author: McENTEE, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Kevin Patrick FORD, Defendant, Appellant.
    No. 72-1376.
    United States Court of Appeals, First Circuit.
    Argued March 6, 1973.
    Decided May 14, 1973.

      Lawrence E. Katz, Cambridge, Mass., by appointment of the Court, with whom Haroz, Katz, Rockwell & Sager, Cambridge, Mass., was on brief, for appellant.
    Robert B. Collings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges.
   McENTEE, Circuit Judge.

This is an appeal from a conviction under 50 U.S.C. App. § 462 for refusing to submit to induction into the Armed Forces. Appellant contends that the validity of his induction order was vitiated by defective Selective Service procedures in processing his request for conscientious objector classification (I-O). For the reasons stated below, we affirm.

Appellant, Kevin Patrick Ford, first registered with Local Board No. 67 in Saugus, Massachusetts on August 7, 1967. After having had a series of classifications which we need not recount here, he was placed in Class I-A on September 8, 1970. On September 30, appellant submitted a written request for SSS Form 150 (Special Form for Conscientious Objector). This form was issued to him on the same date and was returned by him to his local board on October 29, 1970. In completing Form 150, appellant declined to sign either Statement A or B under Series I of the questionnaire, entitled “Claim for Exemption.” These statements provide the registrant with an opportunity to claim exemption from combatant service only, or from both combatant and non-combatant service, on the basis of a religiously grounded opposition to “war in any form.” Instead, appellant stated that “[a]s a Selective Conscientious Objector, I feel that neither of the two statements apply to me.” In elaborating the beliefs on which he based his claim to exemption, appellant reiterated that he was a selective conscientious objector and stated that his religious convictions prevented him from participating in “a war I believe to be unjust.” Appellant’s explanation of his beliefs also included the following statement:

“From my own perspective of the theory of proportionality, I firmly believe that the loss of human life, the human suffering, the atrocities committed by both sides, and the total destruction of much of the Vietnamese countryside, outweigh whatever vague good may or may not come from our involvement in Southeast Asia.
“With these as my moral and religious beliefs, I can in no way justify to God, or to myself, my participation, in any form, in the war effort in Southeast Asia.”

In addition to his Form 150, appellant submitted various letters of recommendation to the local board in support of his claim. Virtually all of these letters made some reference to the selective nature of his conscientious objection, i. e., his opposition to the war in Vietnam.

On November 17, 1970, appellant appeared before his local board for a courtesy interview. Without his knowledge, a summary of this meeting was prepared by the local board’s Executive Secretary and was placed in his file. He was never provided with a copy of this summary, which read as follows :

“Registrant was questioned as to his views and stated his stand that he was a Selective Conscientious Objector. He claimed that as a Catholic he didn’t believe that the war in Vietnam was just. The local board voted unanimously to classify the registrant in Class I-A.”

Following this interview, the local board reopened Ford’s classification and, without -stating any reasons for its action, reclassified him I-A. He thereupon notified the local board that he chose to exercise his right to a personal appearance. This second meeting with the board was held on January 26, 1971. A summary was again prepared by the Executive Secretary and was this time signed by Ford. A copy of the summary was placed in his file and read as follows:

“Registrant was questioned by the local board. Claimed as a Roman Catholic it is his right to feel as he does. Claimed that war is Evil and takes away the dignity of Human Beings. Would rather go to jail than to war. Decided to become a Conscientious Objector during the past year. Objects to participation in the Vietnam War — a particular war .... Board voted unaninimously [sic] to classify registrant in Class I-A.”

In reaffirming appellant’s I-A classification, the local board once again did not state any reasons for its denial of his conscientious objector claim. After receiving notification of the local board’s action, Ford took an administrative appeal. His file was accordingly forwarded to the appeal board on February 25, 1971.

Prior to the appeal board’s consideration of appellant’s claim, the clerk of the board prepared a summary of his case consisting solely of the words “selective C.O.” Neither this summary nor any part of his file was made available to the members of the board before their meeting of March 26, 1971. At that meeting, the appeal board considered his claim and voted unanimously to classify him I-A. No reasons were given for its action. Appellant subsequently failed to report for induction on May 6, 1971, and his indictment, trial and conviction followed.

Ford’s primary contentions on appeal relate to the failure of both draft boards to state their reasons for denying him conscientious objector status. In United States v. Edwards, 450 F.2d 49 (1st Cir. 1971), we held that where a prima facie case for conscientious objector classification has been stated, the local board must inform the registrant of its reason for denying his claim. Appellant first argues that his presentations to the local board made out such a prima facie claim, and that a statement of reasons was therefore required under Edwards. He further contends, however, that even if a prima facie claim was not made out, the local board’s de facto reopening of his classification was sufficient to bring the reasons requirement into play. Finally, he urges us to expand our holding in Edwards beyond the realm of prima facie claims to require a statement of reasons whenever a request for conscientious objector classification is denied by a local board.

We find considerable force in appellant’s third argument, which is supported both by logic and some authority. See United States v. Stephens, 445 F.2d 192, 199-200 (3d Cir. 1971) (Aldisert, J., concurring); United States v. Auger, 337 F.Supp. 342 (N.D.Cal.1972); United States v. Reese, 331 F.Supp. 1088 (N.D.Ga.1971); cf. SEC v. Chenery Corp., 332 U.S. 194, 196-197, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). The leading Supreme Court case concerning the reasons requirement, Clay v. United States, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971), may also be read as providing support for appellant’s viewpoint. But see Fein v. Selective Service System, 405 U.S. 365, 380, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972). Nevertheless, a number of considerations prevent us from accepting appellant’s invitation to depart from our holding in Edwards. First, our opinion in that case distinguished our earlier decision in United States v. Curry, 410 F.2d 1297 (1st Cir. 1969), precisely on the ground that, in Curry, a prima facie case for exemption had not been made out. Thus, the clear import of Edwards was that a statement of reasons would not be required in the absence of a prima facie claim. This was a proposition on which draft boards within this circuit were entitled to rely, and we would have difficulty in now ruling that they were incorrect in doing so. Nevertheless, we might undertake such a holding if it were necessary to effectuate a rule of law more in accordance with proper administrative procedure than the one we originally laid down in Edwards. In December of 1971, however, the Selective Service ■ System amended its own regulations to require that a statement of reasons be recorded in a registrant’s file whenever he is placed in a class other than the one he has requested. 32 C.F.R. 1623.4(c) (1972). In view of this amendment, the only effect of our departing from Edwards would be to vitiate an uncertain number of Selective Service prosecutions merely because of a local board’s reliance on a decision of this court. Moreover, the federal courts of appeals have been virtually unanimous in limiting the applicability of the reasons requirement to cases where a prima facie claim has been made out. See, e. g., Cale v. Volatile, 465 F.2d 1110 (3d Cir. 1972); United States v. Heigl, 455 F.2d 1256 (7th Cir.), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 127 (1972) ; United States v. Wood, 454 F.2d 765 (4th Cir. 1972); United States v. Stetter, 445 F.2d 472 (5th Cir. 1971); United States v. Haughton, 413 F.2d 736 (9th Cir. 1969); but see United States v. Lenhard, 437 F.2d 936 (2d Cir. 1970) (no mention made of prima facie prerequisite). In view of these authorities, and the considerations discussed above, we hold that appellant’s draft boards were not obligated to state their reasons for denying his conscientious objector claim unless his entitlement to such classification was prima facie established.

Turning then to the prima facie validity of appellant’s application for conscientious objector status, we find that his claim clearly failed to meet the statutory criteria for exemption. See 50 U.S.C. App. § 456(j). In order to meet these standards, a registrant must be opposed to war in any form, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971), on the basis of “religious training and belief” as that term has been construed in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). We think that the appellant has indisputably failed to meet the first of these requirements; rather, by his own characterization, he is a “selective conscientious objector.” Nowhere in any of the documents submitted to the local board in support of his claim was there a clear statement of his opposition to war in any form. On the contrary, appellant’s Form 150 unambiguously limited the scope of his conscientious objection to the war in Vietnam and other wars which he thought to be unjust, and the supporting letters written in his behalf were totally consistent with this limitation. While his counsel has attempted to portray several of his isolated statements in his Form 150 as indicating a possibly universal opposition to war, we think that the form, read as a whole, presents an absolutely clear instance of selective conscientious objection. Furthermore, we do not believe that the statements contained in the summary of Ford’s personal appearance before his local board suffice to cure the deficiencies of his Form 150. That summary quotes appellant to the effect that “war is [e] vil” and that he “[w]ould rather go to jail than to war.” The summary also contains the notation, however, that he “[ojbjeets to participation in the Vietnam War — a particular war.” In view of the total lack of ambiguity in his Form 150, we will not contrive a pri-ma facie claim from these fragmentary comments.

Appellant contends, however, that even if a prima facie claim was not made out, a statement of reasons was still required in light of the local board’s reopening of his classification. He bases this argument upon the provisions of 32 C.F.R. 1625.4 and the Solicitor General’s confession of error in Joseph v. United States, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed.2d 473 (summary disposition) (1972). The above regulation provides in relevant part:

“When a registrant files with the local board a written request to reopen and consider anew the registrant’s classification and . . . the local board is of the opinion that such facts, if true, would not justify a change in such registrant’s classification, it shall not reopen the registrant’s classification.” (Emphasis added.)

Appellant thus argues that, since the local board was expressly prohibited from taking such action in the absence of a prima facie case for exemption, the presumption of administrative regularity now requires us to treat his claim as prima facie valid for purposes of applying the reasons requirement. This was essentially the position taken by the Solicitor in Joseph. In that ease, the Solicitor conceded that a statement of reasons was necessary under similar circumstances, although he maintained that the petitioner had not stated a prima fa-cie claim and that such a claim would ordinarily be the prerequisite to applying the reasons requirement. The government now seeks to distinguish Joseph, however, on a ground suggested by the Solicitor’s memorandum in that case. See Joseph v. United States, supra, Memorandum for the United States at 20-21. The government’s argument rests, rather anomalously, on its concession that the record reveals no basis in fact for questioning the sincerity of Ford’s beliefs. This being the case, the government reasons, we can know with certainty that the local board ultimately rejected appellant’s claim because of his failure to meet the statutory criteria for exemption. Since the local board could not have believed that a prima facie claim existed in reopening his classification, the syllogism continues, the presumption of administrative regularity is rebutted and Joseph thereby distinguished.

In all candor, we are not favorably impressed by this reasoning which, in our view, borders on the metaphysical. Given the fact that a local board has improperly reopened a classification to consider a non-prima facie claim, we can attach no importance to whether this action was taken in clear disregard of the regulations or because the local board erroneously believed that a prima facie case had been stated. Nevertheless, we cannot adopt appellant’s position and reverse his conviction on this ground. Notwithstanding, the Solicitor’s memorandum in Joseph, we are unable to perceive any logical connection between the reasons requirement as laid down in Edwards and the technical procedures followed by a local board in denying a conscientious objector claim. When we adopted the reasons requirement in Edwards, we emphasized that a registrant must be aware of the basis for the local board’s rejection of his claim if he is fo meaningfully exercise his right to an administrative appeal. We distinguished our earlier decision in Curry, however, on the ground that the non-prima facie registrant would not be prejudiced by an absence of reasons, since he would be unable, in any event, to submit additional and consistent information to the appeal board in support of his claim. If prejudice is indeed absent in this latter •situation, it is not supplied by the local board’s erroneous reopening of the registrant’s classification. Since the Supreme Court did not write an opinion in Joseph, but merely remanded for reconsideration in light of the Solicitor’s position, we are not bound by his reasoning in that case. Accordingly, we find appellant’s arguments on this point to be without merit.

Appellant also argues for reversal on the basis of the allegedly inadequate procedures followed by the appeal board in evaluating his request for conscientious objector status. First, he contends that the appeal board in effect failed to give de novo consideration to his classification by improperly relying on a summary of his case prepared by the board’s clerk and by devoting an average of only sixty-four seconds to each case it considered at its March 26 meeting; second, he argues that his appeal was prejudiced by the presence in his file of an unauthorized summary of his courtesy appearance before the local board. We shall consider these contentions in order.

There is no question but that the insertion into the file of the notation “selective C.O.” by the appeal board clerk violated 32 C.F.R. 1626.24(b), confining appeal board consideration to the local board record. The circumstances here presented, however, make this the rare case where we can say that the notation could not have been prejudicial to Ford. As discussed above, he characterized himself as a selective conscientious objector in completing Series I of his Form 150. Thus, the clerk’s summary did no more than accurately describe the basis on which appellant was seeking exemption. He argues, however, that the evidence indicates an undue reliance by the appeal board on this summary, and that the board failed to make an independent and complete evaluation of his file. While the clerk did testify that the members of the appeal board might not read a registrant’s entire file in a case characterized by her as “selective C.O.,” she also indicated that the registrant’s “statement” would invariably be considered. We understand the latter part of this testimony to be a reference to Series I of the Form 150. In the instant case, this was all that the board needed to consider. Having once determined, on the basis of appellant’s own unambiguous statement, that he did not meet the statutory criteria for exemption, the appeal board was not required to consider information relating to the sincerity and religious na.ture of appellant’s beliefs. This is not to say that we might not find prejudice from the appeal board’s failure to consider the entire file if anything contained therein tended to contradict the prima facie invalidity of the registrant’s claim. In the present case, however, all of the evidence presented by the appellant pointed inexorably to the fact that he was a selective conscientious objector, and thus not entitled to 1-0 classification.

We find a similar lack of merit in appellant’s argument that the appeal board devoted an insufficient amount of time to the consideration of his claim. Assuming arguendo that an average time statistic would provide a sufficient basis for reversing on this ground, but see United States v. Neckels, 451 F.2d 709 (9th Cir. 1971), we think that the obvious facial invalidity of appellant’s claim precluded prejudice in this instance. See United States v. Young, 824 F.Supp. 69, 71-73 (D.Minn.1970).

As to the matter of the unauthorized summary of appellant’s courtesy interview with the local board, we recognize that the presence of this summary violated 32 C.F.R. 1626.13(a) and 1624.2(b), which together require that any written summary of a personal appearance be prepared by the registrant. Nevertheless, we observe again that this statement contained no information beyond that presented by Ford in his Form 150. Moreover, the summary- of his subsequent personal appearance before the board, which was signed by appellant, repeated the possibly prejudicial information contained in the earlier summary — i. e., that his conscientious objection was aimed at a particular war. The cases cited by appellant are relevant, but nevertheless distinguishable. In United States v. Droge, 464 F.2d 439 (9th Cir. 1972), there was no question that the registrant’s claim to conscientious objector status was prima facie valid on its face. After an interview with the registrant, however, the local board concluded that his claim was based essentially on opposition to the war in Vietnam rather than on conscientious objection to war in any form, and accordingly classified him I-A. Without the registrant’s knowledge, an unauthorized summary of this interview tending to support the board’s conclusions was placed in his file. The registrant’s administrative appeal was subsequently denied without a statement of reasons. Characterizing the local board’s summary as “highly prejudicial” to the registrant, the court of appeals reversed his conviction. In the instant case, however, we find no prejudice because the summary of appellant’s courtesy interview was merely repetitive of the statements contained in his Form 150. United States v. Fisher, 442 F.2d 109 (7th Cir. 1971), is similarly distinguishable, since in Fisher the unauthorized summary was also highly prejudicial to the registrant and touched upon matters not discussed in his Form 150.

Little need be said with regard to appellant’s final contention that the evidence was insufficient to establish an identity of persons between himself and the registrant whose Selective Service records were introduced at trial. In addition to the existence of an identity of names, the Selective Service documents introduced into evidence contained a description of the age, race, height, hair color, eye color, weight and build of the registrant named therein. Under these circumstances, the trial court’s finding that the registrant Ford and the defendant Ford were one and the same person cannot be said to be without adequate support in the record.

Affirmed.

      . Appellant argues, citing Welsh v. United States, supra, 398 U.S. at 341, 90 S.Ct. 1792, that his own characterization of his beliefs should not be determinative. Welsh, however, involved the interpretation of the “religious training and belief” requirement, a term notable for its all-embracing elasticity. See United States v. Seeger, supra; United States v. Welsh, supra. By contrast, we think that the meaning of the words “opposed to war in any form” should be perfectly clear to the average registrant. We therefore see no reason not to take appellant’s statements at face value.

      . Appellant argues that the district court’s rejection of his motion for a judgment of acquittal on this ground was not based upon a factual finding that he was indeed the same person as the one whose records were introduced at trial, but rather upon an erroneous application of the doctrine of “idem sonans." The short answer to this contention is that the trial court’s reason for denying this motion does not appear in the record. Moreover, while a description of the defendant Ford also does not appear in the record, he was presumably present at the trial, and the district court had ample opportunity to compare his features with those of the registrant.


source: Caselaw Access Project

author: McWILLIAMS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard Floyd McCOY, Jr., Defendant-Appellant.
    No. 72-1646.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Feb. 21, 1973.
    Decided May 7, 1973.

      James M. Dunn, Asst. U. S. Atty. (C. Nelson Day, U. S. Atty., on the brief), for plaintiff-appellee.
    David K. Winder, Salt Lake City, Utah, for defendant-appellant.
    Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
   McWILLIAMS, Circuit Judge.

Richard Floyd McCoy, Jr., was convicted by a jury of aircraft piracy under 49 U.S.C. § 1472(i)(l) and he now appeals his sentence of forty-five years. The only point raised on appeal concerns the validity of a search warrant which purported to authorize a search of McCoy’s home. In view of the narrow issue presented to us for review, background facts need not be developed in detail.

A United Airlines plane en route from Denver, Colorado, to Los Angeles, California, was taken over by a so-called sky-jacker who by virtue of threats caused the pilot to change his course and land in San Francisco, California. There, the passengers were permitted to deplane and, pursuant to further direction of the sky-jacker, $500,000 in currency and several parachutes were brought aboard the plane. Still acting under threats from the sky-jacker, the pilot then flew the plane back to Utah, with the sky-jacker apparently bailing out near Provo, Utah, taking the $500,000 with him.

Two days after the sky-jacking, McCoy was arrested at his home in Provo, Utah. McCoy was immediately taken before a magistrate who advised him of his various constitutional rights. At the same time and place an FBI agent named William J. Geiermann presented his affidavit to the magistrate and asked for the issuance of a warrant to search McCoy’s residence. The magistrate determined that probable cause was shown by Geiermann’s affidavit, and issued a search warrant. However, the warrant signed by the magistrate, through someone’s error or oversight, mistakenly identified the affiant as one Lote Kinney, Jr., also an FBI agent, instead of Geiermann. As indicated, Geiermann was the only one who had presented an affidavit to the magistrate in support of the request for a search warrant. The warrant itself was directed to Kinney, and he and others operating under his direction conducted the ensuing search of McCoy’s residence. The search disclosed, among other things, $499,970 in currency, parachute and harness, grenade, gun and ammunition, and the like.

Four days prior to trial, counsel for McCoy filed a motion to suppress the various articles taken in the search of McCoy’s home, alleging that the affidavit did not show “probable cause” for the issuance of a search warrant and that the search warrant itself was “insufficient on its face.”

The motion to suppress came on for hearing at the commencement of the trial proper. At the conclusion of the relatively short hearing, the trial court stated that it would defer its ruling till the matter came up during the course of the trial. In the course of the trial, then, the circumstances surrounding the issuance of the search warrant were fully explored, initially out of the presence of the jury, and the trial court then denied the motion to suppress. Accordingly, the articles seized in McCoy’s home by the FBI agents were received into evidence. As indicated, the only matter urged in this court concerns the propriety of the trial court’s denial of McCoy’s motion to suppress.

I.

As indicated, the affidavit upon which the issuance of the search warrant was based was that of agent Geiermann. McCoy’s complaint about the sufficiency of the affidavit relates to the fact that the statements contained therein were all based on information acquired by Geiermann from others. In other words, Geiermann himself had no so-called firsthand information, and his statements were all based on what he had been told by other FBI agents who in turn had themselves acquired their information from others. The affidavit, then, according to counsel, is one based on double hearsay, if not indeed triple hearsay, and for that reason alone was insufficient to permit a finding by the magistrate that probable cause did exist for the issuance of the search warrant. Let us examine the affidavit a bit more closely.

In his affidavit, Geiermann stated that he had been advised by a fellow FBI agent from San Francisco that a passenger aboard the hijacked plane had been interviewed and that this passenger had viewed a number of photographs presented to him by the FBI and had identified a picture of McCoy as being a picture of the sky-jacker.

Geiermann in his affidavit also stated that he had been advised by a fellow FBI agent who had interviewed a stewardess aboard the sky-jacked plane that he had received from the stewardess a hand printed note which the sky-jacker had sent the pilot during the flight, and that he had been since advised by a document examiner at the FBI laboratory in Washington, D. C., thát the writing on the hand printed note had been identified as being the handwriting of McCoy as contained in his official Army personnel records.

Also, in his affidavit, Geiermann stated that he had been advised by still another fellow FBI agent who had talked with a Utah state highway patrolman who served in the Air National Guard with McCoy and that the patrolman had informed him that McCoy was a sky-diver and that the two of them had discussion regarding á plane sky-jacking and that he had ascertained that on the night of the sky-jacking McCoy was not at home.

Without going into more detail, the foregoing is indicative of the type of information set forth in Geier-mann’s affidavit, which consisted of some six typewritten pages. It is correct to say that all of Geiermann’s statements were based on information relayed to him by fellow FBI agents who had in turn acquired their information from others interviewed in the course of their particular investigative endeavors. In this regard see United States v. Ven-tresca, 380 U.S. 102 (1965), where it was held at page 111, 85 S.Ct. 741, 13 L.Ed.2d 684 that observations of a fellow Government officer engaged in a common investigation may form the basis for a warrant applied for by one of their number. So, then, it is quite true that the affidavit contained some double hearsay, and perhaps even a bit of triple hearsay. However, such fact in and of itself does not render the affidavit insufficient. In determining the sufficiency of an affidavit, the test is whether the affidavit sets forth sufficient underlying facts and circumstances to the end that the magistrate can make a detached judgment as to the reliability of the various sources of the affiant’s information. The affidavit in the instant case easily measures up to that test.

That an affidavit for a search warrant may be based on hearsay is well established. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Indeed, such is usually the case. As concerns so-called double hearsay, the Eighth Circuit has held that when a magistrate receives an affidavit which concerns hearsay on hearsay, he need not summarily reject this double hearsay information, but is rather called on to evaluate such information as well as all other information in the affidavit in order to determine whether the informant gathered his information in a reliable way and from reliable sources. United States v. Kleve, 465 F.2d 187 (8th Cir. 1972), and United States v. Smith, 462 F.2d 456 (8th Cir. 1972). We subscribe to the reasoning of those cases.

In evaluating the affidavit of Geier-mann, it should be noted that we are not here concerned with professional informers, identified or unidentified. Rather, we are concerned with information acquired by FBI agents from named persons who were either eye witness to the crime or had information acquired from McCoy himself. This we deem to be of considerable significance in connection with the magistrate’s determination as to the reliability of the affiant’s sources of information. In this connection it was held in United States v. Bell, 457 F.2d 1231 (5th Cir. 1972), that a supporting affidavit in an application for a search warrant must attest to the credibility of an informer and his information, but that such requirement did not extend to information acquired from an eye witness to a crime.

Without belaboring what we deem to be quite obvious, the affidavit of Geiermann in the instant case was amply sufficient to permit the magistrate to exercise his independent judgment as to the reliability of the various sources of information. Indeed, on the basis of the affidavit before him, the magistrate could only have concluded that probable cause did exist for the issuance of a search warrant.

II.

Through the error or oversight on the part of some person or .persons, the search warrant, as issued, named therein the affiant as Lote Kinney, Jr., instead of William J. Geiermann. Counsel asserts that this error renders invalid the warrant and the search based thereon. We disagree, as under the facts of this case we see no resulting prejudice to McCoy.

The Fourth Amendment requires that no search warrant shall issue except on probable cause, supported by oath or affirmation, but does not require that the name of the affiant be set forth in the warrant itself. So, we are not here concerned with any constitutional mandate. However, Fed.R.Crim.P. 41(c), before the recent amendment thereof, did direct that the warrant shall state the “names of the persons whose affidavits have been taken in support thereof.” That particular requirement has since been deleted from the rule, the official committee notes to the amendment stating that the requirement that the warrant itself should state the names of the affiants was being eliminated as “unnecessary paper work.” However, such requirement was in effect when the search warrant issued in the instant ease. Fed.R.Crim.P. 52 directs a trial court to disregard any error, defect, irregularity or variance which does affect a defendant’s substantial rights. And under 28 U.S.C. § 2111 an appellate court is directed to “give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.” For reasons set forth below we do not believe the misidentification in the warrant of the affiant in anywise prejudiced McCoy.

The reason for the earlier requirement in the rule that the warrant name the affiant is said to be that someone must take responsibility for the facts which purportedly give rise to the probable cause for the issuance of the search warrant, and that the defendant should be apprised of the name of that person. Additionally, it has also been stated that another reason for naming the affiant in the warrant is to enable the aggrieved person to probe and challenge the legality of the warrant by challenging, in court, the affiant and his statements. United States ex rel. Pugh v. Pate, 401 F.2d 6 (7th Cir. 1968), cert. denied, 394 U.S. 999, 89 S.Ct. 1590, 22 L.Ed.2d 777 (1969), and King v. United States, 282 F.2d 398 (4th Cir. 1960). However, as we see it, McCoy was not prejudiced in either of those areas by the fact that Kinney, rather than Geiermann, was named in the warrant as the affiant.

Although we do not attribute great significance to it, the fact is that McCoy was present in the magistrate’s office at the very moment Geiermann presented his affidavit to the magistrate. This no doubt was just a coincidence. However, we are advised that a copy of the warrant, with Geiermann’s affidavit attached thereto, was presented to McCoy’s wife when the search was made of McCoy’s home. Thereafter, copies of the affidavit and the search warrant were on file in the magistrate’s office until the return thereon was made, at which time all papers were filed in the office of the clerk of the District Court.

Counsel for McCoy at an early time apparently had access to the affidavit, the warrant and return. At least we know that in explaining why they had delayed filing their motion to suppress till only a few days before trial, counsel candidly stated that it was not till then that they had themselves noted that the warrant named Kinney, rather than Geiermann, as the affiant.

Finally, out of the presence of the jury, there was an indepth inquiry of both Geiermann and Kinney, as well as others concerning the statements in the affidavit, and all the facts and circumstances concerning the issuance of the warrant were fully developed. It is this combination of facts and circumstances that leads us to conclude that McCoy was in fact nowise prejudiced by the misnomer in the warrant.

McCoy relies in this regard on Pugh v. Pate, supra, and King v. United States, supra. We do not regard those cases as having great applicability to the instant case. Each concerned an affiant who used a fictitious name and thereafter apparently disappeared. At least, in King, for example, which incidentally was cited and relied on heavily in Pugh, at the hearing on the defendant’s motion to suppress the affiant was among the absent and could not be subjected to examination. It was in this setting that the court in King held that the trial court erred in denying the motion to dismiss. Such is a far cry from the instant case. Nor are we persuaded by United States v. Carignan, 286 F.Supp. 284 (D.Mass.1967), even though the facts there are more akin to the facts of the present case. We are more impressed with the reasoning in United States v. Averell, 296 F.Supp. 1004 (E.D.N.Y.1969), which distinguished Carignan and held that the failure to designate the affiant in the search warrant was not fatal where no prejudice was shown.

In short, it would seem clear that under the facts and circumstances disclosed by the record before us, the error here complained of is indeed one that did not affect any substantial right and should accordingly be disregarded.

Judgment affirmed.


author: DAVIS, Judge:

text:
    Christa Ruthe FAY, Plaintiff-Appellant, v. Thomas I. FITZGERALD, as Public Administrator of the County of New York, as Administrator of the Goods, Chattels and Credits of John Patrick Fay, also known as John P. Fay, Deceased, Defendant-Appellee.
    No. 452, Docket 72-1817.
    United States Court of Appeals, Second Circuit.
    Submitted Feb. 13, 1973.
    Decided May 8, 1973.

      William G. Mulligan, New York City (Mulligan & Jacobson, New York City, of counsel), for plaintiff-appellant.
    Joseph T. Arenson, New York City (Waldemar J. Dittmar, Philip Beker-man, and Elias Karban, New York City, of counsel), for defendant-appellee.
    Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS, Judge.

       Of the United States Court of Claims, sitting by designation.

   DAVIS, Judge:

John Patrick Fay, an elderly well-to-do resident of Manhattan, died abroad in 1972; he left no will and appellee, the Public Administrator of New York County, was designated by the Surrogate’s Court as administrator of his estate. Appellant, Christa Ruthe Fay, a non-resident alien, made claim on appel-lee as the decedent’s common-law widow, asserting that they were so married in Florida in 1960 when she was 23 and he 70. The other claimants to the estate were a resident of England who said she was the intestate’s half-sister and three French residents claiming to be nieces. Invoking diversity jurisdiction, appellant began this action in 1972 against the Public Administrator for a declaratory judgment that she was Fay’s wife, is his widow, and is entitled to the full estate (after expenses, debts and taxes). On the appellee’s motion, the District Court dismissed the complaint in the exercise of discretion “not to entertain this claim for reasons of judicial economy and efficiency and because persons interested in these issues, but who cannot be made parties to this action, have been parties in the State Court proceeding where the same issues will be decided.”

The Supreme Court has cautioned that “the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power” (Public Service Commission v. Wycoff Co., 344 U.S. 237, 243, 73 S.Ct. 236, 240, 97 L.Ed. 291 (1952)), and, more particularly, that “a federal district court should, in the exercise of discretion, decline to exercise [diversity] jurisdiction over a [declaratory judgment] action raising issues of state law when those same issues are being presented contemporaneously in state courts” (Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 126, 88 S.Ct. 733, 746, 19 L.Ed.2d 936 (1968), reaffirming on this point Brillhart v. Excess Ins. Co., 316 U.S. 491, 494-495, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942)).

At the time the court below acted, the only proceeding in the Surrogate’s Court was appellee’s application to sell the decedent’s cooperative apartment in New York. Appellant opposed that request on the double ground that she was the decedent’s widow and also that, during his lifetime, he had given her the apartment. She asked that the application be denied “without prejudice to renewal after determination of the rights of this respondent [appellant] to said property as herein set forth.” No determination had been made on this application when the complaint was dismissed below.

The main thrust of the appeal is that this state court proceeding should not be, and could not properly have been, the basis for a discretionary denial of declaratory relief since the issue of appellant’s status as wife and widow was not necessarily involved in that proceeding —it was entirely possible th'at the application to sell the apartment could be wholly determined on appellant’s alternative claim that she was the donee of the property, without ever reaching her claim as widow. Cf. Beach v. Rome Trust Co., 269 F.2d 367, 373-374 (C.A. 2, 1959).

However, we do not have to resolve the close issue of whether, when it acted, the District Court had adequate reason to withhold its hand in favor of the Surrogate’s Court. The additional state proceedings since the dismissal below convince us that it would now be a serious mistake to allow this competing action to continue. Very shortly after the District Court’s decision, appellant specifically moved the Surrogate’s Court to determine her status, and that of the rival claimants, as distributees of the estate. That court entertained this request but denied her demand for a jury trial (Matter of Fay, 70 Misc.2d 51, 332 N.Y.S.2d 322 (1972)). This ruling was affirmed by the Appellate Division in an order of February 22, 1973. 41 A.D.2d 703, 340 N.Y.S.2d 861. The issue of appellant’s status as wife and widow is therefore about to be tried (if it has not already been) and determined in the Surrogate’s Court.

It is appropriate for us to take account of these post judgment happenings and to place our decision on the propriety as of the present time of entertaining this declaratory judgment action. With respect to discretion under the Declaratory Judgment Act, as distinguished from other discretionary rulings, this court has held that the appellate court should exercise its own judgment and may substitute its own judgment for that of the lower court. Broadview Chemical Corp. v. Loctite Corp., 417 F.2d 998, 1000 (C.A. 2), cert. denied, 397 U.S. 1064, 90 S.Ct. 1502, 25 L.Ed.2d 686 (1970). In addition, in another instance of review of the exercise of discretion by the district court we have stated that “[s]ince our decision has to be forward-looking, determining the cast of the proceedings from now on, we must take account of this new situation, just as we would if we were considering an injunction for the future.” Korn v. Franehard Corp., 456 F.2d 1206, 1208 (C.A. 2, 1972).

With matters as they now stand, it is indisputable that the controversy over appellant’s rights as a distributee “can better be settled in the proceeding pending in the state court.” Brillhart v. Excess Ins. Co., supra, 316 U.S. at 495, 62 S.Ct. at 1176. The questions are not federal; preparations to determine them have gone forward in the Surrogate’s Court; the trial is even now’ impending there, if it has not already been held; the state tribunal has jurisdiction of the rival claimants, non-resident aliens who have participated in those proceedings, while the federal court does not. In this situation it would obviously be “uneconomical as well as vexatious” for the federal court to proceed in this declaratory judgment suit raising precisely the same issue which will necessarily be decided by the Surrogate’s Court. Brillhart v. Excess Ins. Co., supra, 316 U.S. at 495, 62 S.Ct. 1173; Abbott Laboratories v. Gardner, 387 U.S. 136, 155, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); J. Moore, Federal Practice ff57.08[6].

Perhaps the district court could have stayed its proceedings to await the state determination, rather than dismiss outright (cf. Stansbury v. Koss, 10 F.Supp. 477, 479-481 (S.D.N. Y.1931)), but in the current circumstances there would be no point to such-an order. If it turns out unexpectedly that the plaintiff cannot get a reasonably prompt determination by the state courts of her status as widow, she can file again for a declaratory judgment. There would be no problem of limitations or of res judicata.

Affirmed.

      . We are told that the trial has been adjourned to April 30, 1973, and that depositions of appellant and six of her witnesses have been taken in the state. proceeding.

      . Appellant cites several decisions sustaining the jurisdiction of district courts to consider decedent’s estate problems which are not required by state law to be tried in probate courts, and will not interfere with that court’s control of the res. E. g., Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80 (1909) ; McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762 (1960) ; Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256 (1946) ; County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 192-193, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959) ; Lamberg v. Callahan, 455 F.2d 1213 (C.A.2, 1972). These cases did not involve the separate issue of the discretion of a district court, having jurisdiction over the parties and subject matter, to decline to entertain the particular declaratory judgment action. The declaratory judgment opinions on which appellant also leans all concerned situations in which there was no pending state court proceeding which would determine all the issues tendered in the federal suit. See Telechron v. Parissi, 197 F.2d 757, 762 (C.A.2, 1952) (all claims then on trial together, and state court could not deal with patent claims intimately related to non-patent claims) ; Beach v. Rome Trust Co., 269 F.2d 367, 370, 371, 373-374 (C.A.2, 1959) (state court proceeding not yet instituted on issues involved in declaratory federal suit, and no showing that subsequently begun state proceeding would decide issues raised in federal case).

      . There may possibly be a question whether a suit of this type in a district court against the Public Administrator, not raising any constitutional issue, is barred by the Eleventh Amendment. Cf. Knight v. State of New York, 443 F.2d 415 (C.A. 2, 1971). In all probability, the answer would be negative since the New York legislation treats the Public Administrator as an arm of the City of New York, and it is settled that a “suit agdinst a county, a municipality, or other lesser governmental unit is not regarded as a suit agains't a state within the meaning of the Eleventh Amendment.” H. M. Hart & H. Weeliler, The Federal Courts and the Federal System 690 (2d ed. P. Bator et al. 1973). The New York Surrogate Court’s Procedure Act, section 1110 (McKinney’s Consol.Laws, c. 59a, 1967), provides that the “city of New York shall be answerable for the faithful execution by the public administrator of all the duties of his office * * * ”, and also that any person aggrieved by an act of the Public Administrator “shall have each and every remedy against the city of New York as would be available against a fiduciary in like case and may initiate in the surrogate’s court having jurisdiction a proceeding for the enforcement of his claim or right and shall serve process thereon on the comptroller of the city. The public administrator then in office shall be a necessary party in such proceeding.” It is unclear whether this provision allows suit against the city (and the Public Administrator) in any appropriate forum, merely specifying a suit in surrogate’s court as one of “each and every remedy”, or whether the latter was intended as the exclusive method. In any event, since an agent of the city (not the state) is involved, even the second construction would probably not exclude an action in federal court. See Markham v. City of Newport News, 292 F.2d 711, 717 (C.A.4, 1961) ; Hart & Wechler, supra, 690. However, we need not definitely decide these questions; in view of our affirmance of the dismissal of the action, it is unnecessary to reach the Eleventh Amendment which, if it were applicable, would also lead to dismissal. Cf. Brooks v. Dewar, 313 U.S. 354, 359-360, 61 S.Ct. 979, 85 L.Ed. 1399 (1941).


author: WILLIAM P. GRAY, District Judge:

text:
    SOUTHWEST FOREST INDUSTRIES, INC., Appellant, v. POLE BUILDINGS, INC. and Hartford Accident & Indemnity Co., Appellees.
    No. 71-1816.
    United States Court of Appeals, Ninth Circuit.
    May 7, 1973.
    Rehearing Denied June 25, 1973.
    Calvin H. Udall (argued), Stephen S. Case, Fennemore, Craig, Yon Ammon & Udall, Phoenix, Ariz., for appellant.
    Warren E. Platt (argued), Snell & Wilmer, Phoenix-, Ariz., for appellees.
    Before HUFSTEDLER and WALLACE, Circuit Judges, and GRAY, District Judge.

       Honorable William P. Gray, United States District Judge for the Central District of California, sitting by designation.

   WILLIAM P. GRAY, District Judge:

This is an appeal from the granting of summary judgment in favor of Hartford Insurance Company, a defendant in the action below. The sole question before this court is whether the claimed damage falls within one or more of the standard form exclusion clauses of the liability insurance policy issued by Hartford. We agree with the trial court that it does, and accordingly affirm.

In 1966, the appellant, Southwest Forest Industries (Southwest), contracted with Pole Buildings, Inc. to construct an industrial building on property owned by Southwest at McNary, Arizona. Pole agreed to obtain an insurance policy “insuring against the risks of injuries to persons and property arising out of the performance of this contract.” Pursuant to such agreement, Pole purchased the subject insurance policy from Hartford.

In the fall of 1966, the building was completed and Southwest took possession. In December 1967, the roof collapsed due to a heavy snow load, and Pole repaired the damage. On December 26, 1968, the roof collapsed again after a heavy snowfall. Southwest brought suit against Pole and Hartford in the Arizona state court, alleging breach of warranty and negligent construction by Pole. It claimed as damages only the cost of reconstructing the building. The action was removed to the United States District Court on the basis of the parties’ diverse citizenship, and that court granted summary judgment in favor of Hartford on the ground that its insurance contract with Pole did not cover the latter’s liability to Southwest.

The policy of insurance provided, in part, that “[t]he company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of [bodily injury or property damage] to which this insurance applies . . .’’ and “all sums which the insured, by reason of contractual liability assumed by him under any written contract . . . shall become legally obligated to pay as damages because of [bodily injury or property damage] to which this insurance applies. . . . ” For purposes of the summary judgment motion, and in oral argument before this court, the parties assumed that the building collapse would be covered under the policy unless that risk was excluded by one or both of the following clauses:

“This insurance does not apply:
-X- -X- * -X- * *
(l) to property damage to the named insured’s products arising out of such products or any part of such products;
(m) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts of equipment furnished in connection therewith;”

With respect to exclusion (m), Hartford claims that this clause denies coverage for damage to the insured’s work product, whether completed or unfinished, where such damage results from a defect in the item constructed by the insured. In contrast, the appellant reads exclusion (m) to except from coverage damage to the building incurred during construction, but not damage to the building occurring after completion of the structure. The appellant achieves this result by interpreting the second use of the word “work” in the phrase “property damage to work performed . arising out of the work” to denote the activity of construction rather than the resulting structure. It contends that under its interpretation the clause is unambiguous and does not vitiate coverage for damage to its building; that under Hartford’s construction the clause is ambiguous when compared with other policy provisions; and that in the event of ambiguity, the questionable provision is to be construed in favor of the insured.

We cannot agree with the appellant’s reading of exclusion (m). When considered in context, the word “work” should be read as a noun, referring back to, and having the same meaning as, the phrase “work performed.” The section should thus operate to withdraw coverage for damage to the insured’s work product resulting from an inherent defect, even though construction is complete and the contractor has relinquished control. This interpretation is consistent with the construction accorded similar exclusion clauses in numerous other cases. See, e. g., Haugan v. Home Indemnity Co., 197 N.W.2d 18 (S.D.1972); Liberty Building Company v. Royal Indemnity Co., 177 Cal.App.2d 583, 2 Cal.Rptr. 329 (1960); Vobill Homes, Inc. v. Hartford Accident & Indemnity Co., 179 So.2d 496 (La.App.1966); Heyward v. American Casualty Co., 129 F.Supp. 4 (E.D.S.C.1955); Hartford Accident & Indemnity Co. v. Olson Bros., Inc., 187 Neb. 179,188 N.W.2d 699 (1971).

The appellant’s argument that the coverage provided by the policy under the “completed operations hazard” would be rendered nugatory if clause (m) is held to apply to completed projects is also unpersuasive. The additional coverage provided by the “completed operations hazard” includes:

“bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith.
******
Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.”

When considered with exclusion (m), the completed operations coverage would be limited only to the extent that damage to the insured’s completed work would not fall within the coverage of the policy. The risk of damage to persons or property other than that constructed by the insured would remain with the insurer.

The appellant contends further that its claim for damages based upon a breach of express and implied warranty falls within the “contractual liability” coverage part of Hartford’s policy and that an inconsistency would arise if exclusion (m) is interpreted to vitiate such coverage. This assertion must also be rejected, because the term “contractual liability” is defined in the policy to exclude claims based upon a warranty.2

If Southwest’s narrow reading of exclusion (m) were to be accepted, and if it were to be assumed further that no other exclusion is applicable, Hartford would be contractually obligated both to Pole and to its customers as a guarantor of the quality of Pole’s work in all respects. In light of the unambiguous language of exclusion (i), which expressly negates such broad coverage for damage to the insured’s “products,” we cannot infer that Hartford assumed a much greater risk with respect to “work performed” by the insured. Accordingly, since the appellant’s sole claim is for damages to the building itself and not for injury to persons or other property, we hold that exclusion (m) applies to release Hartford from liability.

Our decision with respect to exclusion (m) makes it unnecessary to determine whether the completed building is also a “product” within the meaning of exclusion (J).

Judgment affirmed.

      . The italicized words in the portions of Hartford’s policy quoted here appear in this form in the original document to signify terms which are defined elsewhere in the policy.

      . United American Life Insurance Co. v. Beadel, 13 Ariz.App. 196, 475 P.2d 288 (1970) ; Caballero v. Farmers Insurance Group, 10 Ariz.App. Cl, 455 P.2d 1011 (1969).

      . “When used in reference to this insurance (including indorsements forming a part of the policy) :

        “contractual liability” means liability expressly assumed [by the insured] under a written contract or agreement; provided, however, that contractual liability shall not be construed as including liability under a warranty of the fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;”


author: LAY, Circuit Judge.

text:
    Larry STRADLEY, Appellant, v. Richard R. ANDERSEN, as Chief of the Division of Police, Department of Public Safety, City of Omaha, Nebraska, Appellee.
    No. 72-1698.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 12, 1973.
    Decided May 17, 1973.
    Bennett G. Hornstein, Omaha, Neb., for appellant.
    Kent Whinnery, Omaha, Neb., for ap-pellee.

      Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       The Honorable Talbot Smith, Senior United States District Judge, Eastern District of Michigan, sitting by designation.

   LAY, Circuit Judge.

The Omaha Department of Public Safety, Division of Police, acting by and through its Police Chief, Richard R. Andersen, has promulgated a general order relating to standards of appearance and hair style for police officers. The plaintiff, Larry Stradley, an officer in good standing, brought this action under Section 1983 of Title 42 of the United States Code, alleging that his constitutional rights were violated by enforcement of the order. He alleges that he wears his hair and clothing neatly and in a well-groomed fashion with a portion of his hair extending slightly below his ears. He asserts that this does not restrict or hamper him in any way in the performance of his duties. He brought the suit as a class action for himself and other officers similarly situated. The district court, after trial on the merits, found that the regulation was reasonable and calculated to achieve legitimate state interests. Stradley v. Andersen, 349 F.Supp. 1120 (D.Neb.1972). We affirm.

The regulation reads:

“This order pertains to Chapter I, Section 19, of the Rules and Regulations of the Police Division, ‘Unprofessional actions, or conduct, while on duty or in uniform.’
“All personnel shall be alert, efficient, neat and business-like before the public.
“Hair appearance has become quite a problem as far as appearance before the public is concerned within the Omaha Police Division.
“Numerous comments, complaints, and criticism have been directed

toward the Police Division based on outlandish types of hair styles. In order to reasonably conform with the general public, the following regulations shall be applicable, and shall be effective as of 1 June 1971, for all members of the Omaha Police Division.

“HAIR: Hair must be evenly tapered on sides and back. No hair will lap or curl over the ears or shirt collar. Hair style cannot interfere with the normal wearing of the uniform headgear. This means that the hat of the uniform, when properly worn, must be in the close proximity to both the ears and the eyebrows of the person wearing the hat in a standard appearing manner. “SIDEBURNS: Maximum length of sideburns will be to the bottom level of the ear lobe. No flair (muttonchops). Sideburns must be evenly tapered, cut parallel to the ground and can be no wider than one inch. “MUSTACHE: Mustaches must be neatly trimmed and tapered. Mustaches shall not extend beyond the corner of the mouth looking at a person directly to his face. No handlebar or Fu Manchu types of mustaches will be allowed. “GOATEE OR BEARD: Beards and Goatees will not be allowed under any conditions. The face must be clean shaven for working purposes other than specified above.

“Exceptions to these rules shall only be allowed for officers who are working in the undercover type of activity within and for the Omaha Police Division. The special exemptions for this purpose shall be by request and directive of the Deputy Chief in charge of the Criminal Investigations Bureau.” In essence, Chief Andersen testified that the purposes of the regulation were (1) the maintenance of an efficient and disciplined police force and (2) the maintenance of public confidence.

The order is not attacked as being unreasonable. The basis of plaintiff’s argument is that “[p]olicemen, like firemen, probation officers, teachers, other classes of public employees, public school students, and other persons have a federal constitutional right to choose their personal hair style and length.” The argument is made that the defendant has failed to sustain its burden that such an order is necessary to enable police officers to carry out the mission of a city police department.

The plaintiff further contends that this court’s opinion in Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971), upholding the right of a school boy to wear whatever hair style he and his parents desired, is equally applicable to a police officer. We there found that the right involved, although not cognizable on a First Amendment ground, was based on the freedom to govern one’s personal appearance and commanded protection under the Due Process Clause of the Fourteenth Amendment. However, we acknowledged that recognition of this right was not unconditional and required us to weigh the competing interests asserted. We found that the school authorities failed to demonstrate any necessity of the regulation of hair length and style.

Appealing contrasts are urged to justify individual styling — thus plaintiff pleads that the order will allow mustaches “such as that of • Adolph Hitler, but not permit those modeled after Mark Twain, Dean Acheson or other prominent and respected persons.” We cite these comparisons because we think the essential weakness of the argument lies in this contrast — plaintiffs are not serving in the role of dictators, authors or statesmen, but rather, they have undertaken responsible roles in a disciplined organization as public officers to enforce and maintain law and order in a given community. Herein lies the distinction between weighing the competing interests of a school board and a school student.

Traditionally, the policeman has been a highly trained officer who is entrusted with a responsible and oftentimes dangerous role as a public servant. His work habits on active duty require disciplined conduct, regimentation and frequent strict adherence to regulation and authorized detail. His job is often a delicate and difficult task to lawfully act against those who are sometimes unwilling to recognize any rules or ethics. It is essential that a policeman’s training be such that he be taught to obey strict disciplinary procedure and rules in order to lend practical assurance that he will follow command and not abuse his awesome authority. As part of this discipline the police department has determined that an officer shall be neat in his appearance. There can be little argument that this requirement constitutes a legitimate departmental interest.

We reject the idea that community standards provide a legitimate basis in weighing constitutional rights guaranteed to the individual. Whether public acceptance or rejection of a particular hair style exists in one community or another should not be a standard of concern to a federal court. What ■ must be controlling to the court in evaluating competing interests is whether the policy of the state espouses a societal interest which outweighs the individual concern. Thus, what is essential here is that the Public Safety Department stresses the need for public respect of its officers and that it feels such respect flows in part from the officers’ individual appearance. If Chief Andersen misjudges, as plaintiff suggests, what necessary measures should be taken to achieve community respect, this basically must be the department’s concern, not ours.

One may argue that how one wears his hair has little to do with whether an officer might effectively apprehend criminals or otherwise fulfill his assigned mission as a policeman. This misses the mark. The critical factor is that police officialdom deems it necessary that the officer be well disciplined and that as part of that internal discipline, he be required to maintain a neat appearance. The degree of that appearance, as long as it is not arbitrary or unreasonable, should not be the court’s concern.

Unlike the school cases, those officials who have spent their life in police work, who are trained in law enforcement discipline, possess far better empirical judgment of what is essential to achieve an efficient and disciplined police force than the officers themselves, the public or the predeliction of individual judges. If this results in a problem of low morale of police personnel, which plaintiff contends, this too is Chief Andersen’s dilemma, not the courts’. This does not mean that the courts will ignore an arbitrary edict which might deprive a police officer of his sense of dignity or morality as a human being. But we are not dealing with arbitrariness — the only issue before us is the authority of a Public Safety Division of a municipality to set standards of neat appearance for its personnel balanced against the individual rights of a police officer to appear as he likes. In light of this competing and legitimate interest of the Public Safety Division, as weighed against the individual officer’s personal likes or dislikes, we sustain the regulation. In accord Greenwald v. Frank, 70 Misc.2d 632, 334 N.Y.S.2d 680 (Sup.Ct.1972); Dwen v. Barry, 336 F.Supp. 487 (E.D.N.Y.1971); cf. Doyle v. Koelbl, 434 F.2d 1014 (5 Cir. 1970), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 (1971).

For the reasons herein stated, the judgment of the district court is affirmed.

      . The district court’s earlier opinion requiring exhaustion of state remedies before federal trial, 334 F.Supp. 72 (D.Neb. 3971), was reversed and remanded for a plenary trial, 456 F.2d 1063 (8 Cir. 1972).

      . Plaintiff urges that in the Dwen case the regulation applied only to uniformed officers. The present regulation encompasses all police department personnel with special exceptions allowed for those officers working in undercover activity. The district judge in Dwen expressed a concern that if applied to all members of the police force it might fall within constitutional prohibitions. By our holding and for the reasons we have generally discussed, we disagree.


author: HAYS, Circuit Judge:

text:
    BANCO NACIONAL de CUBA, Appellant, v. The FIRST NATIONAL CITY BANK OF NEW YORK, Respondent.
    Nos. 125-126, Dockets 32533, 33864.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 30, 1973.
    Decided May 11, 1973.

      Victor Rabinowitz, New York City (Leonard Boudin, Michael Krinsky, Dorian Bowman, and Eric M. Lieberman, Rabinowitz, Boudin & Standard, New York City, on the brief), for appellant.
    Henry Harfield, New York City (Herman E. Compter, James B. Keenan, Shearman & Sterling, New York City, on the brief), for appellee.
    Before LUMBARD and HAYS, Circuit Judges, and BLUMENFELD, ■ Chief Judge.

       Of the United States District Court for the District of Connecticut, sitting by designation.

   HAYS, Circuit Judge:

The involved history of this case began in July, 1967 with the decision of Judge Bryan in the Southern District of New York, 270 F.Supp. 1004, finding that the confiscation of National City Bank’s property in Cuba was a violation of international law and that Banco Nacional and the Cuban Government were one and the same for the purposes of this litigation. On appeal, this court held that the act of state doctrine applied to bar adjudication of National City Bank’s counterclaim and reversed the decision of the District Court, not reaching, of course, .the merits of the District Court decision. The Supreme Court, 400 U.S. 1019, 91 S.Ct. 581, 27 L.Ed.2d 630 granted certiorari and remanded the case to this court for reconsideration in the light of a letter from the Legal Adviser of the Department of State to the Supreme Court indicating that the foreign policy interests of the United States would not be injured by litigation of the merits of the instant case. This court thereupon entered a second opinion, 442 F.2d 530, adhering to its original result. The Supreme Court again granted certiorari, and, reversing this court, held that the act of state doctrine did not bar consideration of the merits. The Supreme Court remanded the case to this court for the second time for “consideration of [Banco Nacional’s] alternative bases of attack on the judgment of the District Court.” First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 770, 92 S.Ct. 1808, 1814, 32 L.Ed.2d 466 (1972).

The facts giving rise to this lengthy and involved litigation are fully stated in the earlier opinion of this court, 431 F.2d 394 (2d Cir. 1970), and it is unnecessary to recount them here. Suffice it to say that Banco Nacional originally brought suit in the District Court for the Southern District of New York for (1) the excess realized by National City Bank on the sale of collateral held as a security for a loan, and (2) for deposits by nationalized Cuban banks in National City Bank in New York. National City Bank counterclaimed, arguing that the Republic of Cuba was the real party in interest, that the Cuban government was indebted to it for the value of illegally expropriated property of National City Bank in Cuba, and that it was entitled to set off this obligation as a complete defense to the claims asserted by Banco Nacional. National City Bank then moved for summary judgment. The District Court granted the motion and Banco Nacional appealed.

Apart from the act of state defense Banco Nacional presented two major arguments in the District Court (1) that National City Bank’s counterclaim cannot properly be asserted against Banco Nacional but is directed at the government of Cuba, and (2) that in any event the nationalization of National City Bank’s property in Cuba did not violate international law. The District Court found against Banco Nacional on both points, holding (1) “There is no serious question that the Government of Cuba and Banco Nacional are one and the same for the purposes of this litigation” and (2) “The totality of circumstances presented by this case — a patent failure to provide adequate compensation, a retaliatory confiscation by a foreign government, and discrimination against United States nationals — compel a finding that the Cuban decree directing confiscation of First National City’s property was in direct contravention of the principles of international law. Thus First National City is entitled to set-off against the first claim for relief such amount as may be due and owing to it from the Cuban Government as compensation for the seized Cuban properties, and I so hold.” 270 F.Supp. 1004, 1006, 1010 (S.D.N.Y.1967).

We agree with the judgment of the District Court.

I.

In respect to the expropriation of National City Bank’s property in Cuba the Republic of Cuba and Banco Nacional acted as a single entity. We therefore have no difficulty in finding that for the purposes of this litigation Banco Na-cional is the alter ego of the Republic of Cuba, or as the District Court said, “the Government of Cuba and Banco Nacional are one and the same for the purposes of this litigation.”

The undisputed evidence in the record amply supports the conclusion that Banco Nacional and the government of Cuba acted as one in the nationalization of National City Bank’s property.

Law No. 891 of October 14, 1960 provided :

“The banking function is hereby declared of public interest and from this moment on, only the State shall be authorized to exercise it through the organizations created for that purpose it

Law No. 891 also provided that nationalization was to “be carried out through Banco Nacional de Cuba.”

On Friday, September 16, 1960, the take-over of National City Bank’s assets in Cuba began. Late in the day, the vice-president of National City Bank in charge of Cuban operations, Juan D. Sanchez, began to receive telephone calls from the officers in charge of the branches of National City Bank in Cuba indicating that the Cuban militia were demanding the keys to the National City Bank’s properties. At 11:00 P.M. on the 16th, Sanchez contacted one Bustabad, a member of the militia and a delegate of the bank employee’s union. Bustabad stated that the militia had received orders from Banco Nacional de Cuba to occupy all of National City Bank’s branches.

On the night of the 16th all of National City Bank’s branches were occupied by the Cuban militia acting on orders from officials of Banco Nacional.

On Monday, September 19th, Sanchez, at the instructions of Cuban officials, appeared at the main office of National City Bank in Havana. Here he found armed men patrolling the bank, men who were members of the bank employee’s branch of the militia. Sanchez was officially informed of the nationalization and told that Banco Nacional officials were taking over the operation of the bank. The official order nationalizing the bank was signed by Che Guevara, Minister of State, as President of Banco Nacional.

All of these facts, uncontested by Banco Nacional, point inescapably to the conclusion that Banco Nacional and the government of Cuba acted as one in implementing the nationalization policy.

Appellant urges that Banco Nacional was an independent juridical entity, an “autonomous organization” free from the control of the Cuban government. However, we are not concerned with any theoretical overall relationship between the bank and the Cuban government. The decisive facts here are those which show the function of Banco Nacional in the expropriation of National City Bank’s property in Cuba. Those facts clearly indicated Banco’s active role as a mere arm or division of the Cuban government.

II.

We see no reason to re-open the question whether the Cuban expropriation violated international law. This court’s decisions in Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845 (2d Cir. 1962), reversed on other grounds, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) and Banco Nacional de Cuba v. Farr, 383 F.2d 166 (2d Cir.), cert. denied, 390 U.S. 956, 88 S.Ct. 1038, 20 L.Ed.2d 1151 (1967) establish that the actions of the government of Cuba and Banco Nacional in the instant case were violations of international law.

Affirmed.

      . Banco Nacional also contends that the counterclaim of National City Bank was procedurally invalid since it was directed at the Republic of Cuba and not at Banco Nacional. Banco Nacional argues that the Republic of Cuba is not an “opposing party” in the present suit within the meaning of Rule 13 of the Federal Rules of Civil Procedure. Since we conclude that Banco Nacional and the Republic of Cuba are one and the same for the purposes of this litigation, it follows that the Republic of Cuba is an “opposing party” within the meaning of Rule 13 and that, therefore, the counterclaim was properly asserted.


author: PER CURIAM.

text:
    UNITED STATES of America v. John DOE (two cases). Appeal of Marilyn ALPEREN. Appeal of Robert ALPEREN.
    Nos. 73-1062, 73-1063.
    United States Court of Appeals, First Circuit.
    April 4, 1973.

      Barry H. Gerstein and Gerstein & Weiner, Boston, Mass., on brief, for appellants.
    Edward F. Harrington, New Bedford, Mass., Attorney-in-Charge, and George F. Kelly, Sp. Atty., U. S. Dept, of Justice, on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   PER CURIAM.

During the spring of 1971 a court-authorized tap was placed on the telephone line going to a house occupied by Robert and Marilyn Alperen, husband and wife, pursuant to 18 U.S.C. § 2510 et seq. Conversations of the wife indicating that gambling activities were being conducted from the house were overheard. In due course the husband and wife were summoned to appear before a federal grand jury. Upon their being asked essentially duplicative questions, both claimed self-incrimination and invoked the Fifth Amendment. Immunity was thereupon offered to them under 18 U.S.C. § 2514. When the questions were re-put, both again refused to testify, invoking, inter alia, the husband-wife privilege against testifying against the other, the only issue now raised. Upon their insistence in this court, they were adjudicated in contempt, and from that order they appeal. Pending our resolution of the appeals, they have been admitted to bail.

Although the seeming drift of the questions makes this case perhaps a clearer one for the invocation of the privilege than might be some others, cf. United States v. George, 6 Cir., 1971, 444 F.2d 310, it must be apparent that if appellants’ position is to be sustained, it would seem seriously to frustrate both the federal, and the state, Mass.G.L. c. 233 § 20C et seq., procedures whereby testimony thought worth the cost may be obtained by offering the witness immunity from criminal prosecution.

Section 2514 provides in part,

“No such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled ... to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding against him in any court.”

This statute does not, of course, grant immunity to anyone, including a spouse, other than the witness himself. The government seeks to remedy that objection, so far as the present case is concerned, by saying that it has no interest in either spouse, and supports its position by its conduct offering the statutory immunity to both. To this appellants counter,

“If one of the Alperens continues to refuse to testify before the Grand Jury, then he or she will have no immunity.”

The privilege not to testify against a spouse is a common law, and not a constitutional one. It is particularly an area where the court may introduce desirable changes. Funk v. United States, 1933, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369; Wyatt v. United States, 1960, 362 U.S. 525, 80 S.Ct. 901, 4 L.Ed.2d 931. Just as the Fifth Amendment cannot be claimed when the testimony is merely personally unpalatable (nor can immunity be claimed on that basis, LaTona v. United States, 8 Cir., 1971, 449 F.2d 121) we hold that it would not merely be misapplication of the privilege, but an unwarranted extension, to allow either spouse to invoke it when both are immunized from prosecution and are asked questions about the same transaction.

The orders holding appellants in contempt are affirmed.


author: THOMSEN, District Judge.

text:
    Brian J. MORTIBOYS, Plaintiff-Appellee, v. ST. MICHAEL’S COLLEGE, Defendant-Appellant.
    No. 627, Docket 72-2341.
    United States Court of Appeals, Second Circuit.
    Argued March 27, 1973.
    Decided May 11, 1973.
    Frederick W. Allen, Burlington, Vt. (Karen McAndrew and Wick, Dinse & Allen, Burlington, Vt., on the brief), for defendant-appellant.
    Philip H. Hoff, Burlington, Vt. (James L. Morse, Burlington, Vt., on the brief), for plaintiff-appellee.
    Before FRIENDLY, Chief Judge, LUMBARD, Circuit Judge, and THOMSEN, District Judge.

       Of the District of Maryland, sitting by designation.

   THOMSEN, District Judge.

Defendant college appeals from a judgment for plaintiff in an action for damages based on injuries he received in a skating accident in February 1968. St. Michael’s College was then a small liberal arts college for men, in Colches-ter, Vermont. Plaintiff was there on a full athletic scholarship for the purpose of playing basketball.

The college had no organized hockey program, but provided two outdoor ice rinks on which students could skate at their pleasure. The one in question was in the form of a hockey rink, but smaller; it had sturdy side boards and nets, and was used by students for skating, pushing a puck around and “pickup” games.

The undisputed evidence shows that college employees scraped and flooded the rink whenever the weather would permit, usually a couple of times a week, when the temperature would drop to near zero; they removed snow when necessary and checked the rink daily or every other day.

On Friday, February 24, about 1:30 or 2:00 p. m., plaintiff and a friend walked over to the rink with their skates and hockey sticks, in the hope of picking up a game. They found six or seven others there, and skated around for about an hour and a half, passing the puck to each other. The temperature had risen to about 35°, but as the sun went down it became colder. The ice was rather rough, but skatable; it was “snowflakey” and cut up from having been skated on. As plaintiff was going after the puck, skating rapidly but not full speed toward the boards, intending to pass the puck to his friend, he noticed a small lump or ball of ice, between i/2 inch and 1 inch in height; he raised his foot to pass over it, but when he put his foot down, his skate hit the lump, causing him to fall and injure himself severely.

Plaintiff had not previously seen the lump, and there is no evidence that anyone else saw it before or after the accident. Outdoor ice is exposed to the vicissitudes of the weather and the accumulations caused by skaters using the surface. It necessarily becomes somewhat rough during such use. It is a matter of speculation what caused the lump to be formed and whether it had been there for any substantial length of time.

Plaintiff’s evidence shows that the maintenance of an indoor rink in suitable condition for intercollegiate hockey requires a staff, expensive equipment and repeated smoothing of the ice during games, as well as before games and practice sessions. Such maintenance cannot reasonably be required of a college providing an outdoor rink for the kind of use contemplated and to which this rink was actually being put at the time of the accident. The duty on the college was reasonable care under all the circumstances.

“In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises, the condition must have been known to the owner or have existed for such a time that it was his duty to know it.” For-cier v. Grand Union Stores, Inc., 128 Vt. 389, 264 A.2d 796, 799 (1970), quoting from two earlier cases, Dooley v. Economy Store, Inc., 109 Vt. 138, 142, 194 A. 375, 377, and Wakefield v. Levin, 118 Vt. 392, 397, 110 A.2d 712.

As Judge Oakes pointed out in Hoar v. Sherburne Corp., 327 F.Supp. 570 (D.Vt.1971), aff’d 456 F.2d 1269 (2 Cir. 1972), the Vermont court has been increasingly liberal in holding the owner of premises liable to business visitors. The defense of assumption of risk, especially, has been sharply narrowed. But the duty owed to a business visitor or other invitee is still “to keep premises reasonably safe”. 327 F.Supp. at 578. The Vermont court has not repudiated the rule quoted above from Forcier v. Grand Union Stores, Inc.

A statement of the duty, applied to a skating rink, appears in Gaffney v. America on Wheels, 16 N.J.Super. 484, 85 A.2d 1, 2 (1951). The court said:

“There is no doubt that one who conducts a skating rink is not an insurer of the safety of the patrons. It is equally indubitable that one who engages in such a business is under the duty to exercise ordinary care to render and maintain the premises which are devoted to that use reasonably safe and suitable for such intended purpose.”

In Cumberland College v. Gaines, 432 S.W.2d 650 (Ky.1968), plaintiff fell during a physical education class because of a sticky substance on the floor of the gymnasium. The court treated plaintiff as an invitee but denied recovery, stating:

“Where the floor condition is one which is traceable to the possessor’s own act — that is, a condition created by him or under his authority — or is a condition in connection with which the possessor is shown to have taken action, no proof of notice of the con-, dition is necessary. However, where it is not shown that the condition was created by the possessor or under his authority, or is one about which he has taken action, then it is necessary to introduce sufficient proof by either direct evidence or circumstantial evidence that the condition existed a sufficient length of time prior to injury so that in the exercise of ordinary care, the possessor could have discovered it and either remedied it or given fair adequate warning of its existence to those who might be endangered by it.” 432 S.W.2d at 652.

There is no evidence in the instant case sufficient to support the conclusion that the small lump on the ice had existed for a sufficient period of time to render the defendant negligent in failing to discover and eliminate the potential hazard.

The judgment is reversed, with instructions to dismiss the complaint.

      . E. g. a “Zamboni”, a machine described at trial as costing over $10,000 which “scrapes the surface with a blade and picks up the snow, and lays a new surface of hot water which freezes within minutes”.

      . Decided by a three-judge panel of which the present Mr. Justice Brennan was a member,


author: BENSON, District Judge.

text:
    David KEND, Appellee, v. CHROMA-GLO, INC., Appellant.
    No. 72-1389.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 12, 1973.
    Decided April 20, 1973.

      Raymond L. Erickson, Duluth, Minn., for appellant.
    Robert E. Goldman, New York City, for appellee.
    Before GIBSON and ROSS, Circuit Judges, and BENSON, District Judge.

       Judge Benson, Chief District Judge of the District Court of North Dakota, sitting by designation.

   BENSON, District Judge.

A judgment for the plaintiff (appel-lee) for the sum of $51,597.27 was entered on a jury verdict in a diversity action brought in the United States District Court for the District of Minnesota. This is an appeal from the judgment and from the order of the court denying defendant’s (appellant’s) motion for judgment notwithstanding the verdict, or in the alternative, for a new trial.

In June, 1966, Appellee David Kend (Kend), experienced in the name plate industry, contacted Appellant, Chroma-Glo, Inc. (Chroma-Glo), and expressed an interest in the company and its operations. Kend was particularly interested in Chroma-Glo’s production of a my-lar sign which closely resembled metal signs, but which fabricated very much like paper and didn’t require expensive tooling or heavy equipment.

At an August 31, 1966, meeting with the Board of Directors of Chroma-Glo, Kend learned that Cole National Corporation (Cole) was interested in a type of Mylar numeral or letter sign bonded to a rigid aluminum backing. The purpose of the aluminum backing was to prevent the sign from curling. Chroma-Glo could not produce such a product with its existing equipment. Its capital picture was such that it was not in a position to secure additional equipment without financial assistance. Kend suggested that perhaps Cole could be sold a sign with a paper or cardboard backing which would satisfy Cole’s requirements and could be produced with Chroma-Glo’s equipment. It was agreed that Kend would represent Chroma-Glo on a commission arrangement in efforts to sell to Cole.

On September 7, 1966, Kend wrote Chroma-Glo:

“. . . confirming our verbal arrangement, I am going to pursue the ‘Cole National’ project to a conclusion. I will cover all bases both in New York and Cleveland towards concluding a contract with them. As I progress I will be in touch with you to make sure our figures and proposals are sound. You have advised me that Chroma-Glo, Inc. will protect me with your standard commission arrangement in the event that I am successful in selling this account. This commission will be paid for any sales made to this company, whether or not we conclude a long term arrangement.”

The president of Chroma-Glo responded on September 23, 1966:

“. . . I’m anxious to hear from you on our potential business from Cole National Corp. and you have our assurance that you would receive for your efforts the commissions and per cent of over charge over price list as we had discussed it.”

On November 8, 1966, Kend made a presentation to Cole of Chroma-Glo gold and black cardboard mounted letters. Cole was impressed with the cardboard backing feature, and asked for an immediate quotation on black and white similarly mounted letters. Additional presentations with price quotations were made. It appeared an order would be forthcoming and on December 19, 1966, Kend brought a Cole representative to inspect Chroma-Glo’s production facilities and wrote Chroma-Glo:

“Confirming my arrangement with you, you will cover me with a commission on this program which represent the difference between your quoted price to me of .035 cents each and the selling price to Cole of .039 cents each. On the tooling I will be covered on the difference between the quoted price to me of $400 and the quoted price to Cole of $630. On all future items which we quote to Cole, I will be protected by you with a commission percentage in the same amount (10%) which we had established on this'initial program.”

Following the plant inspection, Cole began placing orders with Chroma-Glo for black and white cardboard backed numerals and some eighteen months after the initial black and white order, placed orders for black and gold cardboard backed numerals. Altogether, Cole placed orders totalling $728,364.80.

At about the time Cole began placing its orders, Kend, with Chroma-Glo’s knowledge, became associated with Dura Process Company, a competitor of Chroma-Glo. He continued to negotiate with Cole regarding the full marketing pro-gx-am of Chroma-Glo letters, numerals and signs of various color combinations. With reference to the Cole business, Chroma-Glo wrote Kend on February 8, 1967:

“If they wish, they can select any col- or combination such as olive drab, red, etc., for sale to certain customers such as Bell Telephone Company who uses approximately an olive drab. This would cause no difficulty whatever on our part, provided the quantities were fairly substantial. A color change creates no need whatever in the equipment required to make these parts.”

In March of 1967, during which time Kend testified he remained in contact with Cole on behalf of Chroma-Glo, samples of the mylar numerals were sent to Cole, accompanied by a letter dated March 27, from Mr. Erickson, which stated in part:

“David Kend will see you at your convenience to discuss the price quotations on all of these parts and he will cover with you at the same time the various points and possible changes you may require.”

Mr. Kend testified that he subsequently quoted prices to Cole, including prices on gold and black, in April of 1967. It appears thaf Mr. Kend corresponded with Cole in May of 1967, as to the progress of field testing of Chroma-Glo samples sent in February.

However, it was not until March of 1968, that Cole indicated to Chroma-Glo that it was interested in placing an order for the black and gold numerals. Chroma-Glo did not communicate this information to Kend, and in June, 1968, Cole made substantial purchases of the black and gold numerals. When Kend leaxmed of this purchase, a dispute arose as to whether Kend was entitled to a 10% commission on the black and gold sale.

Chroma-Glo has stated the issues presented for review to be:

“1. Did the trial court err in refusing to instruct the jury that whex-e words or other manifestations of intention bear more than one meaning an interpretation is preferred which operates more strongly against the party using them, as had been requested by the appellant, Chroma-Glo, Inc.?
2. Did the trial court err in refusing to instruct the jury as to the legal meaning of “procuring cause,” as had been requested by the appellant?
3. Did the facts sufficiently support the jury’s finding that the appel-lee, David Kend, was the procuring cause of the sales of the Black and Gold series to Cole National Company?”

Appellee stated a cause of action in his complaint on a theory of exclusive and continuing agency which would entitle him to a commission on all future Chroma-Glo sales to Cole, and demanded judgment accordingly.

In the trial of the case, and as argued to the jury, the parties, in effect, narrowed the issue to whether Kend was entitled to a 10% commission on the sale of black and gold numerals.

The evidence supports the trial judge’s view of the dispute as expressed in his post trial memorandum:

“Over the years defendant sold Cole National some three-quarters of a million dollars worth of its product. It was some two years after Cole National first ordered black and white that it placed an order for black and gold and it is the 10% commission on these sales in the amount of $339,065.86 or a total of $33,906.58 that is in dispute. Defendant admits that on sales of black and white in the amount of $389,334.76 it has only paid $21,242.78 and still owes $17,690.69.”

Although the evidence does establish that the parties did not disagree on the rate of the commission, it is insufficient to establish an exclusive and continuing agency which would entitle the appellee to commissions on all future sales by Chroma-Glo to Cole. On the state of the record at the time the case went to the jury, the determinative issue was whether the appellee was the procuring cause of the sale of the black and gold letters. On that issue, the appellant’s requested instruction on the rule for the interpretation of ambiguous contracts was obviously not appropriate, and it was not error for the trial court to deny the request.

Appellant requested the following instruction on procuring cause:

“To be the procuring cause of a sale, a broker must originate a cause of events, which without break in continuity make a cause of which the sale is the result. It is not enough that you find the plaintiff’s services merely contributed to the ultimate sale, his services must have been the procuring and effective cause., If you find that the agency of Mr. Kend was terminated or that he abandoned performance or ended his negotiations with Cole National Company before a sale was made, then he would not be the procuring cause thereof.”

The trial court’s instruction on procuring cause reads:

“Now under our system of law in this country, parties are generally free and competent to agree to whatever terms of a contract they may wish or desire, so long as it is lawful. Now if such an agreement is found, that controls. Absent such an agreement, however, and if there be no such agreement found, an agent whose compensation is conditioned upon his accomplishment of a specific result is entitled to the agreed compensation if, and only if, he is the effective cause of accomplishing the result.”

Minnesota follows the general rule that a broker or agent, where the agency created is non-exclusive,

“is not entitled to a commission unless he was the procuring cause of the sale; that is, it must have been the direct result of his efforts to bring it about, and a broker [or agent] seeking to recover a commission has the burden of proving this affirmatively.” Rees-Thompson-Scroggins, Inc. v. Nelson, 276 Minn. 453, 150 N.W.2d 568, 571 (1967), citing Neumeier v. Sper-zel, 223 Minn. 60, 64, 25 N.W.2d 651, 653 (1946).

Appellant contends that his requested instruction on procuring cause must be given to be in accordance with the pronouncements of the Supreme Court of Minnesota, in Neumeier and Rees-Thompson-Scroggins, Inc.

Generally, words which are of significance in their ordinary or popular meaning need no further legal explanation. “Effective”, used as an adjective, is capable of such meaning and needs no legal explanation. Webster’s Third International Dictionary, 724 (1967) states that the word comes from effectivus, latin, the past participle of efficere meaning to bring about, accomplish or effect. “Capable of bringing about an effect: productive of i’esults” is the primary meaning given. “Effectual [a synonym of effective] may apply to what has accomplished an intended result and may approach connotations of decisive." Webster’s, p. 724. “Effective cause”, in the context of this case, would connotate, in ordinary meaning, the primary or decisive cause of the desired result for which Kend was obtained — to sell Chroma-Glo’s products to Cole National. The given instruction to the jury would convey the concept that Kend could not receive a commission unless he brought about the sale of the black and gold series to Cole National through his efforts. Effective cause, as used in ordinary or popular language portrays a certain exclusiveness in that there cannot be two effective causes, no more than there can be two “procuring causes.”

The Supreme Court of South Dakota set forth the two “approaches” to justifiable commissions without distinguishing between them:

“A number of the cases digested in 34 Words and Phrases, phrase the definition of ‘procuring cause’ substantially in terms as one originating a series of events which without break in their continuity, result in the accomplishment of the prime object of the broker’s employment.”
“The Restatement employs the phrase ‘effective cause’ and states, ‘An agent is an ‘effective cause’ as that phrase is used in this Section, when his efforts have been sufficiently important in achieving a result for the accomplishment of which the principal has promised to pay him, so that it is just that the principal should pay the promised compensation to him.” Mehlberg v. Redlin, 77 S.D. 586, 96 N.W.2d 399, 401 (1959).

Actually there is no distinction between the two approaches as both focus upon compensation of one who accomplishes the object of his agency. A perusal of Minnesota cases not only emphasizes this, but also makes clear the Supreme Court of that State did not require the “without break in continuity” language to be included in all instructions on the subject. The primary concern of the Minnesota law is the protection of the principal against multiple claims for commissions on any one transaction. See Carney v. John Hancock Oil Co., 187 Minn. 293, 245 N.W. 367 (1932).

While Rees-Thompson-Scroggins, Inc. emphasized the “without break in continuity language,” that court also stated:

“. . . The test is whose efforts tipped the scale and induced the owner and purchaser to come to agreeable terms.” 150 N.W.2d at 571. (Emphasis added).

Here, the evidence clearly established that Cole was initially interested in letters bonded to rigid aluminum backing which Chroma-Glo couldn’t produce. The Chroma-Glo to Cole sales of black and white and black and gold numerals was brought about by Kend’s expertise and efforts in demonstrating to Cole that numerals on cardboard backing would satisfactorily meet Cole’s requirements. In this ease the time lapse on the black and gold sales was therefore of no significance on the issue of whose efforts tipped the scale or who was the procuring or effective cause.

We deem it unlikely that a modification of the instruction as suggested by Chroma-Glo would have changed the jury’s verdict. Lynch v. Traveler’s Indemnity Company, 452 F.2d 1065 (8th Cir. 1972).

There was no error in the instructions, and the evidence is sufficient to support the verdict.

Affirmed.