entered into, the meaning and effect of the contract depends on the interpretation given the written language by the court. The court will give that language its natural and appropriate meaning.

Nor do I agree that Mr. Dorman lacked authority to execute the agreement. If he lacked actual authority, which in my judgment he possessed, he nevertheless was cloaked with ostensible authority to execute the contract and that is all he needed. However, I agree with the result reached. The March 11, 1970 agreement required that before it was to become operative the contract had to be approved and ratified by both corporations. This never occurred. On this basis only, I would affirm the judgment of the district court.

      . Paragraph 11(e) of the agreement provided :
      (e) on or prior to the Closing Date the execution and delivery of this Agreement and the consummation of all of the transactions provided for herein shall have been duly authorized or ratified by the respective Boards of Directors of Fairway and UIP, and by the holders of the requisite number of shares of Fairway ; Paragraph 12(g) provided:
      (g) on or prior to the Closing Date the execution and delivery of this Agreement and the consummation of all of the transactions- provided for herein shall have been duly authorized or ratified by the respective Boards of Directors of Fairway and TJ1P and by the holders of the requisite number of shares of Fairway ;

      . Paragraph 15(a) read as follows :
      15. (a) UIP covenants and agrees to use its best efforts to cause the shares of Common Stock of Oeeanada delivered to Fairway pursuant to this Agreement (hereinafter referred to as the “Fairway Oeeanada Shares”) to be fully registered (as hereinafter defined), within eighteen months after the Closing Date. UIP further covenants and agrees to use its best efforts so that on the date such registration becomes effective, all of the Fairway Oeeanada Shares shall be includable in a firm Underwriting Agreement with a reputable Underwriter or to arrange for another lawful public or private market for all of the Fairway Oeeanada Shares and designate such market in writing to Fairway within eighteen months after the Closing Date. In the event such underwriting of Fairway Oeeanada Shares or such sale of Fairway Oeeanada Shares in any other then available lawful public or private market designated in writing by UIP to Fairway would result in a net cash price (free of all commissions) to the sellers of the Fairway Oeeanada Shares of at least $3.00 per share, UIP shall have no further obligation under this paragraph 15 hereof.
      In the event such underwriting or other then available lawful public or private market designated in writing by UIP to Fairway would result in a net cash price (free of all commissions) to the sellers of the Fairway Oeeanada Shares of less than $3.00 per share (the amount by which said net cash price is less than $3.00 per share is hereinafter referred to as the “Underwriting Price Deficiency”), then before such Registration Statement becomes effective, and before any sale of Fairway Oeeanada Shares is made in any other then available lawful jmblic or private market designated by UIP, as the case may be, UIP shall, at its election, either (i) pay in cash to Fairway an aggregate amount of money equal to the sum of the Underwriting Price Deficiency multiplied by the total number of Fairway Oeeanada Shares; or (ii) deliver to Fairway that number of validly issued, full paid, non-assessable and fully registered shares of Common Stock of Oeeanada, includable under said underwriting agreement or otherwise then freely and lawfully marketable shares of Common Stock of Oeeanada, which, when added to the total number of Fairway Oeeanada Shares and then multiplied by the net cash price (free of commissions) to the sellers of the Fairway Oeeanada Shares under said underwriting agreement or in a sale in any other lawful public or private market designated by UIP as above set forth, shall equal the Minimum Value (as hereinafter defined) ; or (iii) issue to Fairway validly issued, full paid and non-assessable shares of Common Stock of UIP, which shares are then, or within twenty-four (24) months after the Closing Date will be, fully registered and validly listed for trading on the American Stock Exchange and any other stock exchange on which shares of Common Stock of UIP are then listed for trading, and which shares on the date of issue have an aggregate fair market value (as hereinafter defined) of at least the sum of the Underwriting Price Deficiency multiplied by the total number of Fairway Oceanada Shares.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Monte Kay PERRY, Plaintiff-Appellant, v. GULF, MOBILE & OHIO RAILROAD COMPANY, Defendant-Appellee.
    No. 73-2261.
    United States Court of Appeals, Sixth Circuit.
    Argued June 3, 1974.
    Decided Aug. 22, 1974.

      Oliver B. Dickins, Jr., Nashville, Tenn., for appellant; Charles R. Terry, Morristown, Tenn., Harold R. Gunn, Humbolt, Tenn., on brief.
    Sidney W. Spragins, Spragins, Menzies & Rainey, Jackson, Tenn., on brief for appellee.
    Before WEICK, LIVELY and EN-. GEL, Circuit Judges.
   PER CURIAM.

Plaintiff-appellant brought this diversity action in the district court below to recover damages for the claimed wrongful death of her husband, William Frank Perry. Perry was killed on September 3, 1971 when an automobile he was driving collided with a Gulf, Mobile and Ohio Railroad Company freight locomotive at a crossing located within the city limits of Dyer, a community of about 2,000 in Gibson County, Tennessee.

The case was tried to a jury which returned a verdict in favor of plaintiff-appellant in the amount of $25,000. The jury also answered interrogatories in the form of a special verdict, in which it indicated that it found both the railroad and the decedent to be guilty of negligence, at the same time finding the negligence of the railroad to be proximate while finding that of the. decedent to be merely remote. Under Tennessee law, proximate contributory negligence bars recovery completely; remote contributory negligence only mitigates damages. Frankenburg v. Southern Railway Co., 424 F.2d 507 (6th Cir. 1970).

Following the jury verdict, defendant railroad moved for judgment notwithstanding the verdict, under Federal Rules of Civil Procedure 50(b). The trial court granted the motion and entered judgment for defendant, ruling that the evidence showed the deceased to have been guilty of proximate contributory negligence as a matter of law, thereby precluding any recovery by plaintiff. On appeal, Monte Kay Perry claims that the trial court erred in granting the motion for judgment notwithstanding the verdict and that the trial judge erroneously instructed the jury as to the Tennessee law of eontrib-utory negligence. She seeks reversal and a new trial, or in the alternative a reinstatement of the jury verdict.

In ruling upon the motion for judgment notwithstanding the verdict, the trial court was obliged to consider the evidence in the light most favorable to the plaintiff, and to ajlow all reasonable inferences to sustain the verdict. Wallace v. Louisville & Nashville Railroad Company, 332 F.2d 97 (6th Cir. 1964); Clinchfield R. R. Co. v. Forbes, 57 Tenn.App. 174, 417 S.W.2d 210 (1966); Poe v. Atlantic Coast Line Railroad Co., 205 Tenn. 276, 326 S.W.2d 461 (1959).

The evidence showed that the collision occurred at eight o’clock in the morning at the intersection of the “Gin” road and the railroad tracks in Dyer. An earlier rain had by that time turned to mist, and the locomotive’s lights and wipers were on. The train had approached the crossing from the north at a speed of between twenty-five and thirty miles per hour. Alvin W. Hawks, engineer in charge of defendant’s train, was the sole surviving eye witness to the accident. He testified that he first observed Perry’s vehicle when the train was about thirty feet from the intersection at which time the automobile was not more than ten feet from the tracks. Hawks immediately applied the brakes of'the train, but probably not until after impact. Perry was killed instantly. No skid marks were observed at the crossing after the accident. It was the un-contradicted testimony of the engineer as well as two independent witnesses that the train’s bell had been ringing and its whistle blowing within the city limits of Dyer for approximately one mile before the train reached the crossing.

Plaintiff’s decedent, a twenty-one year old agricultural worker, had resided in Gibson County most of his life. He was familiar with the South Street crossing and had used it frequently. The vicinity of the collision scene was quite clearly described in the testimony and illustrated by photographs received in evidence. The crossing was marked by the familiar cross-buck, the view of which from the road and the tracks was unobstructed. The only obstruction to the view of an automobile driver, approaching from the west, was the presence of out-buildings (bean bins) which were situated on the right-of-way between 300 and 400 feet to the north of the crossing and approximately 75 feet west of the tracks. This did in fact interfere somewhat with the vision of both approaching trains and motor vehicles, but upon reaching a point thirty or forty feet from the crossing, the view opened up, and at twenty-five feet from the tracks there was an unobstructed view to the north along the tracks for about 500 feet.

The trial court, in granting the judgment n. o. v. found that the only negligent act that could reasonably have been charged to the railroad under the circumstances was unreasonable speed. The City of Dyer had passed an ordinance the previous May limiting the speed of trains operating within the city to twenty-five miles per hour, although no notice of the passage of the ordinance had been given the railroad, nor had the speed limit been posted. Nevertheless, we assume for the purposes here, as did the trial judge, that there was evidence from which the jury could have found that the railroad was guilty of negligence which was a proximate cause of the accident.

Much of the discussion before the trial judge and before us on appeal has involved the question of whether the provisions of T.C.A. § 59-845 can be employed as a basis for finding the plaintiff’s decedent guilty of contributory negligence per se, in view of T.C.A. § 59-846 which provides in part that:

“None of the provisions of this section or §§ 59-845, 59-847 shall be construed as abridging or in any way affecting the common law right of recovery of litigants in damage suits that may be pending or brought against any railroad company or other common carrier.”

We do not reach this question because we find that in any event the district judge’s decision is amply supported by common law concepts consistently recognized by Tennessee courts.

The basic common law rule is stated in Hurt v. Yazoo & M.V.R. Co., 140 Tenn. 623, 205 S.W. 437, 442 (1918):

“The true rule which applies to this as all other questions of negligence is whether plaintiffs and defendants were in the exercise of ordinary care and prudence at the time of the accident.”

In the ordinary case, care and prudence on the part of a motorist requires, under Tennessee law, that he first look and listen before entering upon a known railroad crossing. Hurt v. Yazoo, supra, held that exceptions were to be found to the general rule, such as where, for adequate reasons, the driver was not conscious that he was approaching a crossing, or where the driver’s faculty for ascertaining the danger was impaired because of other circumstances attending the accident. In such cases, the court held “what is due care in the circumstances of the exception is ordinarily a question for the jury.” (emphasis added). Nevertheless, held the court in Yazoo, “in the case of crossing a railroad track, the look and listen rule is the proper measure of plaintiff’s duty under ordinary circumstances. . .”

The court further stated:

“The rule that it is negligence per se to enter upon a railroad track without looking or listening has been applied to the ordinary case in which the plaintiff, or the deceased, was not prevented from seeing or hearing by any other circumstances, and had the use of his faculties. In such case an ordinarily prudent man is deemed, under the law, to be guilty of such negligence as would bar a recovery if he entered upon the track without doing so. And it is only in exceptional cases that the rule does not apply, and in cases in which the facts relied upon as creating the exception itself are not superinduced by the want of due care.” Hurt v. Yazoo, supra, 205 S.W. at 442.

Our examination of caselaw since Yazoo fully satisfies us that the

foregoing is still a proper statement of the Tennessee common law. Maxwell v. Western-Atlantic Railroad Co., 295 F. Supp. 740 (E.D.Tenn.1967); Flinchum v. Clinchfield Railroad Co., 460 F.2d 252 (6th Cir. 1972). No circumstances which would bring this case within the exception to the general rule are shown by the facts here. The crossing was marked and plainly visible to motorists approaching from the west. Unlike the decedent in Wallace v. Louisville and Nashville Railroad Company, 332 F.2d 97 (6th Cir. 1964), Perry was a local resident and familiar with the crossing. The undisputed testimony revealed that the whistle and the bell on the train had been in operation. The crossing itself was level and quite ordinary.

Perry was bound by what he could have discovered in the exercise of ordinary care. Flitchum v. Clinchfield R. Co., supra. In light of the circumstances attending the collision here, the trial court determined that had Perry been exercising due care for his own safety, he would have been able to avoid the accident. We agree. The conclusion is inescapable that in driving upon the tracks and into the path of the train, plaintiff’s decedent was guilty of contributory negligence. It is equally clear that his negligence operated concurrently with any of the defendant and was a “predominant” cause of his death, and thus, under the standards set forth in Grigsby & Co. v. Bratton, 128 Tenn. 597, 163 S.W. 804 (1912) and Todd v. Cincinnati, N. O. & T. P. Ry. Co., 135 Tenn. 92, 185 S.W. 62 (1915), was proximate rather than remote, as a matter of law.

We conclude, therefore, that the district court properly granted defendant-appellee’s motion for judgment notwithstanding the verdict. It is therefore unnecessary to consider appellant’s claims respecting the charge to the jury.

Affirmed.

      . 59-845. Obedience to signal indicating approach of train. — (a) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when :
      1. A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train ;
      2. A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train;
      3. A railroad train approaching within approximately one thousand five hundred (1,500) feet of the highway crossing emits a signal audible from such distance # and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard;
      4. An approaching railroad train is plainly visible and is in hazardous proximity to such - crossing.
      (b) No person shall drive any vehicle through, around or under any crossing gate or barrier at a railroad crossing while such gate or barrier is closed or is being opened or closed. [Acts 1955, ch. 329, § 44.]

      . Plaintiff-appellant’s argument in this regard is based upon an opinion by the Tennessee Supreme Court in which an earlier similar statute was construed. See Crawford v. Nashville C. & St. L. Ry., 153 Tenn. 642, 284 S.W. 892 (1926).


text:
    ESTATE of Anthony GERACI, Deceased, Norma Geraci, Executrix, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 74-1230.
    United States Court of Appeals, Sixth Circuit.
    Argued June 19, 1974.
    Decided Sept. 5, 1974.
    Anthony LaPerna, Cleveland, Ohio, for petitioner-appellant; Rudolph J. Geraci, Cleveland, Ohio, on briefs.
    David E. Carmack, Tax Div., Dept, of Justice, Washington, D. C., for respondent-appellee; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Ben-net N. Hollander, Michael J. Roach, Attys,. Tax Div., Department of Justice, Washington, D. C., on briefs.
    Before PHILLIPS, Chief Judge, and WEICK and ENGEL, Circuit Judges.
   PER CURIAM.

The sole issue in this appeal is whether the failure of an executrix to file a federal estate tax return within the prescribed time was due to reasonable cause and not due to willful neglect. Int. Rev. Code of 1954, § 6651(a).

At the time of the decedent’s death, March 27, 1967, a federal estate tax return was required to be filed “within 15 months after the date of the decedent’s death.” Int. Rev. Code of 1954, § 6075(a). The due date for the estate tax return in the present ease was, therefore, June 27, 1968. The decedent’s widow, the appellant on behalf of the estate, was appointed executrix of the estate on May 1, 1967. The federal estate tax return was filed on August 28, 1968.

In accordance with § 6651(a), the Commissioner asserted a 15 per cent addition to the appellant’s estate tax, amounting to $4,182.46, for failure to file a return on time. Section 6651(a) imposes a five per cent addition for each month or fraction thereof for which the return is tardy, not to exceed 25 per cent. The 15 per cent addition in the present case was determined on the basis of the appellant’s return being filed two months and one day late.

The appellant petitioned the United States Tax Court wherein she asserted that the following three reasons were sufficient to constitute reasonable cause for the tardy filing of the return: 1) The executrix, a housewife with no income of her own and little or no business experience, relied entirely on the attorney for the estate to file the return; 2) The attorney was incapacitated by illness during June and July of 1968; 3) The attorney was under the mistaken impression that “the return was due 15 months from the date of the appointment of the executrix rather than the date of death.”

The Tax Court, in an opinion prepared by Judge Theodore Tannenwald, Jr., found that the above factors did not constitute reasonable cause for the failure to timely file the return. 32 CCH Tax Ct. Mem. 424 (1973). We affirm because we cannot hold on this record that the findings of the Tax Court are clearly erroneous. Rule 52(a), Fed.R. Civ.P. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, (1960); Estate of Frank Duttenhofer v. 289-291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 Commissioner, 49 T.C. 200, 204 (1967), aff’d, 410 F.2d 302 (6th Cir. 1969). Compare, In re Fisk’s Estate, 203 F.2d 358, 359 (6th Cir. 1953).

Although we affirm, we do so unenthusiastically. The opinion of the Tax Court contains language critical of the “entirely passive role” of the executrix, 32 CCH Tax Ct. Mem. at 426, which we believe is unjustified. It was stipulated that the executrix was a housewife who had no income of her own. She had little or no business experience and it was further stipulated that she relied entirely on the attorney for the estate, a kinsman of her deceased husband, to file the federal estate tax return.

Counsel for the executrix states as follows in his reply brief:

“[DJiscussions were had [between the executrix and him] as to what had to be done and when. It would be unrealistic to assume that there was no discussion between the Executrix and the attorney as to what had to be done and when, how much money would have to be set aside for this tax and that tax, etc.” (Emphasis in original.)

Further, counsel for the executrix states that after his illness he went to the office of the Estate and Gift Tax Group of the Cleveland District of the Internal Revenue Service (IRS), presumably prior to August 28, 1968, and orally requested an extension of time to file the estate tax return. Counsel states that an IRS employee informed him that the penalty set forth in the statute was seldom enforced where the return was filed within a reasonable time and there was some reason for delay. Counsel did not make the application for extension of time in writing as required by Treas. Reg. § 1.6081-1 (b) (1), and there is no verification in the record of any aspect of his conversation with IRS employees in the Cleveland District.

Section 6651(a) places the burden on the taxpayer of proving that the. failure to timely file a federal tax return was “due to reasonable cause and not due to willful neglect.” Absent such a showing by the taxpayer, imposition of the addition is mandatory. Cf. Fidelity & Columbia Trust Co. v. Commissioner of Internal Revenue, 90 F.2d 219, 223 (6th Cir.), cert. den., 302 U.S. 723, 58 S.Ct. 44, 82 L.Ed. 558 (1937). Although we are sympathetic with the plight of the executrix and would have preferred that the IRS have settled this matter at the administrative level and thereby avoided a harsh result, we cannot reverse the decision of the Tax Court on the record before us.

Affirmed.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. James E. SMITH, Appellant.
    No. 74-1257.
    United States Court of Appeals, Fourth Circuit.
    Submitted July 1, 1974.
    Decided Sept. 10, 1974.
    Certiorari Denied Dec. 23, 1974.
    See 95 S.Ct. 680.
    Edward D. Barnes and Murray J. Janus, Richmond, Va., on brief for appellant.
    Brian P. Gettings, U. S. Atty., and Roger T. Williams, Asst. U. S. Atty., on brief for appellee.
    Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.
   PER CURIAM:

Tried to a jury, James E. Smith was convicted on all counts of a three-count indictment charging him with attempting to evade or defeat his federal income tax for the years 1968, 1969, and 1970 in violation of 26 U.S.C. § 7201. On appeal Smith asserts that there was insufficient evidence to support his convictions. Smith, who was proceeded against by the government under the net worth method, claims that the evidence failed to: (1) properly establish the opening net worth figure; (2) demonstrate that the government adequately investigated Smith’s possible sources of funds prior to 1968; (3) establish either a likely source of income or exclude all possible sources of nontaxable income; (4) properly allocate the increases in Smith’s net worth among the years set forth in the indictment; (5) establish that Smith willfully attempted to evade payment of his income tax for 1968.

Upon a careful examination of the briefs and the record, we conclude that the evidence amply supports the convictions under the net worth method. See Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Calderon, 348 U.S. 160, 75 S.Ct. 186, 99 L.Ed. 202 (1954); United States v. Newman, 468 F.2d 791 (5th Cir. 1972), cert. denied, 411 U.S. 905, 93 S.Ct. 1527, 36 L.Ed.2d 194 (1973); Mighell v. United States, 233 F.2d 731 (10th Cir.) cert. denied, 352 U.S. 832, 77 S.Ct. 47, 1 L.Ed.2d 52 (1956).

Accordingly, we dispense with oral argument and affirm the judgment of the district court.

Affirmed.


text:
    WINN-DIXIE STORES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-2410.
    United States Court of Appeals, Fourth Circuit.
    ' Argued May 9, 1974.
    Decided Sept. 18, 1974.
    Charles F. Henley, Jr., Jacksonville, Fla. (Hamilton & Bowden, Jacksonville, Fla., on brief), for petitioner.
    William H. DuRoss, III, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel, N. L. R. B., John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Jane P. Schlaifer, Atty., Washington, D. C., on brief), for respondent.
    Before BRYAN, Senior Circuit Judge, and BUTZNER and FIELD, Circuit Judges.
   PER CURIAM:

The sole issue raised by this petition for review, and cross-application for enforcement, of an order of the National Labor Relations Board is whether back pay for three illegally discharged employees should be tolled during an economic strike that followed their discharge. The administrative law judge, noting that the discharged employees were active adherents of the union, concluded that it was reasonable to presume that they would not have accepted work while the strike was in progress. He, therefore, tolled back pay 'during the period of the strike, although the employer had made no offer of reinstatement.

The Board reversed. It held that any uncertainty about whether the three employees would have participated in the strike should be resolved against the employer. The Board reasoned that the employer’s illegal action caused the uncertainty, which it could dispel at any time by an offer of reinstatement. The fact that one of the employees sought reemployment during the strike illustrated to the Board the fallacy of presuming that a union adherent will invariably continue to support a strike throughout its duration. Consequently, it concluded that the company had failed to prove that the discharged employees were not available for work.

The company rests its argument for denial of enforcement largely on NLRB v. Rogers, 406 F.2d 1106 (1970), and 427 F.2d 712 (6th Cir. 1970). In Rogers, the court, holding that pro-union activity was relevant, ultimately concluded the Board’s order lacked substantial evidentiary support. However, we do not find that infirmity in the facts and the inferences that can be reasonably drawn from the evidence in the case presently before us. Furthermore, we believe that the creation of a per se rule requiring back pay for an illegally discharged active union adherent to be tolled during a subsequent economic strike would be an unwarranted intrusion on the Board’s responsibility to fashion appropriate remedies to implement the Act. See Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568 (1942).

For reasons adequately stated by the Board, we believe that back pay should not be tolled. Enforcement is therefore granted.

      . The underlying controversy is set out in Winn-Dixie Stores, Inc. v. NLRB, 448 F.2d 8 (4th Cir. 1971), which upheld the Board’s determination of illegal discharge.

      . Winn-Dixie Stores, Inc., 206 NLRB 125 (1973).


text:
    UNITED STATES of America, Appellee, v. William ROVENDRO and Christopher Espinosa, Appellants.
    No. 1236, Docket 73-2278.
    United States Court of Appeals, Second Circuit.
    Submitted Aug. 15, 1974.
    Decided Sept. 10, 1974.
    Martin Light, Brooklyn, N.Y. (Stanley M. Meyer, Brooklyn, N.Y., of counsel), for appellants.
    Joan S. O’Brien, Asst. U.S. Atty. (David G. Trager, U.S. Atty. for the E.D. of New York, Paul B. Bergman, Asst. U. S. Atty., of counsel), for appellee.
    Before OAKES, Circuit Judge, and FRANKEL and KELLEHER, District Judges.

       Of the Southern District of New York and the Central District of California, respectively, sitting by designation.

   PER CURIAM:

Appellants’ sole ground for appeal before this court is that they should have been allowed to withdraw their guilty pleas. Having examined the relevant transcripts and contentions addressed thereto, we are of the opinion that the judgments must be affirmed.

Judgments affirmed.


text:
    GULF OIL CORPORATION, Appellant, v. William E. SIMON, Administrator of the Federal Energy Office, Appellee.
    No. DC-24.
    Temporary Emergency Court of Appeals.
    July 29, 1974.
    W. B. Edwards and Catherine C. Mc-Culley, Houston, Tex. (Francis J. Walsh, Washington, D.C., on the brief), for appellant Gulf Oil Corp.

      Paul T. Michael, Atty., U. S. Dept, of Justice (Carla A. Hills, Asst. Atty. Gen., and Stanley D. Rose, Atty., Dept, of Justice, on the brief), for appellee United States.
    Before HASTIE, ANDERSON and JOHNSON, Judges.
   PER CURIAM:

Gulf Oil Corporation brought this suit in the District Court for the District of Columbia against the Administrator of the Federal Energy Office (hereinafter, FEO) to enjoin the mandatory allocation of crude oil and other petroleum products as prescribed in FEO regulations, originally effective December 27, 1973 and amended and implemented in January, 1974. 39 Fed.Reg. 3908. These regulations imposed upon Gulf, a producer, importer and refiner of crude oil, a duty to offer to sell a specified portion of its total supply of crude oil to other refiners, some of them its major competitors, who were less adequately supplied with crude oil. Thus, all refiners were assured sufficient crude oil to operate their refineries at a specified minimum percentage of capacity. Gulf, however, wished to realize the economic advantage of its superior supply position and its large refinery capacity by retaining and refining its entire crude oil supply.

In April, 1974 the district court found that the scheme of allocation prescribed by the regulation then in effect had a rational basis and for that reason refused to enjoin its enforcement. This appeal followed.

We have no doubt that the rational basis test is applicable here. Cf. Pacific Coast Meat Jobbers Assn., Inc. v. Cost of Living Council, Em.App., 1973, 481 F.2d 1388, 1391. FEO undertook to carry out the express mandate of Congress in section 4(a) of the Emergency Petroleum Allocation Act of 1973, 87 Stat. 627, that the President impose temporary mandatory allocations of available supplies of crude oil, residual fuel oil and refined petroleum products in amounts and at prices to be specified by regulations. At a time when this country was deprived of crude oil from important foreign sources and our total supply was substantially less than the immediate needs of refiners as well as consumers, it was not unreasonable for FEO to impose a scheme of allocation designed, among other objectives, to enable all refiners to continue in competitive operation, though the scheme required the better supplied producers and importers to offer to sell some of their crude oil to their less adequately supplied competitors. In this connection, the record indicates that only about five per cent of the total national supply of domestic and foreign crude oil had to be offered for sale under the formula devised by FEO, although an individual refiner’s required offering might be larger. Moreover, that part of a refiner’s supply during any quarter of 1974 which exceeded its supply during the comparable quarter of 1973, was by regulation totally exempted from the crude oil allocation program.

Gulf stresses various shortcomings and undesirable consequences of particular details of allocation as originally mandated and put into effect. Administrator Simon has countered with a detailed affidavit setting out his rationalization and justification of various provisions of which Gulf has complained. Also, acknowledging that the circumstances required hurried action without benefit of experience, FEO points out that it has welcomed constructive criticism and has undertaken from time to time to revise and improve its regulations.

The scheme of allocation that was challenged by Gulf’s complaint was operative only from February through May, 1974. Effective June 1, 1974, the original regulations have been superseded in major part by significantly different requirements. 39 Fed.Reg. 17290, §§ 211:61-71. Gulf recognizes that the currently effective regulatory scheme is unlike its predecessor, though it characterizes it as even worse. However, the supercession of those regulations which Gulf has challenged in its present complaint as arbitrary and unfair makes inappropriate any adjudication now of the validity of requirements no longer in effect.

In these circumstances Gulf seeks to avoid the legal consequences of mootness by urging that this cause be remanded to the district court for consideration whether the new and presently effective crude oil allocations are valid. We decline to follow that course. This suit sought equitable relief from particular regulations and proceeded to judgment on that controversy. If new considerations provide a basis for challenging the validity of significantly different superseding regulations that now are in effect, that can appropriately be done in a new suit. Otherwise, an unending series of post-judgment controversies about new subject matter could be litigated under the umbrella of a suit already fully considered and decided. Moreover, no major delay need result from requiring Gulf to file a new complaint. That filing should not be significantly more burdensome than an amendment of the present complaint to read as an attack upon the new regulations. And we have no doubt that the district court would move as expeditiously to hear and dispose of a new suit as it would if the new claim were presented as something added to the present suit.

We have not overlooked an argument that the controversy over the regulations under which the allocation for February through May was made is not moot because a regulation now provides that, if a producer or importer has offered but has been unable to sell to other refiners the full amount of crude oil that he is required to make available to them during a particular allocation period, he is required to make this unsold amount available as a carry-over during the next quarter. It is conceded that Gulf has such a carry-over from the February-May allocation period into the present quarter. However, the regulation also provides that any such carry-over shall be deducted from the “total allocation obligation” for the new quarter. The foregoing may be an oversimplification but it seems to be the gist of a rather complex scheme. In any event, it is not clear that Gulf’s burden of required selling is significantly enlarged beyond what it otherwise would have been for the current quarter by reason of carryover from the preceding allocation period.

But quite apart from this, we find decisive the fact.that no carry-over provision appears in the regulations that were in effect during the February-May period and are challenged in this suit. It is only the new regulations, 39 Fed. Reg. 17292, § 211.65(d)(3) & (4), issued May 10, 1974, after the district court had entered final judgment in this suit that instituted the carry-over scheme. True, the quantity of crude oil to which the carry-over obligation applies is determined by the operation of the original regulations from February through May. But since the carry-over was created by the new regulations, any dispute about the validity of that imposition is more appropriately litigated in a suit challenging the new regulations than as an issue in- the present dispute concerning the old ones.

Separately, Gulf argues that the entire administrative scheme of mandatory allocation of crude oil is invalid because its inauguration was not attended by such a statement of its environmental impact as the National Environmental Policy Act, 42 U.S.C. § 4332, requires in connection with proposed major federal actions that significantly affect the quality of the human environment.

The allocation of all available supplies of crude oil was ordered by FEO pursuant to a determination by Congress in the Emergency Petroleum Allocation Act that immediate emergency action was necessary to avoid foreseen catastrophic nationwide consequences of a critical shortage of crude oil, residual fuel oil and petroleum products essential for domestic heating, transportation and industrial production. Beyond expressly directing the President to allocate available supplies or crude oil among refiners, Congress underscored the need for immediate action by specifying in section 4(a) of the Act that the President should promulgate regulations within 15 days after the enactment of the statute and make them effective no later than 15 days after their promulgation. Thus, a national scheme of mandatory allocation had to be operative within a few weeks after enactment of the controlling emergency legislation. Mandel v. Simon, Em.App., 1974, 493 F.2d 1239.

In contrast, the National Environmental Policy Act and implementing regulatory guidelines contemplate and require deliberate formulation of environmental studies of proposed major federal undertakings, their consideration by many concerned persons and agencies, and administrative review of comments and criticisms from various sources before a definitive environmental impact statement can issue. See 38 Fed.Reg. 20550, §§ 1500.7-11. The short period Congress allowed for the formulation and effectuation of a nationwide scheme of oil allocation would have sufficed for no more than the preliminary stages of development of an environmental impact statement.

In these circumstances, Congress must have intended that the President proceed forthwith to allocate oil supplies without the elaborate formal determination of environmental impact for which the National Environmental Policy Act provides. As one court has said, “[t]he process by which . . . [environmental impact statements] are produced and circulated is a lengthy one. To require its completion before the promulgation of an emergency temporary standard would impair the purpose to provide speedy protection from grave dangers . . . . ” See Dry Color Mfrs. Assn., Inc. v. Department of Labor, 3d Cir. 1973, 486 F.2d 98, 107-108.

In our present ruling, we do not consider whether or when circumstances may be such that some other regulation proposed by the Federal Energy Office must be preceded and attended by an environmental impact statement. We deal only with the allocation that is challenged in this case and the particular circumstances, including a legislative timetable, that made its effectuation lawful without an attendant environmental impact statement.

The judgment of the district court is affirmed.


text:
    FLUOR OCEAN SERVICES, INC., Plaintiff-Appellee, v. Howard F. HAMPTON et al., Defendants-Third Party Plaintiffs. Benjamin C. TISDALE, III, Defendant-Third Party Plaintiff-Appellant, v. FLUOR CORPORATION aud ABC Insurance Company, Third Party Defendants. Benjamin C. TISDALE, III, Plaintiff-Appellant, v. FLUOR OCEAN SERVICES, INC., Fluor Corporation and ABC Insurance Company, Defendants-Appellees.
    No. 73-3075
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 25, 1974.
    Felicien P. Lozes, New Orleans, La., for Benjamin C. Tisdale, III.
    Milton E. Brener, Herbert J. Garon, Charles E. Leche, David R. Normann, New Orleans, La., for plaintiff-appellee.
    Donald V. Organ, New Orleans, La., for Howard F. Hampton.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

       Rule 18, 5th Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

The District Court for the Eastern District of Louisiana dismissed as premature a complaint alleging that plaintiff had been libelled by defamatory statements made by defendant in pleadings in an independent civil action, which is still pending. Since the law of Louisiana clearly prohibits such a suit until the independent legal action is completed, we affirm.

Fluor Ocean Services, Inc. brought a diversity damage action against Benjamin C. Tisdale, III, in which Fluor alleged that “Tisdale had committed various breaches of the fiduciary duty which he owed Fluor. Taking umbrage at these allegation's, Tisdale filed both a counterclaim and a separate suit against Fluor for libel asserting damages in the amount of $20,000,000. Fluor’s original action is still pending before the District Court.

After consolidating the two suits, the District Court on Fluor’s motion dismissed Tisdale’s libel claims on the ground that the law of Louisiana, which controls this diversity case, clearly holds that any cause of action which might arise from defamatory statements made in a judicial action does not arise until after the termination of that proceeding.

In Manuel v. Deshotels, 160 La. 652, 107 So. 478 (1926), the Supreme Court of Louisiana stated that

. when a suit for damages for libel is based upon allegations contained in another suit, the second suit must await the termination of the action wherein the defamatory aver-ments are made.

107 So. at 479. With consistent frequency the Louisiana courts have applied this well settled principle. Loew’s, Inc. v. Don George, Inc., 237 La. 132, 110 So.2d 553 (1959); Howard v. Coyle, 163 La. 257, 111 So. 697 (1927); Wolf v. Royal Insurance Co. of Liverpool, 130 La. 679, 58 So. 507 (1912); Udell, Inc. v. Ascot Oils, Inc., 177 So.2d 178 (La.Ct. App.1965); Giordano v. Tullier, 139 So. 2d 15 (La.Ct.App.1962); Thomas v. Mobley, 118 So.2d 476 (La.Ct.App.1960); Cox v. Cashio, 96 So.2d 872 (La.Ct.App. 1957). The reasoning behind this rule of law, as expressed by the Louisiana court in Robinson Mercantile Co. v. Freeman, 172 So. 797 (La.Ct.App.1937), is simply that

. an action for libellous statements made by a party litigant . does not arise until the party making the allegations has had the opportunity of proving the truth of the allegations in the proceedings in which they are made.

172 So. at 799. The law does not allow a person to make defamatory statements with impunity, but it does serve to order the process of justice in a rational manner. Under this clear statement of Louisiana law, the District Court properly dismissed Tisdale’s complaint as premature, inasmuch as Fluor’s suit against Tisdale has not been terminated.

Tisdale would also have us review the District Court’s denial of his motion to dismiss certain causes of action asserted in Fluor’s complaint. The denial of a motion to dismiss is not an appealable order, however, and we have no jurisdiction to entertain that portion of this appeal.

The motion to dismiss came about in this way. For the purpose of aiding Tisdale in conducting discovery,' the District Court ordered Fluor to file a list of . the factual particulars of each of its claims against Tisdale. Pursuant to that order, Fluor filed a document entitled “Factual Particulars of Plaintiff’s Claim.” Upon receipt of the particulars, Tisdale moved to dismiss those claims which Fluor had stated in its original complaint but had failed to detail in the subsequent document. Tisdale’s appeal is from the denial of that motion.

Under 28 U.S.C.A. § 1291, this Court has jurisdiction of appeals from all final decisions of the district courts within this judicial circuit, except where a direct review may be had in the Supreme Court. The denial of a motion to dismiss, however, is not a final decision of a district court and, therefore, is not an appealable order under 28 U.S.C.A. § 1291. Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945); Wallace v. Norman Industries, Inc., 467 F.2d 824 (5th Cir. 1972). Even if we were to consider Tisdale’s motion as one for summary judgment on the several claims, this Court has held that an order denying a motion for summary judgment is interlocutory and, thus, is not appealable under 28 U.S.C.A. § 1291. Tabacalera Severiano Jorge, S. A. v. Standard Cigar Co., 392 F.2d 706 (5th Cir.), cert. denied, 393 U.S. 924, 89 S.Ct. 255, 21 L.Ed.2d 260 (1968). Neither is the District Court’s order denying Tisdale’s motion to dismiss appealable under 28 U.S.C.A. § 1292(b), inasmuch as the District Court has not certified the question for appeal. Accordingly, we are without jurisdiction and therefore dismiss Tisdale’s appeal from the order of the District Court denying his motion to dismiss.

Affirmed in part, dismissed in part.


author: ELY, Circuit Judge:

text:
    TAGAROPULOS, S.A., a corporation, Appellant, v. S.S. SANTA PAULA ex SS HANS IS-BRANDTSEN, its engines, tackle, apparel, furniture and spares, and all persons intervening for their interests therein, and Allied Tankers, Inc., a corporation, Defendants, Santa Margarita Tankers, Inc., Appellee.
    No. 73-2708.
    United States Court of Appeals, Ninth Circuit.
    Sept. 5, 1974.
    Allan F. Bullard, San Pedro, Cal., for appellant.
    Francis J. MacLaughlin, of Lillick, McHose, Wheat, Adams & Charles, Los Angeles, Cal., for appellee. '
    Before ELY and CARTER, Circuit Judges, and EAST, District Judge.

       Honorable William G. East, Senior United States District Judge, Eugene, Oregon, sitting by designation.

   OPINION

ELY, Circuit Judge:

This appeal arises from the District Court’s judgment denying the claim of appellant Tagaropulos, S.A., a corporation, (hereinafter Tagaropulos) against appellee Santa Margarita Tankers, Inc. (hereinafter Santa Margarita). The action was brought under 46 U.S.C. § 971, entitling to persons furnishing necessaries to vessels the right to a maritime lien, and under 28 U.S.C. § 1333. We have jurisdiction under 28 U.S.C. § 1291.

The District Court found that Tagaro-pulos’s alleged lien was barred by laches. The sole issue here is whether that finding was clearly erroneous. We affirm.

There is no significant dispute as to the facts. Tagaropulos, which operated a ship chandlering business in the Panama Canal Zone, delivered provisions to the ship from November, 1968, to June, 1970. During that time, the vessel was owned by Allied Tankers, Inc., a subsidiary of the Isbrandtsen Line. Although the terms of credit called for payment in thirty days, Tagaropulos allowed over two years to expire before the shipowner made any payment whatsoever. Allied’s purchasing agent, Central Purchasing & Service, Inc., did pay Tagaro-pulos $1,463.78 on February 17, 1970, and $11,431.32 on June 6, 1970. With a balance of over seven thousand dollars still owing, Tagaropulos allowed the ship’s purchasing agent to charge additional supplies to the ship on June 18, 1970. The amount of this purchase was $24,261.44. No further payments were ever made, and the ship never returned to the Canal Zone.

It is apparent, we think, that Tagaro-pulos was inexcusably dilatory in attempting to collect the amounts owed to it by the ship. Despite the fact that Ta-garopulos could have arrested the ship on any of the dates when it traversed the Canal between November, 1968, and June, 1970, Tagaropulos took no action other than attempting to contact the ship’s purchasing agent. Furthermore, Tagaropulos could have ascertained the location of the ship after June, 1970, by either contacting Isbrandtsen’s local agent or by requesting information from the Military Sea Transport Service. Ta-garopulos knew that the ship was being operated under military contract. Ta-garopulos did not file suit against either Allied Tankers or Central Purchasing & Services, Inc., nor did it seek to file a lien against the ship in its home port pursuant to 46 U.S.C. § 925(a).

The ship, which was advertised for sale for over a year, was eventually purchased from Allied Tankers by Santa Margarita on December 6, 1970. Prior to the purchase, Santa Margarita had checked both the home port and the ship’s log for liens outstanding against the ship. Although no liens were entered in the log, Santa Margarita did discover therein entries for repairs. Santa Margarita contacted the shipyards that had made these repairs and learned that there were unpaid bills outstanding. In addition, various shipyards had recorded liens against the ship in its home port, and Santa Margarita duly noted these liens. The record clearly reveals that Santa Margarita made every effort to unearth all claims against the ship. Obviously, any such liens or unpaid bills would affect the vessel’s purchase price. Furthermore, Allied Tankers assured Santa Margarita, both orally and in writing, that no claims other than those discovered by Santa Margarita existed against the ship.

The standard of diligence required by the holder of an unrecorded lien against a bona fide purchase of a vessel is “a high degree of diligence.” See Merchants & Marine Bank v. The Fishing Vessel T. E. Welles, 289 F.2d 188, 190 (5th Cir. 1961) and cases collected therein; The Everosa, 93 F.2d 732, 735 (1st Cir. 1937); Waterways Marine, Inc. v. Brooks Liquid Transport, Inc., 291 F.Supp. 703 (N. D. Ill. 1968). In Waterways Marine, supra, the District Court considered a number of factors relevant to a determination that the lienholder had not exercised the high degree of diligence required. These factors were (1) a failure to file a claim in the ship’s home port; (2) a failure to arrest the ship on occasions when it could have been arrested; (3) a failure to assert a claim against the ship’s purchaser until nearly a year had elapsed from the last date of a sale to the ship; and (4) a failure to respond to a request from a credit association “for advice of” or to “file notice of” any claims or liens against the ship.

In our case, Tagaropulos did not file a home port lien, nor did it attempt to arrest the vessel when it sailed through the Canal Zone. Moreover, Tagaropulos never attempted to ascertain the ship’s location and arrest it in another port. It waited for over two years before taking any action whatsoever in attempting to recover even a partial payment of Allied’s bill. And at a time when Allied still owed over seven thousand dollars to Tagaropulos, the latter supplied the ship with over twenty-four thousand dollars worth of supplies. When the ship was ultimately purchased by Santa Margarita, Tagaropulos delayed filing suit for an additional sixteen months thereafter.

From the foregoing, the conclusion is inescapable that Tagaropulos “slept on its rights.” It failed to exercise even a minimum degree of diligence, and the District Court properly held, in effect, that to penalize the ship’s innocent purchaser would work a gross inequity.

Affirmed.


author: CUMMINGS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles G. NICKELS, Defendant-Appellant.
    No. 74-1153.
    United States Court of Appeals, Seventh Circuit.
    Argued June 6, 1974.
    Decided Sept. 12, 1974.
    Rehearing En Banc Denied Nov. 1,1974.

      Thomas P. Sullivan, J., Stephen Walker, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Gary L. Starkman, Royal B. Martin, Jr., Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
    Before CLARK, Associate Justice, CUMMINGS, Circuit Judge, and BEAMER, Chief District Judge.

      . Associate Justice Tom C. Clark of the Supreme Court of the United States (Ret.) is sitting by designation.

      . Chief Judge George N. Beamer, United States District Court, Northern District of Indiana, is sitting by designation.

   CUMMINGS, Circuit Judge.

Defendant, a Chicago police officer, was convicted by a jury for making a false declaration before a grand jury in violation of 18 U.S.C. § 1623. He received an 18-month sentence.

According to the one-count indictment, defendant told the grand jury in substance that while in the performance of his duties as a Chicago police officer, he had never received any money from any persons, where as in truth he had received money from Joseph Dawson and John Cello between January 1965 and May 1966 while in the performance of such duties.

In 1964, defendant was assigned to the 18th Chicago Police District Vice Squad to conduct wire surveillance. He remained there until the spring of 1966. At the trial, a former Chicago policeman, Joseph Dawson, and suspended policeman John Cello testified that defendant was given a share of monthly payoffs given to Dawson and Cello by gambling interests and tavern keepers. The division of the payoffs took place in secrecy in defendant’s presence at the Olympic Hotel in Chicago on several occasions. The “package” was divided among the sixteen members of the Vice Squad. Martin B. Brody keeper of the Olympic Hotel, testified that he gave a police officer $75 in the defendant’s presence “to keep the vice squad away.” He also testified that he gave defendant $75. on another occasion.

I

Defendant first argues that his grand jury testimony should have been suppressed because it was given under the duress of Rule 51 of the Chicago Police Department prohibiting officers from failing to give evidence before a grand jury. On the basis of prior Supreme Court decisions, we held Rule 51 constitutionally invalid because it denied police officers the privilege against self-incrimination where criminal prosecution may have followed. Confederation of Police v. Conlisk, 489 F.2d 891 (7th Cir. 1973). Subsequently, we held that even in the face of such a rule a public employee is not privileged to lie before a grand jury, stating:

“We find no reason or justification for extending this umbrella of [Fifth Amendment] protection to shield a witness against prosecution for knowingly giving false testimony.” United States v. Devitt, 499 F.2d 135, 142 (7th Cir. 1974).

To the same effect, see United States v. Pacente, 503 F.2d 543, 548-549 (7th Cir. en banc, 1974); United States ex rel. Annunziato v. Deegan, 440 F.2d 304, 306 (2d Cir. 1971); cf. United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L. Ed.2d 275; United States v. Cooper, 493 F.2d 473, 474 (5th Cir. 1974).

Defendant complains that no agent of the federal government interviewed him prior to the time he appeared before the grand jury. There is no such requirement.

Defendant urges that the Government was not entitled to propound questions to thé defendant before the grand jury concerning events prior to the five-year statute of limitations. The point is without merit because the grand jury’s scope of inquiry is not limited to events which may result in criminal prosecution. Devitt, supra, 499 F.2d 140; United States v. Cohn, 452 F.2d 881, 883 (2d Cir. 1971), certiorari denied, 405 U.S. 975, 92 S.Ct. 1196, 31 L. Ed.2d 249.

Defendant next contends that before he testified, the prosecutor wrongly advised him that anything he said could be used against him in subsequent criminal proceedings. Although it reflects badly on the Government, such an over-warning is no defense to a perjury charge.- Compare the erroneously required waiver in United States ex rel. Annunziato v. Deegan, 440 F.2d 304, 306 (2d Cir. 1971). The incorrect warning simply restated one horn of the dilemma which Rule 51 would have created if valid. While it probably made that apparent dilemma more salient to the witness, it does not change the nature of the witness’ dilemma. Accordingly, the warning does not distinguish this case from Devitt and Pacente.

Although defendant states that the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 with respect to right to appointed counsel were inadequate, the transcript of the colloquy between the defendant and prosecutor before the grand jury shows that defendant was adequately informed about that right.

The Government’s failure to advise Nickels that he was a potential defendant does not bar a perjury prosecution for false testimony before a grand jury. United States v. Di-Giovanni, 397 F.2d 409, 412 (7th Cir. 1968), certiorari denied, 393 U.S. 924, 89 S.Ct. 256, 21 L.Ed.2d 260. Similarly, it was unnecessary to warn defendant of the potential for perjury. United States v. Winter, 348 F.2d 204, 210 (2d Cir. 1965), certiorari denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360.

Defendant also argues that the Government's entire course of conduct discussed in this section of the opinion supports an inference that he was called before the grand jury for the purpose of procuring perjured testimony. Since the questions were material to the grand jury’s investigation, we doubt that we can inquire into the motivation for asking them. Cf. Devitt, 499 F.2d 140; United States v. Lazaros, 480 F.2d 174, 177 (6th Cir. 1973). But even if the questions were asked with the expectation of perjured answers, defendant cannot complain. This is not an entrapment case. Lazaros at 178-179. It was defendant’s predisposition to lie his way out of his difficulties that led to this crime. The Government did not solicit or encourage perjury; at most it created a situation in which perjury appeared expedient. This is not “so outrageous” as to bar prosecution. United States v. Russell, 411 U.S. 423, 431, 93 S.Ct. 1637, 36 L.Ed.2d 366. To the extent United States v. Mandujano, 496 F.2d 1050 (5th Cir. 1974), and United States v. Rangel, 496 F.2d 1059 (5th Cir. 1974), are contra, we respectfully disagree.

II

Defendant offered five exhibits at the opening of his case-in-chief to show that his perjury before the grand jury had been committed under duress. These exhibits consisted of legal matters. Defendant first proffered Rule 51 of the Chicago Police Department, then three portions of the Government’s answer to defendant’s motion to quash, and finally the Supreme Court’s opinion in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, holding that a State cannot use the threat of discharge to secure incriminating evidence against an employee. We have already held that compulsion of this nature does not justify a witness in testifying falsely, and the argument fares no better under the rubric of duress.

In any event, this Circuit follows the common law rule that duress is a defense only if the defendant reasonably feared immediate death or serious bodily injury which could be avoided only by committing the criminal act charged. United States v. Stevison, 471 F.2d 143, 147 (7th Cir. 1972), following Shannon v. United States, 76 F.2d 490, 493 (10th Cir. 1935) (collecting cases). Since defendant offered no evidence to support such a finding, the exhibits were properly excluded. We therefore disagree with the district court in United States v. Lazaros, affirmed on other grounds, 480 F.2d 174 (6th Cir. 1973), and with United States v. Willoz, 449 F. 2d 1321, 1325 (5th Cir. 1971). Defendant relies heavily on United States v. Knox, 396 U.S. 77, 83, 90 S.Ct. 363, 24 L.Ed.2d 275, but the Court there explicitly refused to decide the duress issue. Attempts to evade the consequences of one legal proceeding, even if perceived as unjust, do not justify further crimes. United States v. Birch, 470 F.2d 808, 812-813 (4th Cir. 1972).

Ill

Defendant next argues that four of the questions and answers from his' grand jury testimony were outside the indictment and an impermissible amendment thereto. The indictment alleged that defendant knowingly declared-“in substance” before the grand jury that while in performance of his duties as a Chicago police officer, he had never received any money from any person (emphasis added). The four questions pertained to defendant’s receipt of money from other persons, including police officers, while he was assigned to the 18th District, and negative answers were given. These questions and answers were clearly within the “in substance” allegation of the indictment and did not constitute an impermissible amendment. Cf. United States v. Rook, 424 F.2d 403, 405 (7th Cir. 1970), certiorari denied, 398 U.S. 966, 90 S.Ct. 2180, 26 L.Ed.2d 550.

IY

Defendant urges that the district court erroneously allowed hotel-keeper Brody to give testimony concerning a $75 protection payment to the defendant. This testimony showed that the statement charged in paragraph 4 of the indictment was untrue, so that it did not constitute a fatal variance. The “any person” charge in paragraph 4 was not limited by paragraph 5, which charged that defendant’s statements were false because he had taken money from Cello and Dawson. See United States v. Marchisio, 344 F.2d 653, 662 (2d Cir. 1965).

V

■Defendant claims the district judge should not have ref used, to give his proposed instructions 14 and 15.

In this connection, defendant first asserts that his negative answer to the question whether he received any money while in the 18th District from any bar owner, tavern owners or businessmen who ran an establishment that sold alcoholic beverages was literally true. We disagree. During the division of payoffs, Cello explained to Dawson and defendant which taverns had contributed payoffs to Cello. The “package” was then divided among these three and thirteen other policemen. Since Cello had testified that the payoffs he contributed to the pot came from tavern owners, the Government proved that defendant’s answer was false.

Defendant next asserts that his answer “No, sir, not for my duties” to the question whether he received any money from any persons while on official duty as a Chicago policeman was also literally true. But his initial response “No, sir” was directly responsive and false, so that the non-responsive attempted hedge which followed was not effective. Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568, is of no avail because Bronston replied only to a question which was not asked. Every portion of Bronston’s answer was both non-responsive and. literally true, whereas the only responsive portion of this defendant’s answer was false. Of course a witness may give an answer and then qualify it, but the qualification must also be responsive or it is irrelevant.

Since the evidence does not support the theory of the case embodied in defendant’s instructions 14 and 15, the denial thereof by the trial judge was proper. United States v. Kahn, 472 F. 2d 272, 285 (2d Cir. 1973), certiorari denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958; United States v. DiGiovanni, 397 F.2d 409, 413 (7th Cir. 1968), certiorari denied, 393 U.S. 924, 89 S.Ct. 256, 21 L.Ed.2d 260.

VI

Our perusal of the indictment satisfies us that it adequately informed defendant of the nature of the charge and of the materiality of the false statements. The indictment, together with the answers to the defendant’s motion for a bill of particulars, contained sufficient specificity. United States v. Rook, 424 F.2d 403, 405 (7th Cir. 1970), certiorari denied, 398 U.S. 966, 90 S.Ct. 2180, 26 L.Ed.2d 550.

The judgment of conviction is affirmed.

      . Paragraph 4 of the indictment charged :
      “At the time and place aforesaid, defendant Charles G. Nickels, while under oath, knowingly did declare in substance before said Grand Jury with respect to the aforesaid material matter that while in the performance of his duties as a Chicago police officer, he had never received any money from any person.’’ (Emphasis supplied.)

      . Defendant’s instruction 14 stated:
      “The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry. You are instructed that if an answer is subject to an interpretation that it is literally truthful, it is not perjury, even if the answer is evasive, incomplete, misleading, or unresponsive.”
      Defendant’s instruction 15 would have charged:
      “You are instructed that if an answer is literally true it is not perjury.”


author: PER CURIAM. ROBB, Circuit Judge:

text:
    RURAL HOUSING ALLIANCE v. UNITED STATES DEPARTMENT OF AGRICULTURE et al., Appellants.
    No. 73-1771.
    United States Court of Appeals, District of Columbia Circuit.
    Sept. 24, 1974.
    Before BAZELON, Chief Judge, and ROBB and WILKEY, Circuit Judges.
   ORDER

PER CURIAM.

On consideration of appellee’s petition for rehearing, it is

Ordered by the Court that the aforesaid petition for rehearing is denied.

BAZELON, Chief Judge, concurring in the denial of appellee’s motion for rehearing :

As initially issued, the court’s opinion in this case contained the following paragraph:

We refer RHA’s suggestions of counsel’s participation in in camera inspection to the District Judge on remand. Such participation by counsel may be allowed by the District Judge in his discretion, if he finds such participation necessary to his comprehension of the arguments and thus to a fair and correct resolution of this case.

On the Government’s motion, the court ordered deletion of this paragraph over my dissent. Two reasons have been given for the deletion: (1) that the paragraph was incorrect as a matter of law; (2) that it was unnecessary. I join in the denial of appellee’s present motion for rehearing solely on the second ground.

The court today agrees that the deleted passage was unnecessary to its decision. Accordingly, the court’s action does not decide the question which the passage addressed.

ROBB, Circuit Judge:

I voted to delete the paragraph referred to by Judge Bazelon on two grounds: (1) the paragraph was an incorrect statement of the law, and (2) it was unnecessary to the decision.