author: DUNIWAY, Circuit Judge: RENFREW, District Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Edward Martin ROTHMAN, Defendant-Appellant.
    No. 73-1286.
    United States Court of Appeals, Ninth Circuit.
    Nov. 27, 1973.
    Rehearing Denied April 19, 1974.

      William M. Owens (argued), Encinitas, Cal., for defendant-appellant.
    Harry D. Steward, U. S. Atty., Shelby R. Gott, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
    Before DUNIWAY and CHOY, Circuit Judges, and RENFREW, District Judge.

       The Honorable Charles B. Renfrew, United States District Judge, Northern District of California, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Rothman appeals from his conviction for possession of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1). He challenges the denial of his motion to suppress the marijuana as the fruit of an improper search.

When a motion to suppress has been denied we view the evidence in the light most favorable to the government. United States v. Sherman, 9 Cir., 1970, 430 F.2d 1402, 1404. On May 5, 1972, Rothman purchased an airplane ticket to Hawaii at the Western Airlines counter at San Diego airport. The ticket agent believed that he fitted the Federal Aviation Administration’s profile of potential airplane hijackers. Rothman went to the boarding gate, where he passed through the magnetometer without activating it. He was then detained for questioning by a deputy United States Marshal who had been told that Roth-man met the profile.

Rothman told the deputy that his name was Roberts and that he had no identification. Rothman then placed his jacket on the counter in front of the deputy, who reached into the jacket pocket thinking that the bulge in the jacket might be a weapon. Only money and keys were found. Rothman produced identification from his wallet showing him to be Rothman. The deputy told Rothman that a further identification check would have to be run in the office before he would be permitted to fly.

While the deputy was unlocking the door to his office, Rothman grabbed the deputy’s right hand and jerked him approximately two to three feet. He was immediately arrested for assaulting a federal officer and his hands were handcuffed behind his back. He was given a Miranda warning.

Rothman’s checked luggage was removed from the plane and brought to the office in which he was being held by the deputy. The deputy asked Rothman if he could search the luggage. Roth-man refused permission to search. The deputy called the Federal Bureau of Investigation asking that agents be sent over to investigate the assault charge. A forty-five minute conversation ensued between Rothman and the deputy in which the only reference to the case was that Rothman asked the possible punishment for assaulting a federal officer and the deputy told him three to five years. The F.B.I. arrived, interrogated Roth-man at length and then went into an adjoining room. At some point during the time that Rothman was in the office the handcuffs were removed and he was handcuffed again with his hands in front of him.

The following conversation then occurred :

Rothman: “Why don’t you go ahead and open the bags ?”
Deputy: “No, if you refuse to open them I don’t want to open them now.” [Something was then said about a search warrant.] “We can get one and probably will later on.”
Rothman: “What is the use of going through all this, go ahead and open the bags, it is okay.”
Deputy: “No, I don’t want to open them now. I won’t do it. Why don’t you open it now? The keys are laying here on the desk, if you want to open it go ahead.”

Rothman took the keys which had been placed in front of him and opened his luggage which contained thirty-nine kilos of marijuana.

Under the Fourth Amendment, warrantless searches, with a few specifically established exceptions, are “per se” unreasonable. Schneckloth v. Bustamonte, 1973, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854; Katz v. United States, 1967, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. The government argues that Rothman voluntarily consented to the search, that the search was justified as incident to a lawful arrest, and that the search was a valid administrative search and thus that the motion to suppress was properly denied.

1. Consent

Voluntary consent to a search is a recognized exception to the Fourth Amendment warrant requirement. Schneckloth v. Bustamonte, supra, 412 U.S. at 219, 93 S.Ct. 2041. Davis v. United States, 1946, 328 U.S. 582, 593-594, 66 S.Ct. 1256, 90 L.Ed. 1453; Zap v. United States, 1946, 328 U.S. 624, 630, 66 S.Ct. 1277, 90 L.Ed. 1477. The test for consent is voluntariness and “voluntariness is a question of fact to be determined from all the circumstances” of a particular case. Schneckloth v. Bustamonte, supra, 412 U.S. at 248-249, 93 S.Ct. at 2059.

The government bears the initial burden of proving consent. United States v. Davis, 9 Cir., 1973, 482 F.2d 893, slip op. at 31. On appeal we examine the trial court’s finding of fact (such as the fact of consent) under the “clearly erroneous” rule. United States v. Page, 9 Cir., 1962, (in banc) 302 F.2d 81, 85.

The trial court’s finding of voluntary consent was based primarily upon Roth-man’s original refusal to permit the search. The trial court reasoned that because Rothman was aware of his option to refuse, his eventual consent was voluntary.

Bustamonte held that “knowledge of a right to refuse is a factor to be taken into account, [but] the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent.” Schneckloth v. Bustamonte, supra, 412 U.S. at 249, 93 S.Ct. at 2059. Bustamonte cuts two ways. The'knowledge of the right to refuse consent is no longer a necessary condition for valid consent, but neither is it necessarily a sufficient condition. It is only an element to be considered as part of the “totality of circumstances.” What is required is a “careful sifting of the unique facts and circumstances of each case.” Schneckloth v. Bustamonte, supra, 412 U.S. at 233, 93 S.Ct. at 2050.

“Two competing concerns must be accommodated in determining the meaning of a ‘voluntary’ consent — the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.” Id. at 227, 93 S.Ct. at 2048. Warrantless consent searches are permissible because they enable the police to investigate in situations where the “stigma and embarrassment” of arrest or a “far more extensive search pursuant to a warrant” may be avoided. Id., at 228, 93 S.Ct. at 2048. “Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway or in a person’s home or office, and under informal and unstructured conditions.” Id. at 231-232, 93 S.Ct. at 2050. The consent search as a tool of police investigation is viewed by the Court as a supplementary aid to routine informal investigatory work which “normally occur in a person’s own familiar territory.” Id. at 247, 93 S.Ct. at 2058.

In the present case the “competing concern” of the policy is less significant than under normal consent search conditions. Here, Rothman was arrested and handcuffed and had been in incommunicado custody for some time when he opened the bags. He was by no means in an informal atmosphere or on familiar grounds. Rather, he was arrested, handcuffed, isolated in a strange place, given a formal Miranda warning and then interrogated by three officers over a period of approximately two hours. Such an environment is akin to “the specter of incommunicado police interrogation in some remote station house” and is squarely “inapposite” to the questioning environment contemplated when consent searches were held permissible. Id. at 247, 93 S.Ct. 2041. In a situation such as this the government’s burden to prove voluntary consent is increased. United States v. Page, supra, 303 F.2d 81, 84; Judd v. United States, 1951, 89 U.S.App.D.C. 64, 190 F.2d 649, 651.

“It has been long established that one can validly consent to a search, even though the consent be given while defendant is in custody.” United States v. Page, supra, 302 F.2d 81, 83. The fact that the defendant originally refused to consent may be evidence that he knowingly and voluntarily consented to the search, absent facts to the contrary. Davis v. United States, supra, 328 U.S. 582, 592, 66 S.Ct. 1256, 90 L.Ed. 1453. However, a mere expression of acquiescence may not be enough to sustain a finding of voluntary consent. Bumper v. North Carolina, 1968, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Amos v. United States, 1921, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Cipres v. United States, 9 Cir., 1965, 343 U.S. 95, 97. Where the consent is obtained through a misrepresentation by the government, Bumper v. North Carolina, supra, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, or under inherently coercive pressure and the color of the badge, Johnson v. United States, supra, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; United States v. Marshall, 9 Cir., 1973, 488 F.2d 1169, 1188-1189, such consent is not voluntary.

The psychological atmosphere in which the consent is obtained is a critical factor in the determination of voluntariness. Channel v. United States, 9 Cir., 1960, 285 F.2d 217, 220; Judd v. United States, supra, 190 F.2d 649, 651. In looking at the factual issue of voluntariness, the court must be aware of the “vulnerable subjective state” of the defendant as well as the possibility of “subtly coercive police questions.” Schneckloth v. Bustamonte, supra, 412 U.S. at 229, 93 S.Ct. at 2049, and the inherently coercive nature of custodial interrogation, Id. at 247, 93 S.Ct. 2041.

This case is another instance of a custodial investigation in which, “viewing the totality of the circumstances,” we are compelled to hold that the consent was not voluntary because it was systematically psychologically coerced.

Moreover, this is not a case in which a consent search was necessary or proper. If probable cause for a search was available, the officers had ample time to get a warrant. Johnson v. United States, supra, 333 U.S. 10, 15, 68 S.Ct. 367, 92 L.Ed. 436. There was no risk that evidence would be lost or destroyed or that Rothman would flee. In short, there was no justification for the coercive official tactics which produced this consent. The trial judge’s finding of consent is clearly erroneous.

2. Search Incident to Arrest

The trial court found that the deputy had probable cause to arrest Rothman for assault. We agree. A warrantless search incident to a lawful arrest is, under certain conditions, an exception to the Fourth Amendment’s warrant requirement. Chimel v. California, 1969, 395 U.S. 752, 755, 89 S.Ct. 2034, 23 L.Ed.2d 685. The government argues that the search of Rothman’s luggage was a valid search incident to the indisputably valid arrest.

In Chimel the Supreme Court held that a search incident to an arrest must not go beyond “the area from within which [the defendant] might have obtained either a weapon or something that could be used as evidence against him.” Id. at 768, 89 S.Ct. at 2043. Warrantless searches incident to arrests are thus justified only to the extent that they are necessary to prevent the destruction of evidence or to protect the arresting officer. Coolidge v. New Hampshire, 1971, 403 U.S. 443, 457 n. 11, 91 S.Ct. 2022, 29 L.Ed.2d 564; Chimel v. California, supra, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685.

The government points to United States v. Mehciz, 9 Cir., 1971, 437 F.2d 145, cert. denied, 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 to support its position that the search was valid as incident to the arrest. Mehciz and its progeny are easily distinguishable. In those cases the suitcases searched were in the defendants’ possession at the time of the arrests. United States v. Mehciz, supra, 437 F.2d 145, 146; United States v. Maynard, 9 Cir., 1971, 439 F.2d 1086. In those cases the arresting officers had probable cause to make the searches apart from the arrests. In those cases the criminal activity for which the defendants were arrested related to the contraband found in the briefcases; the contraband provided additional evidence to convict the defendants on the charges for which they were arrested.

Rothman did not have his luggage with him when he was arrested; it had been checked with the airline. Rothman was immobilized, so that the search can not be justified on the grounds of protecting the officer or preserving evidence. The search occurred sometime after the arrest. The object searched had to be brought to the defendant from outside of the arrest area. It is doubtful, therefore, that this search would even have satisfied the old Rabinowitz contemporaneous search standard. Coolidge v. New Hampshire, supra, 403 U.S. 443, 456-457, 91 S.Ct. 2022, 29 L.Ed.2d 564. Here there was no connection at all between the arrest and the search. The officers had no reason to believe that the search would produce anything to support the assault charge. The assault did not provide probable cause to search the luggage. The officer merely wished to open the bags as what he called “standard procedure.”

Such a general search can not be justified merely on the basis of a legal arrest. The police can not circumvent the Fourth Amendment’s warrant requirement by arresting a person and then bringing that person into contact with his possessions which are otherwise unrelated to the arrest. As the Supreme Court reiterated in Chimel, such general searches are forbidden. Chimel v. California, supra, 395 U.S. 752, 767-768, 89 S.Ct. 2034, 23 L.Ed.2d 685.

3. Administrative Search

The government argues that pursuant to regulations issued under the Federal Aviation Act of 1958, 49 U.S.C. § 1354(a), 1421, 1424, the warrantless search is permissible as an administrative search.

Appellant’s bag was not searched as a part of an administrative screening program of searching airline passenger’s carry-on luggage such as was approved in United States v. Davis, supra, 482 F.2d 893; United States, v. Moore, 9 Cir., 1973, 483 F.2d 1361, at 1363. When the search occurred, appellant was already under arrest and there was no possibility that he might take a flight that day. The search, therefore, was unrelated to the airport screening program which was designed to catch potential hijackers, and not to provide a general permission to search unrelated to possible hijacking. “To meet the test of reasonableness, and administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.” United States v. Davis, supra, 482 F.2d 893, at 910. This case falls within our warning in Davis:

“There is an obvious danger, nonetheless, that the screening of passengers and their carry-on luggage for weapons and explosives will be subverted into a general search for evidence of crime. If this occurs, the courts will exclude the evidence obtained.” (At 909, footnotes omitted.)

The government does not argue that any other exception to the Fourth Amendment warrant requirement applies here. The warrantless search of Rothman’s luggage was improper. We need not reach appellant’s other claims of error.

The judgment is reversed and the case is remanded with directions to grant Rothman’s motion to suppress and for such further proceedings as may be appropriate.

RENFREW, District Judge

(dissenting) :

While starting from the same basic premises as the majority, I am unable to join its conclusion that appellant did not voluntarily consent to the search of his baggage. Voluntariness is a question to be determined by consideration of all the circumstances of each specific case. The government bears the initial burden of proof, but once a motion to suppress has been denied, an appellate court must view the evidence in a light most favorable to the government. The “clearly erroneous” rule does apply upon review of the trial court’s findings of fact.

The majority holds that the court below clearly erred in finding voluntary consent and that instead it is “compelled to hold that the consent was not voluntary because it was systematically psychologically coerced ” Majority opinion, supra, p. 1265. Nowhere in its opinion, however, does the majority state what standard of persuasion should have been applied by the trial court. Generally, consent to a search without a warrant must be shown by “clear and positive” evidence. Sherrick v. Eyman, 389 F.2d 648, 651 (9 Cir. 1968), cert. denied, 393 U.S. 874, 89 S.Ct. 167, 21 L.Ed.2d 144 (1968); State of Montana v. Tomich, 332 F.2d 987, 989 (9 Cir. 1964). That vague standard may mean a preponderance of the evidence or evidence establishing consent beyond a reasonable doubt.

A brief review of the evidence easts great doubt on the possibility that the majority accepts the preponderance test. Evidence tending to support involuntariness includes the holding of appellant in incommunicado custody for approximately two hours, the deputy’s response to appellant’s inquiry about the possible punishment for assaulting a federal officer, the interrogation of him by the F. B.I. agents, handcuffing appellant, the deputy’s remark that a search warrant could and probably would be obtained, and the deputy’s final suggestion that, if appellant wanted the bags opened, then he should open them himself. Evidence tending to support a finding of voluntariness includes the Miranda warning, appellant’s initial refusal to permit a search, his testimony that he knew that he had a right to refuse, his suggestions that the deputy open the bags, and the deputy’s response that he would not open them as long as appellant refused to open them.

With this evidence on both sides of the question, the decision below undoubtedly was based on the trial court’s assessment of the psychological susceptibility of appellant to subtle coercion or suggestion. The majority criticizes the trial court’s reliance on appellant’s initial refusal to permit a search, but that factor bears significantly on the question of appellant’s psychology. This question, involving to a great extent an analysis by the trier of fact of the demeanor of the witness, is best left to the trier of fact. Indeed, the “clearly erroneous” rule is based upon that principle. See United States v. Page, 302 F.2d 81, 84 (9 Cir. 1962). If the preponderance of the evidence rule is the appropriate standard of proof in this case, then reversal is completely unwarranted. The combination of taking the facts in a light most favorable to the government, i.e., stressing the facts supporting vol-untariness, and applying the clearly erroneous rule is too great a barrier to overcome for reversal.

This conclusion leads me to believe that either the reasonable doubt standard has been adopted by the majority or its holding is one of law and not of facts. If the former, the use of a reasonable doubt standard is itself an important question which the Coürt should consider in depth before adopting. Here it is adopted by implication — if it has been adopted — and an anomaly has been created. The Constitution does not require the use of the reasonable doubt standard in determining the voluntariness of confessions. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). This Circuit, based upon Lego v. Twomey, has adopted the preponderance standard for judging the voluntariness of a confession in federal cases. United States v. Cluchette, 465 F.2d 749, 754 (9 Cir. 1972). This view should apply a fortiori, one would think, to searches.

But even if the reasonable doubt standard is appropriate here, I am not convinced that the lower court’s ruling is clearly erroneous. ' The reasonable doubt would have to arise from consideration of appellant’s psychology, a factor which does not leap forth from the printed page of the record.

The unpersuasiveness of the majority’s assessment of the facts supports an inference that the majority is actually deciding on the basis of a new principle of law. That principle appears to be: No person can voluntarily consent to a search while in custody if the authorities have a reasonable opportunity to obtain a search warrant. Perhaps the majority would allow that in some instances consent to a warrantless search could be legally voluntary, but its ruling in this case, with its undramatic facts, indicates that instances of voluntariness would be rare exceptions, thus creating the anomalous situation in which a defendant in custody could confess to the commission of a crime but not consent to the search of his belongings. By making this question one of law, the majority opinion would, of course, conflict with Schneckloth v. Bustamonte, 412 U.S. 218, 224, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), which admonishes against the use of mechanical rules in determining voluntariness.

I share the majority’s concern that authorities not be permitted to use subtly coercive tactics within the always oppressive psychological atmosphere of police custody to obtain consent for a search. I differ with the majority on the judicial means for deterring such tactics and preserving individual rights. The only trustworthy device is the finding of facts by a trial judge. The majority, either by, in effect, substituting an appellate court as the main fact-finder, or by announcing a new prophylactic rule of law, has failed to consider all aspects of the consent issue. It ignores other social interests in allowing the use of evidence discovered by a search to which an accused in fact consented voluntarily, as shown by a preponderance of the evidence: the interest in using the best evidence of guilt or innocence and the interest in viewing individuals as free agents capable of knowingly and voluntarily waiving their constitutional rights.

For these reasons, I respectfully dissent.

      . Bustamonte is limited by its facts to cases in which the consenting party is not in custody. Schneckloth v. Bustamonte, supra, 412 U.S. at 248, 93 S.Ct. 2041. However, we have never applied a different test for consent searches on the basis of the preconsent arrest of the consenting party. Cipres v. United States, infra, 343 F.2d 95; United States v. Page, supra, 302 F.2d 81. Arrest is but one factor, albeit a critical one, in determining whether or not the consent was voluntary. This approach is compatible with the Supreme Court’s “totality of circumstances” test and applies that test to all consent search situations.

      . United States v. Maynard, 9 Cir., 1971, 439 F.2d 1086.

      . A decision much relied upon by the majority, Schneckloth v. Bustamonte, 412 U.S. 218, 223-227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), refers to cases involving the question of voluntariness of a confession to aid in determining the relevant considerations for deciding the voluntariness of consent to a search. The issue of the appropriate standard of persuasion in that area is whether the preponderance or reasonable doubt standard should be used. See Lego v. Twomey, 404 U.S. 477, 478-479, 479, n. 1, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). It is now settled in this Circuit at least that the preponderance test applies in judging the voluntariness of a confession in a federal case. United States v. Cluchette, 465 F.2d 749, 754 (9 Cir. 1972).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The holding of Lego v. Twomey is that state courts are not constitutionally required to use the reasonable doubt test, but in a footnote the Supreme Court expressed a broader view: “It is no more persuasive to impose the stricter standard of proof as an exercise of supervisory power than as a constitutional rule.” 404 U.S. at 488, n. 16, 92 S.Ct. at 626.

      . “We sometimes tend to forget that the testimony of a witness, presented to us in a cold record, may make an impression -upon us directly contrary to that which we would have received had we seen and jieard that witness. It ought not to be assumed that United States District Judges are any less determined to preserve constitutional rights than we are.” United States v. Page, 302 F.2d 81, 84 (9 Cir. 1962).

      . The following key language of the majority opinion strongly suggests a legal principle: “Moreover, this is not a ease in which a consent search was necessary or proper. If probable cause for a search was available, the officers had ample time to get' a warrant. * * * [citation omitted] There was no risk that evidence would be lost or destroyed or that Rothman would flee. In short, there was no justification for the coercive official tactics which produced this consent.” Majority opinion, supra, p. 1265.

      . The majority quotes often from Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). That case, however, does not support the majority’s decision in that the Supreme Court approached the facts with a much greater willingness to find voluntary consent. Though the respondent in Bustamonte was not in custody, there was no evidence that he knew that he could refuse to allow a search. The majority here, in contrast, seems to begin with a presumption of involuntariness. Perhaps, as the majority says, Bustamonte cuts both ways, but it does not justify the majority’s swath.


source: Caselaw Access Project

author: ALDISERT, Circuit Judge.

license: Public Domain

text:
    Barry J. QUINONES, Appellant, v. UNITED STATES of America, and United States Bureau of Narcotics and Dangerous Drugs and its Agents and Employees.
    No. 73-1538.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 14, 1974.
    Decided March 6, 1974.

      Robert J. Cindrich, Lawrence G. Zurawsky, McVerry, Baxter, Cindrich & Mansmann, Pittsburgh, Pa., for appellant.
    Richard L. Thornburgh, U. S. Atty., Jay C. Waldman, Asst. U. S. Atty., Pittsburgh, Pa., for appellees.
    Before SEITZ, Chief Judge, and KALODNER and ALDISERT, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal from an order granting the dismissal of a complaint filed under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), requires us to decide whether Pennsylvania courts would be hospitable to a tort claim, sounding in negligence, for damages resulting from an employer’s failure to use due care in maintaining the record of an employee’s performance and work history, and whether such a claim would be barred by the “libel-slander” exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(h). Reasoning that the interest sought to be protected by the plaintiff — freedom from injury to one’s image or reputation — was identical to that protected by the defamatory torts, the district court concluded that the plaintiff’s claim was barred by Section 2680(h) since it was “purely and simply one of libel and slander.” The plaintiff, a former agent of the Bureau of Narcotics and Dangerous Drugs (BNDD), has appealed. We reverse.

In considering defendants’ motion to dismiss, the district court was required to take as true all the allegations of the complaint. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Gibson v. United States, 457 F.2d 1391, 1393 (3d Cir. 1972). Plaintiff’s complaint avers that he was employed for approximately eight years, ending in December, 1969, as an agent and employee of the defendants, first as a special agent for the Federal Bureau of Drug Abuse Control and ultimately as a special agent for the Federal Bureau of Narcotics and Dangerous Drugs; that during his tenure as a federal employee, he received several grade promotions, commendations and awards for the performance of his duties in a manner which was substantially satisfactory or better; that in December, 1969, he resigned from his Federal employment, while stationed in Pittsburgh, Pennsylvania, rather than accept a transfer to Minneapolis, Minnesota; that his resignation was caused by reasons of personal illness, illness in his family, and other personal hardships which rendered impossible plaintiff’s relocation to Minneapolis, Minnesota; that subsequent to terminating his employment with the Federal Bureau of Narcotics and Dangerous Drugs, he made application for new employment with numerous public and private law enforcement agencies and with educational institutions, seeking employment both in law enforcement and in law enforcement education; that he made application with Federal law enforcement agencies in Pittsburgh, Pennsylvania, and in New York City, New York, with Pennsylvania state law enforcement agencies, and with community law enforcement agencies and Western Pennsylvania universities.

In his amended complaint he specifically averred:

9(a). In each instance involving a particular prospective employer, his application for employment was refused by that prospective employer because of adverse statements and comments made to said employer by the defendants herein, and their agents and employees, to the effect that plaintiff is not a fit or competent law enforcement officer, or that plaintiff’s performance with the Federal government was substandard, or that plaintiff was the subject of disciplinary action before his termination with the government agency, or that plaintiff was, in effect, discharged by the Federal agency for misconduct.
9(b). Having undertaken and accepted the status of plaintiff’s employer, the defendants herein assumed the duty and obligation to plaintiff to maintain accurate records of plaintiff’s performance and employment history and to maintain such information concerning plaintiff available to all government employees and other persons having a reasonable and justifiable interest therein. Defendants breached that duty and obligation to plaintiff by their negligent, wrongful, tortious conduct in failing to maintain complete, comprehensive, adequate, and accurate records of plaintiff’s professional performance and employment history, of plaintiff’s exceptional performance of his duties and receipt of commendations and awards in particular circumstances, and of the true circumstances of plaintiff's termination of employment with the federal agencies involved. Defendants further breached their duty and obligation to plaintiff by their failure to maintain and make available to reasonably and justifiably interested persons, including federal agents and employees, of complete and accurate information regarding plaintiff’s performance and employment history.

I.

We take as our threshold inquiry whether plaintiff’s averments set forth a claim upon which relief can be granted, “in appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). And to do substantial justice, reasonable factual inferences will be drawn to aid the pleader. F.R.C.P. 8(f); 5 Wright, Federal Practice and Procedure, § 1363 at 657.

Section 1346(b) of the Federal Tort Claims Act commands that we look to “the law of the place where the [negligent or wrongful] act or omission occurred.” Since the gravamen of plaintiff’s complaint is the negligent maintenance of employment records, and since plaintiff averred that he was last stationed in Pittsburgh, Pennsylvania, it is reasonable to infer that his records were maintained in that state. Thus, we must decide if the state of Pennsylvania would recognize a tort of negligently maintaining employment records as distinguished from the tort of defamation.

Plaintiff argues that the law imposes a duty on an employer to use due care in maintaining an employee’s work history once it has undertaken the task of such recordkeeping and that injury to the ex-employee’s reputation is foreseeable when an employer disseminates such information to prospective employers. For its part, the government argues: “In the instant case, there is present no tort principle which makes an employer’s failure to compile and maintain complete employment records actionable.”

Because there are no precise Pennsylvania precedents, we turn again, as we did in Boase v. Lee Rubber & Tire Corporation, 437 F.2d 527, 531 (3d Cir. 1970), “to the teaching of Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967): ‘federal authorities must apply what they find to be the state law.

. . . In this.respect, it may be said to be, in effect, sitting as a state court.’ ” “[I]t is incumbent on us to make our own determination of what the Pennsylvania Supreme Court would probably rule in a similar case.” Gerr v. Emrick, 283 F.2d 293, 294 (3d Cir. 1960), cert. denied, 365 U.S. 817, 81 S.Ct. 698, 5 L.Ed.2d 695 (1961). In doing so, we perceive our analysis to require two determinations: whether the Pennsylvania law of libel and slander would pre-empt such a claim in negligence; if not, whether that state would recognize plaintiff’s averments as constituting a recognized cause of action in negligence. We have concluded that there would be no pre-emption and that, under the facts as alleged, Pennsylvania courts would be hospitable to a cause of action in negligence.

A.

It is essential to define and analyze the elements of the two torts as recognized by Pennsylvania, a common law state. Conduct is negligent “if the harmful consequences could reasonably have been foreseen and prevented by the exercise of reasonable care.” Lerro v. Thomas Wynne, Inc., 451 Pa. 37, 301 A.2d 705, 708 (1973). Restated, the act of negligence consists of the existence of a legal duty and a breach thereof. “Libel is the malicious publication of printed or written matter which tends to blacken a person’s reputation and expose him to public hatred, contempt or ridicule.” The word “slander” is the general and original word for all kinds of defamation. However, in modern usage it has been limited to defamation by words spoken rather than written, that is, to the speaking of base and defamatory words which tend to prejudice another’s reputation, office, trade, business, or means of making a living. Malice is essential to an action for defamation.

It quickly becomes apparent that the root premises of negligence and defamation are conceptually distinct. Proceeding from this rudimentary analysis to a consideration of the two specific torts embraced by these concepts, we see differences in the causes of action as well. To state a cause of action for negligence the plaintiff must plead a legal duty, a breach of that duty, proximate or legal cause, and actual damage or injury. Boyce v. United States Steel Corporation, 446 Pa. 226, 285 A.2d 459 (1971); Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889 (1970); Kirby v. Carlisle, 178 Pa.Super. 389, 116 A.2d 220 (1955). To state a cause of action for defamation generally the plaintiff must allege the defamatory character of the communication, publication, that the communication refers to the plaintiff, the third party’s understanding of the communication’s defamatory character and its reference to the plaintiff, and injury. Corabi v. Curtis Publishing Company, 441 Pa. 432, 273 A.2d 899 (1971); Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962); Act of August 21, 1953, P.L. 1291, § 1, 12 Pa.Stat.Anno. § 1584a. As previously observed, malice is essential to an action for defamation in Pennsylvania; as a general rule, it is presumed or implied to exist from the unprivileged publication of defamatory words actionable per se. Corabi v. Curtis Publishing Company, supra, 273 A.2d at 909. It is not necessary that the defendant harbor ill will against any particular person. Legal malice alone is sufficient to support an action. Legal malice has been defined as “a wrongful act done intentionally, without just cause or excuse. . .” Ibid. Thus, it appears that Pennsylvania considers the defamation torts of libel and slander to be intentional in nature, rather than accidental or unintentional. Harper and James also list the law of defamation in “Part One: Intended Torts”; negligence is listed in “Part Two: Accidents.”

In, addition to the differences in the ingredients of these separate torts, the Pennsylvania legislature has seen fit to codify certain aspects of the law of defamation. There is no such counterpart in the general law of negligence. The legislature has prescribed a separate statute of limitations for defamation actions, which is shorter than those for injuries or property damage from acts of negligence generally.

Another distinction is the requirement of proof of injuries. Pennsylvania requires proof of actual damages in order to recover in an action for negligence'. Kirby v. Carlisle, supra. In defamation if the words in themselves are defamatory, defamatory per se, general damages for loss of personal or business reputation are recoverable and no averments or proof of special damages are necessary. Cosgrove Studio and Camera Shop, Inc. v. Pane, supra, 182 A.2d at 758.

Notwithstanding these distinctions, it would seem that the interest sought to be protected in this case, whether by an action in negligence or in defamation, would appear to be the same: “the interest in reputation — the interest in acquiring, retaining, and enjoying a reputation as good as one’s character and conduct warrant.” But this phenomenon is not unusual to the substantive law of torts. For example, if one strikes another with his automobile, under certain circumstances, three separate torts could be pursued in Pennsylvania: trespass vi et armis, negligence and strict liability. Each protects the plaintiff’s interest in freedom from bodily injury. In the case sub judies the plaintiff is merely protecting his interest in his reputation and is not restricted to the choice of one remedy. Similarly, in federal practice one civil remedy will not pre-empt another, and specifically, it has been held that one remedy will not pre-empt others under the Federal Tort Claims Act. Rogers v. United States, 397 F.2d 12, 15 (4th Cir. 1968).

In sum, the essence of the tort of defamation is the publication of defamatory matter. The gravamen of plaintiff’s complaint, as recognized by the district court, was the “BNDD’s alleged failure to maintain adequate employment records. . . . ” It is not the publication of the incorrect employment history and record that serves as the foundation of plaintiff’s complaint; it is the method in which the defendant maintained the record of his employment that is being criticized. Accordingly, we are persuaded that the Pennsylvania courts would not view the defamatory torts as pre-empting a cause of action sounding in negligence and based on an employer’s failure to use due care in the maintenance of an employee’s employment records.

B.

This brings us to the question whether Pennsylvania would recognize plaintiff’s allegations as constituting a cause of action in negligence. We first must determine whether as set forth in the Restatement, Torts 2d, “the interest invaded is protected against unintentional invasion,” § 281(a), or as more familiarly stated, whether his employer owed a legal duty to the plaintiff.

Plaintiff must bring himself within the scope of a definite legal obligation, so that it might be regarded as personal to him. “Negligence in the air, so to speak, will not do.” Professor Leon Green reminds us: “The scope of a defendant’s duty depends on how far the law’s protection will be extended.

The determination of the issue of duty and whether it includes the particular risk imposed on the victim ultimately rests upon broad policies which underlie the law.”

Dean Erwin Griswold reminds us that Cardozo emphasized: “The judge . . . is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system. . . . ” Mindful of these precepts we turn to elementary principles set forth in Section 285, Restatement, Torts 2d:

The standard of conduct of a reasonable man may be
(a) established by a legislative enactment or administrative regulation which so provides, or
(b) adopted by the court from a legislative enactment or an administrative regulation which does not so provide, or
(c) established by judicial decision, or
(d) applied to the facts of the case by the trial judge or the jury, if there is no such enactment, regulation, or decision.

First, we note that federal administrative regulations govern the establishment, maintenance and disclosure of personnel records of executive department employees like plaintiff. Pursuant to Executive Order 10561, September 13, 1954, the Civil Service Commission issued regulations, 5 C.F.R. § 293.201 et seq., and § 294.101 et seq., which require that “each agency [of the executive department] shall establish an Official Personnel Folder for each employee. .” And, to “meet the need for quick identification of the many laws, rules, regulations, and instructions pertinent to personnel administration .” the Civil Service Commission also designed an official publication, the Federal Personnel Manual (FPM). Basically, this comprehensive and detailed publication is the personnel “bible” of the Civil Service Commission. The manual explains that the personnel records “in the folder vitally affect the rights and benefits of individual employees as well as the interests of the Government. It is therefore important that the instructions for the maintenance and disposition of folders be carried out with the utmost care and that all necessary precautions be taken to safeguard the folder and its contents.” FPM 293-7, 8 (emphasis supplied). The regulations require the Official Personnel Folder to contain “reports of selection and other personnel actions . . . [as well as] permanent and temporary records affecting the employee’s status and service. ...” 5 C.F.R. § 293.204. Specific examples of the contents, “performance ratings, . admonishments, letters of caution, warning, reprimand, and similar disciplinary action papers,” are set forth in FPM 2-7.

Moreover, 5 C.F.R. § 294.702, mandates what information may be made available to a prospective employer of a Government employee or former Government employee. Definite restrictions as to dissemination of employment information are imposed. A special procedure is mandated for “Disclosure of disciplinary action information.” Since the regulations contemplate the dissemination of information to prospective employers and impose certain safeguards, a risk of injury to an employee’s reputation is contemplated. Thus, it follows that there arises a corresponding duty to use reasonable care in maintaining the accuracy of the records. By finding that the United States does owe plaintiff a duty of reasonable care in the maintenance of his personnel folder, we do not indicate the precise bounds of the government’s duty, nor intimate that the duty is breached merely by permitting inaccurate information to be filed or by failing to file pertinent information. Questions of breach of duty and causation, as well as possible defenses to the action in negligence, will be considered by the district court on remand in the processing of plaintiff’s claim.

Alternatively, we have endeavored to ascertain whether a standard of conduct for the employer can be said to have been established by Pennsylvania judicial decision. While our research has uncovered no precise precedent covering the facts of this ease, we know, at least, that the employer would be required to confront the doctrine that one who gratuitously assumes to render a service obligates himself to proceed with due care. “It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” Cardozo, J., Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276 (1922). “ ‘When an agency of the United States voluntarily undertakes a task, it can be held to have accepted the duty of performing that task with due care.’ Rogers v. United States, 397 F.2d 12, 14 (4th Cir. 1968),” Gibson v. United States, supra, 457 F.2d at 1394.

Having due regard for those principles of tort law followed by the Pennsylvania Supreme Court, we are persuaded that the state courts would recognize a duty of the defendant personal to the plaintiff to use due care in keeping and maintaining employment records, and that for breach of that duty, plaintiff may have a cause of action if he is injured thereby and if the defendant’s breach was the proximate cause of his injury. We do nothing more than continue “in the tradition of spinning out applications of accepted precedents. . . . ” Keeton, Judicial Law Reform —A Perspective in the Performance of Appellate Courts, 44 Texas L.Rev. 1254, 1254-1255 (1966). We find nothing in the recent history of the Pennsylvania Supreme Court to the contrary. “New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none had been recognized before. . . . When it becomes clear that the plaintiff’s interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy.” Although negligence law is generally associated with bodily or physical injuries, there is no conceptual impediment to the recovery' for non-traumatic injury. As a leading case expresses the scope of the law’s protection: “[W]e see no good reason why a wrongful invasion of a legal right, causing an injury to the body or mind . . should not give rise to a right of action. . ’. . ”

In recent years we have witnessed rapid, if not revolutionary, development in judge-made tort law by Pennsylvania courts. Some of the more dramatic changes in the law of torts made by Pennsylvania courts in recent years are set forth in the margin. It will be noted that in each of these developments the Pennsylvania court was expanding and not contracting liability of defendants and increasing recoveries for plaintiffs. Thus there is nothing in principle, nor precedent, nor manifest in the contemporary jurisprudential philosophy of Pennsylvania courts which would tend to foreclose plaintiff’s course of action in this case.

II.

Concluding that plaintiff has set forth a claim for relief recognizable by Pennsylvania courts does not end our inquiry, for we must also determine whether, as a matter of federal law, such a claim is one “arising out of . . . libel [or] slander . . .” within the meaning of § 2680(h). If it does arise out of libel and slander, then the claim is simply not one for which relief may be had against the Government under the Federal Tort Claims Act. Our analysis of this question of interpretation is not without its precedential guideposts.

When Congress passed the Federal Tort Claims Act it used neither intricate nor restrictive language in waiving the Government’s sovereign immunity. United States v. Muniz, 374 U.S. 150, 152, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). At the same time, Congress qualified this broad waiver of immunity in 28 U.S.C. § 2680, “for certain specified torts of federal employees.” Dalehite v. United States, 346 U.S. 15, 17, 73 S.Ct. 956, 958, 97 L.Ed. 1427 (1953). The reason for Congressional passage of the Act has been succinctly stated:

It was the offspring of a feeling that the Government should assume the obligation to pay damages for the misfeasance of employees in carrying out its work. And the private bill device waA notoriously clumsy. Some simplified recovery procedure for the mass of claims was imperative.

Ibid., 346 U.S. at 24-25, 73 S.Ct. at 962.

Mindful that the Act must be interpreted in such a way that its legislative purposes are carried out, that we must look beyond the literal meaning of the language of the complaint, and that we must avoid drawing “distinctions so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation,” Indian Towing Co. v. United States, 350 U.S. 61, 68, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955), we are also acutely aware that “the Government’s liability is no longer restricted to’ circumstances in which government bodies have traditionally been responsible for misconduct of their employees. The Act extends to novel and unprecedented forms of liability as well.” United States v. Muniz, supra, 374 U.S. at 159, 83 S.Ct. at 1856; United States v. Neustadt, 366 U.S. 696, 703, 708, 81 S.Ct. 1294, 6 L.Ed.2d 614; Dalehite v. United States, supra, 346 U.S. at 31, 73 S.Ct. 956, 97 L.Ed. 1427.

These governing principles persuade us'that Congress has relinquished its sovereign immunity under the factual complex of this case. Basically, the Government’s argument before us parallels its contention in the district court: the essence of plaintiff’s complaint is defamation; therefore, such action is barred by the express language of § 2680(h). It seeks to distinguish Gibson v. United States, supra, and places reliance on our earlier cases of Cenna v. United States, 402 F.2d 168 (3d Cir. 1968), and Dupree v. United States, 264 F.2d 140 (3d Cir. 1959), cert. denied, 361 U.S. 823, 80 S.Ct. 69, 4 L.Ed.2d 67 (1959).

In Gibson we emphasized that “Section 2680(h) addresses itself primarily to intentional torts for which Congress was unwilling to assume liability.” 457 F.2d at 1395. We were careful to limit our statement with “primarily,” for it has been held that “misrepresentation, deceit” as embodied in the exclusionary statute, § 2680(h), embraces negligent as well as intentional misrepresentation; United States v. Neustadt, supra, 366 U.S. at 702, 81 S.Ct. 1294, 6 L.Ed.2d 614; Cenna v. United States, supra, 402 F.2d at 171. Neustadt recognized that in using both the terms “misrepresentation” and “deceit,” Congress recognized the basic distinctions between the two torts. Because misrepresentation may have a conceptual basis in negligence, the Court reasoned that “ ‘deceit’ alone would have been sufficient had Congress intended only to except deliberately false representations.” 366 U.S. at 707, 81 S.Ct. at 1301 (footnote omitted).

As the tort of misrepresentation differs conceptually from the tort of deceit, the tort of negligently maintaining the personnel records of an employee differs from the defamatory torts of libel and slander. But here the resemblance between this case and the cases of Neustadt, Cenna and Dupree comes to an end. Here only “libel, slander” are specifically excluded; generic negligent claims are not. In Neustadt and Cenna there was a specific statutory exclusion of “misrepresentation”; here there is no express exclusion of the remedy pursued. In Dupree there was a specific statutory exclusion of “interference with contract rights”; again, here there is no express exclusion of the remedy pursued. To hold that a claim for negligent maintenance of employee records is excluded by the statutory language “libel, slander” would be to read into the Act an exclusion that does not exist by language or by implication. Moreover, to so interpret the statute would require an assumption that Congress was unaware of established tort definitions. This we simply cannot and will not do. We hearken to the teachings of Chief Justice Warren in United States v. Muniz:

The Federal Tort Claims Act provides much-needed relief to those suffering injury from the negligence of government employees. We should not, at the same time that state courts are striving to mitigate the hardships caused by sovereign immunity, narrow the remedies provided by Congress. As we said in Rayonier, Inc. v. United States, . . . [352 U.S. 315 (1957)] at 320, 77 S.Ct. 374, 1 L.Ed.2d 354, “There is no justification for this Court to read exemptions into the Act beyond those provided by Congress. If the Act is to be altered that is a function for the same body that adopted it.”

In excluding certain tort causes of'action from the Federal Tort Claims Act, Congress focused its attention upon the type of governmental activity that might cause harm, not upon the type of harm caused. In excluding actions in libel and slander, Congress, in our view, was not concerned with the difficulties involved in proof of injury to reputation, as the government here urges. Rather the concern was that government officials should not be hampered in their writing and speaking by the possibility that their actions would give rise to government liability.

The plaintiff alleges that two distinct duties were breached by the defendant: (1) the duty to maintain complete and accurate records of plaintiff’s employment history, and (2) the duty to accurately represent plaintiff’s past employment history to prospective employers. The district court., considering these contentions together, held that they amounted to a complaint for damage from publication of false information, and that such a complaint was, in essence, one of libel or slander, which causes of action cannot be brought under the Federal Tort Claims Act.

All that we decide here is that the first duty exists and that it can be enforced through an action based on a general negligence theory. Plaintiff’s complaint states a claim here not only because negligence is conceptually distinct from defamation, but also because the negligence alleged here was distinct from the mere writing or speaking for which Congress did not provide liability. To the extent the complaint before us is based on allegations respecting this second alleged duty, i. e., the duty on the part of the government to disseminate accurate information, such a claim is barred by the libel and slander exception to the Federal Tort Claims Act, as conceded by appellant at oral argument.

The judgment of the district court will be reversed.

      . 28 U.S.C. § 1346:
      (b) [T]he district courts . . . , shall have exclusive jurisdiction, of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

      . The provisions of section 1346(b) of this title shall not apply to —
      (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

      . Additionally, he averred :
      13. As a result of plaintiff’s satisfactory employment history with the defendants, defendants owed plaintiff a duty and obligation to accurately represent plaintiff’s past employment history to prospective employers, which duty and obligation was breached by the negligent, wrongful and tortious acts of the defendants described above. In the breach of that duty, the defendants failed to exercise the degree of due and reasonable care for the rights of plaintiff required under the circumstances. In the status of plaintiff’s employer, defendants had the duty and obligation to maintain complete, accurate and representative records of plaintiff’s performance and employment history, while maintaining said complete and accurate records available to all properly interested persons, which duty and obligation defendants breached, by both acts of commission and omission, thereby failing to exercise that degree of due and reasonable care for the rights of plaintiff required under the circumstances.

      . In federal practice a complaint sets forth “a claim for relief,” F.R.C.P. 8(a); under Pennsylvania practice a complaint states “a cause of action,” Pa.R.Civ.Pro. 1019(a), 12 P.S.Appendix.

      . Prosser’s exposition of the traditional elements of negligence illustrates this:
      1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.
      2. A failure on his part to conform to the standard required. These two elements go to make up what the courts usually have called negligence; but the term quite frequently is applied to the second alone.
      Prosser, Law of Torts, Hornbook Series, § 30 (footnote omitted).

        See also, Restatement, Torts 2d § 282:
      § 282. Negligence Defined
      In the Restatement of this Subject, negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It does not include conduct recklessly disregardful of an interest of others.

      . Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860, 862 (1954), citing Collins v. Dispatch Publishing Co., 152 Pa. 187, 25 A. 546 (1893).

      . Williams v. Kroger Grocery & Baking Co., 133 Pa.Super. 1, 1 A.2d 495, 498 n. 1 (1938), aff’d 337 Pa. 17, 10 A.2d 8 (1940).

      . Solosko v. Paxton, 383 Pa. 419, 119 A.2d 230, 232 (1956). See 2 U.Pitt.L.Rev. 1 (1935). It is not necessary that there be proof of any actual ill will against any particular person. See infra, p. 1274.

      . Neeb v. Hope, 111 Pa. 145, 2 A. 568 (1886); Barr v. Moore, 87 Pa. 385 (1878).

      . It has often been said that malice is one of the elements of liability, and the doctrine is commonly stated in this way: that malice must exist, but that it is presumed by law from the mere speaking of the words; that again you may rebut this presumption of malice by showing that the words were spoken under circumstances which made the communication privileged, • — as, for instance, by a lawyer if the necessary course of his argument, or by a person answering in good faith to inquiries as to the character of a former servant, — and then, it is said, the plaintiff may meet this defence in some cases by showing that the words were spoken with actual malice.

        All this sounds as if at least actual intent to cause the damage complained of, if not malevolence, were at the bottom of this class of wrongs. Yet it is not so. For although the use of the phrase “malice” points as usual to an original moral standard, the rule that it is presumed upon proof of speaking certain words is equivalent to saying that the overt conduct of speaking those words may be actionable whether the consequence of damage to the plaintiff was intended or not. And this falls in with the general theory, because the manifest tendency of slanderous words is to harm the person of whom they are spoken.
      Holmes, The Common Law, Little Brown, 110.

      . Harper and James, The Law of Torts (1956).

      . See, Act of April 11, 1901, P.L. 74, §§ 2, 3, 12 Pa.Stat.Anno. §§ 1582, 1583; Act of August 21, 1953, P.L. 1291, § 1, 12 Pa.Stat. Anno. § 1584a (burden of proof).

      . Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 Pa.Stat.Anno. 31, provides a six-year statute of limitations for all “actions upon the case, other than for slander, and the said actions for account, . . . trespass, debt, detinue and replevin, for goods or cattle. . . . ” Trespass actions for personal injuries “within two years next after the cause of such actions or suit. . ” For defamatory torts, “the said actions upon the case for words, within one year next after the words spoken, and not after.”

      . 1 Harper and James, § 5.1 at 349.

      . This phenomenon is not new to the procedural law of the federal and Pennsylvania courts. Under Pennsylvania practice “[t]he plaintiff may state in his complaint two or more causes of action in trespass. . . . ” Pa.R.Civ.Pro. 1044(a), 12 P. S.Appendix. In federal court a party may state “as many separate claims . . . as he has regardless of consistency. ...” F.R.C.P. 8(e)(2).

      . “We think 28 U.S.C. § 2680(h) is inapplicable. If there is a valid claim here, it is founded on negligence even though assault or false imprisonment may be collaterally invoked. See Panela v. United States, 216 F.2d 622 (2d Cir. 1964).”

      . Prosser, supra, § 53 at 332, quoting Pollock, Law of Torts, 13th Ed.1929, 468.
      The statement that there is or not a duty begs the essential question — whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct. It is therefore not surprising to find that the problem of duty is as broad as the whole law of negligence, and that no universal test for it ever has been formulated.

        Ibid. (Footnote omitted.)

      . Green, Duties, Risks, Causation Doctrines, 41 Texas L.Rev. 42, 45 (1962):
      These policies may be characterized generally as morality, the economic good of the group, practical administration of the law, justice as between the parties and other considerations relative to the environment out of which the case arose.

      . Griswold, “The Judicial Process”; 31 Fed.Bar J. 309, 311 (1973), citing Cardozo, Nature of the Judicial Process, 141 (1921).

      . (b) In addition to the information that may be made available [to the public] under paragraph (a) of this section, the following information may be made available to a prospective employer of a Government employee or former Government employee.
      (1) Tenure of employment;
      (2) Civil service status ;
      (3) Length of service in the agency and the Government; and
      (4) When separated, the date and reason for separation shown on the Notification of Personnel Action, Standard Form 50.
      This section is explained in detail in FPM 294-15.

      . f. An exact copy or an extract of the actual language of a written admonition, written reprimand, notice to suspend, or notice to demote for cause normally should not be released to sources other than authorized Federal officials without the written consent of the person who received the disciplinary action. However, upon a determination of legitimate interest, and upon a determination that the release would not be prohibited by law, the reason shown on the Standard Form 50 (for a suspension or a demotion for cause) or a brief statement of the nature of the offense and the specific disciplinary action imposed (for an admonition or reprimand) may be furnished without the consent, of the employee. An incident which did not lead to separation should be of little interest to an activity outside the Federal service; therefore, the employee’s right to privacy should be the paramount consideration.
      FPM 294-16, 17.

      . Cf., Restatement, Torts 2d, § 323; DeJesus v. Liberty Mutual Insurance Co., 423 Pa. 198, 223 A.2d 849 (1966).

      . It is one of the many states described by Professor Robert E. Keeton which has recently participated in “candid, openly acknowledged change” in the law of torts. 44 Texas L.Rev. at 1254.

      . Prosser, supra, § 1 at 3, 4 (footnote omitted).

      . Johnson v. Sampson, 167 Minn. 203, 208 N.W. 814, 816 (1926).

      . Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973) (doctrine of governmental immunity abolished) ; Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855 (1973) (allocatur granted and appeal pending in Supreme Court) (wife entitled to recover for loss of consortium); Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966) (doctrine of informed consent adopted in malpractice cases); Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972) (sale of new home by builder is accompanied by implied warranty); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971) (doctrine of parental immunity abolished); Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970) (implied warranty of fitness accompanies blood transfusion even though no sale involved); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970) (new action for mishandling of dead body recognized); Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970) (impact rule abolished); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968) (requirement of privity in breach of warranty actions abolished); Reitmeyer v. Sprecher, 431 Pa. 284, 243 A.2d 395 (1968) (responsibility of landlord recognized for injuries to tenant resulting from certain defects in the premises); Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966) (strict liability of vendor of defective product recognized); Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A. 2d 193 (1965) (doctrine of charitable immunity abolished); Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964) (contact theory of conflict of laws adopted); Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960) (right of child to recover for prepartum injuries recognized); Karchner v. Mumie, 398 Pa. 13, 156 A.2d 537 (1959) (right of married woman to sue for criminal conversation recognized); Acquino v. Bulletin Company, 190 Pa.Super. 528, 154 A.2d 422 (1959) (allocatur denied) (right of action for invasion of privacy recognized).

      . “[T]liere is no warrant for assuming that Congress was unaware of established tort definitions when it enacted the Tort Claims Act. ...” United States v. Neustadt, supra, 366 U.S. at 707, 81 S.Ct. at 1301.

      . 374 U.S. at 165-166, 83 S.Ct. at 1859.


author: WEICK, Circuit Judge.

text:
    MONOGRAM MODELS, INC., Plaintiff-Appellee, v. INDUSTRO MOTIVE CORPORATION and Henry G. Michael, Defendants-Appellants.
    No. 73-1454.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 13, 1973.
    Decided March 12, 1974.

      Dee Edwards, Detroit, Mich., on brief, for defendants-appellants.
    Lloyd C. Fell, Bodman, Longley, Bogle, Armstrong & Dahling, Detroit, Mich., Michael G. Berkman, Esther O. Kegan, and Glenn E. Klepae, Kegan, Kegan & Berkman, Chicago, Ill., on brief, for plaintiff-appellee.
    Before WEICK and MILLER, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   WEICK, Circuit Judge.

This is an appeal from a judgment of the District Court finding that appellants infringed appellee’s copyrights on its scale model airplane kits, and awarding damages and injunctive relief. The issue of infringement was determined by a jury.

Monogram Models, Inc. (Monogram) sued Industro Motive Corporation and its president, Henry G. Michael (hereinafter both defendants will be referred to as “Industro”), charging Industro with infringing copyrights held by Monogram on its F-105 Thunderchief kit which was registered with the Copyright Office on July 22, 1968, in Class “A”, Registration No. A8254, and on its Al-E Skyraider kit which was registered on July 19, 1968, in Class “G”, Registration No. Gp 59925.

The District Court granted Monogram’s motion for summary judgment, and Industro appealed to this Court. We held that the District Court was correct in its decision that the plastic scale model airplane kits were the proper subject matter for copyright protection, but reversed for error in entering summary judgment, and we remanded for “trial and resolution of certain factual disputes and questions.” Monogram Models, Inc. v. Industro Motive Corp., 448 F.2d 284 (6th Cir. 1971).

We delineated four questions to be among the issues to be resolved at trial:

1— Did the registration for copyright filed by plaintiff and the copyright certificate cover the actual plastic model airplane and not simply the instruction sheet for assembly and the decorative container packaging the plastic pieces of the model airplane?
2— Was there sufficient and adequate legal notice of copyright on all the subject matter (instruction sheets, containers and plastic models) for which plaintiff seeks copyright protection ?
3— Was there ever a period during which the alleged copyrighted subject matter was manufactured without copyright notice, and if so was there an abandonment to the public domain?
4— If valid, were plaintiff’s copyrights infringed by defendants’ models? ¡

On remand the parties stipulated the facts relating to the first two questions. The District Court held that the copyrights were effective as to the plastic scale model parts, as well as to the container boxes and instruction sheets for each of Monogram’s kits. The District Court further held that the copyrights on the two kits were properly protected by the copyright notices that appeared on the container boxes and instruction sheets of each kit. (As to one kit, the Al-E Skyraider kit, there was also a notice on the inside of one wing part.)

The issue of infringement was submitted to a jury which rendered a verdict that Industro had infringed Monogram’s copyrights on its two scale model airplane kits. The District Court defaulted Industro on the issue of damages because of Industro’s failure to respond to an order of the Court to provide information pertinent to damages requested by Monogram in interrogatories duly submitted to Industro. The District Court then determined damages on the basis of available information, and rendered judgment against Industro in the amount of $45,644.81, which judgment included $25,000 assessed in lieu of actual damages, and $20,644.81 for reasonable attorney’s fees.

The District Court issued a permanent injunction against further infringement and required deliverance by Industro to Monogram of all infringing kits on hand, including molds, dies, and other matter for making infringing copies. Industro appealed, asserting five issues for review by this Court. We affirm.

■ The action arose under the copyright laws of the United States, Title 17 U.S. C. § 1 et seq., and jurisdiction was predicated on Title 28 U.S.C. § 1338.

Monogram and Industro are competitors, engaged in the production, manufacture and sale of scale model airplane kits.

Monogram contended that the copyright on its F-105 Thunderchief kit, registered with the Copyright Office on July 22, 1968 under Class A, was infringed by Industro’s production and sale of Industro’s F-105D Thunderchief kit; and Monogram further contended that the copyright on its Al-E Skyraider kit, registered with the Copyright Office on July 19, 1968 under Class G, was infringed by Industro’s production and sale of Industro’s A-l H Skyraider kit.

It was uncontroverted that Industro had access to, had seen, and had examined Monogram’s two kits before designing and producing its own kits. Indus-tro even admitted to some copying, but contended that the copying was not substantial and that the judgment of infringement cannot be sustained for several reasons.

Industro first asserts that Monogram does not have valid copyrights on its Thunderchief and Skyraider kits. The basis for this assertion is predicated on three arguments: First, that Congress has no power to provide for copyrighting of anything other than “an author’s writing”; Second, that scale model airplane kits cannot be included in any classification of articles which may be protected by copyright under 17 U.S.C. § 1 et seq., and therefore they are not copyrightable; and Third, that Monogram failed to meet the statutory and regulatory requirements for notice of copyrights on either kit.

In the earlier appeal in this action we held that Congress has the power to provide for copyrights on things not strictly termed “author’s writing,” and that the term should be given a broad construction. 448 F.2d 284 at 287. We have found no reason to depart from that holding now.

We further held that “the copyrighta-bility of plastic scale model airplanes” was a legal question, and then we went on to determine that “scale plastic model airplanes are proper subject matter for copyright protection.” 448 F.2d at 285, 288.

In speaking of scale plastic model airplanes this Court was referring to scale model airplane kits as the proper subject for copyright protection. It is the originality in the expression and embodiment of the design and structure of the kit that satisfies the originality requirement of copyrightability as stated in Mazer v. Stein, 347 U.S. 201, 214, 74 S.Ct. 460, 98 L.Ed. 630 (1953). Thus it is neither the assembled plane, as a structure, nor the individual pieces of the unassembled plane, . that are the proper subject for copyright protection. It is the scale model airplane kit, as a kit, that is copyrightable.

As to the question of what is the proper classification of the scale model kits under 17 U.S.C. § 5, we previously noted:

The fact that these classifications are perhaps not accurate descriptions of the subject matter sought to be copyrighted apparently is of no consequence. (448 F.2d at 287)

See also 17 U.S.C. § 5; Day-Brite Lighting, Inc. v. Sta-Brite Fluorescent Mfg. Co., 308 F.2d 377 (5th Cir. 1962).

Industro further contended that monogram’s copyrights on the two kits were invalid because Monogram failed to meet the statutory and regulatory requirements for notice of copyright for both kits. Notice of Monogram’s copyright was placed on the boxes containing the pieces of the plane and on the instruction sheets of the kits for both the Thunderchief and Skyraider kits of Monogram. As to the Skyraider kit, notice was also placed on the inside of a wing part, but after the model plane is assembled this notice is not visible.

The basic requirement as to the placement of a copyright notice is stated in 17 U.S.C. § 10:

§ 10 Publication of work with notice
Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking ad interim protection under section 22 of this title.

As we have just previously noted, the “work” with which this cause is concerned is scale model airplane kits. In order to comply with Section 10 there must be publication with notice of the copyright, and such notice “shall be affixed to each copy thereof published or offered for sale . . . .” For both of Monogram’s kits, the Al-E Skyraider and the F-105 Thunderchief, there was publication of the work with notice of the copyright affixed to the container boxes and the instruction sheets of the kits. In our opinion such publication and notice comply with Section 10.

The form of the copyright notice is delineated in 17 U.S.C. § 19. The copyright notice on the container boxes and instruction sheets for both of Monogram’s models complies with the form required in Section 19. Because the instruction sheets and the container boxes are integral parts of the model airplane kits and the notice on these parts complies with the necessary form for notice of copyright, the notices of copyright on the two kits were adequate. '

The purpose of a copyright notice is to prevent innocent persons who are unaware of the existence of the copyright from incurring the penalties of infringers by making use of the copyrighted work. (Uneeda Doll Co. v. Goldfarb Novelty Co., 373 F.2d 851, 852 (2d Cir. 1967)).

The notices provided on the kits were certainly adequate to give notice to anyone who reasonably used the kits; it is not necessary to place a notice on each of the plastic airplane parts themselves.

In our opinion Monogram has a valid copyright on its Al-E Skyraider and F-105 Thunderchief scale model airplane kits.

Industro has contended that the District Court erred in denying Industro’s motion to dismiss as to the F-105 Thun-derchief, or in the alternative, in refusing to give to the jury Industro’s requested instructions as to this kit.

The basis for the motion to dismiss and the requested instructions was the fact that Monogram’s witness, Roger Harney, who was director of engineering of Monogram’s model shop, testified that Monogram produced a Thunderchief kit as early as 1959. Monogram’s F-105 Thunderchief kit, which is the subject of this litigation, was registered with the Copyright Office in 1968, and the certificate of registration stated the date of publication to be March 2, 1967. The year-date in the notice of copyright printed on the container box and instruction sheet was 1966.

From this testimony concerning a Thunderchief kit produced by Monogram in 1959, and from the evidence that Monogram’s F-105 Thunderchief kit of this action was not registered until 1968, Industro asserts that either the 1959 Thunderchief produced by Monogram was published without notice and the work was abandoned to the public domain and therefore not copyrightable at a later date, or that the F-105 Thun-derchief kit produced in 1967 was only a modification of the 1959 model, and therefore the copyright obtained on the kit published in 1967 was valid only as to the differences between the “1959 Thunderchief kit” and the “1S67 F-105 Thunderchief kit.”

There is no evidence in the record that the Thunderchief kit produced by Monogram in 1959 was published without notice. There is no validity in In-dustro’s claim that the Thunderchief kit was abandoned to the public domain in 1959 and therefore not copyrightable at a later date.

As to Industro’s alternative argument that the copyright on the F-105 Thun-derchief kit published in 1967 was only for the differences between the “1959 Thunderchief kit” and the “1967 Thun-derchief kit,” the District Court was correct in rejecting this assertion.

We have held that the copyright secured by Monogram on the F-105 Thunderchief kit, published in 1967, was a copyright on the kit, and is valid as to all components of the kit, including the plastic component parts.

Title 17 U.S.C. § 3 provides:

The copyright provided by this title shall protect all copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright.

The record indicates that Monogram deposited with the Copyright Office two copies of the F-105 Thunder-chief kit, and also filed with the Copyright Office a certificate of registration for the F-105 Thunderchief kit. Having done this Monogram complied with Section 13 of Title 17 requiring such action before commencement of a suit for infringement. See 17 U.S.C. § 13.

Neither the motion to dismiss nor the requested instructions as to this matter were proper, and the District Court, in denying the motion and refusing the requested instructions, was correct.

Industro next asserts that it was error for the District Court to refuse to require Monogram to specify in which of the classifications of works for registration its scale model airplane kits belong. Industro cites 17 U.S.C. § 5 as the authority for this requirement, which section provides:

§ 5 Classification of works for registration
The application for registration shall specify to which of the following classes the work in which copyright is claimed belongs ....

Several classifications are then listed. Monogram’s F-105 Thunderchief kit was registered in class—

“(a) Books, including composite and cyclopedic works, directories, gazetteers, and other compilations.”

Monogram’s Al-E Skyraider kit was registered in class—

“(g) Works of art; models or designs for works of art.”

Monogram’s applications for registration specified these classes, and the kits were registered in these respective classes. This is all that the first sentence of Section 5 requires. This Section also provides :

[N]or shall any error in classification invalidate or impair the copyright protection secured under this title.

As previously stated herein and as this Court noted in the first appeal,—

The fact that these classifications are perhaps not accurate descriptions of the subject matter sought to be copyrighted apparently is of no consequence. (448 F.2d at 287).

. [6] Industro further claimed error on the part of the District Court in the admission of testimony by Monogram’s witness, Roger Harney, as to similarities between Monogram’s kits and Industro’s kits. Mr. Harney, director of engineering in Monogram’s model shop, was called as a witness and gave testimony as to the creation and production of Monogram’s scale model kits. He also testified over the objections of Industro as to similarities between Monogram’s kits and Industro’s kits. Industro objected to this testimony, contending that it invaded the province of the jury’s function. We disagree. We find no error in permitting such testimony. The witness, by pointing out to the jury the similarities between the copyrighted and the infringing kits, did not usurp the functions of the jury as the jury, itself, could and did make comparisons.

The question of infringement was dependent upon “whether the ordinary reasonable person would fail to differentiate between the two works.” Williams v. Kaag Mfg. Co., 338 F.2d 949 (9th Cir. 1964).

The jury was instructed by the Court as to the proper test to be applied, and was also instructed that if its observations were at variance with the testimony of any witness, the jury was to rely upon its own observations.

Industro’s final claims of error are that the Court should not have granted injunctive relief against it and should not have defaulted Industro on the issue of damages.

The jury having found that Industro infringed Monogram’s copyrights, Industro is subject to the remedy provisions of Copyrights, 17 U.S.C. § 101. Under § 101(a) Industro is subject to an injunction restraining it from further infringement, and under § 101(d) Industro may be required to deliver up all infringing copies and all means for making such infringing copies.

Section 101(b) provides as follows:

If any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable:
(b) . . .To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, . . . or in lieu of actual damages and profits, such damages as to the Court shall appear to be just,

During the trial the District Court defaulted Industro on the issue of damages because of Industro’s failure to comply with the order of the Court to answer certain interrogatories concerning damages. The interrogatories were duly submitted to Industro by Monogram prior to trial.

Industro has asserted that the question of damages is for the jury to decide, Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), and in addition, that Monogram failed in its burden of proof as to damages. Industro argues that it was error for the District Court to take the issue of damages from the jury, and for the Court to assess damages without Monogram’s having proved actual damages.

Monogram filed its complaint in this action on December 11, 1968; Industro filed its answer on February 3, 1969. On April 2, 1969 Monogram filed its first set of interrogatories to Industro. Included in that set of interrogatories were six interrogatories inquiring as to the total number of Thunderchief and Skyraider kits manufactured and sold by Industro, and the amount in dollars from sales of each of Industro’s kits.

Industro’s answers to this first set of interrogatories were silent as to these six interrogatories. Industro neither objected to, nor answered, any of these six interrogatories. During the trial the Court ordered Industro to answer within five days the six then-unanswered interrogatories. (The five days included a weekend and Christmas Day.) When Industro failed to answer the interrogatories within five days the Court defaulted Industro on the issue of damages and ordered that two of the six interrogatories (relating to the total number of kits for each model manufactured or sold) be answered within approximately two months. Industro answered two of the interrogatories relating to the total number of kits sold for both the Skyraider and Thunderchief kits; but it did not answer the interrogatories inquiring as to the amount in dollars received from the sale of each kit.

On the basis of the information given, the Court assessed damages in lieu of actual damages, and also allowed to Monogram reasonable attorney’s fees.

By its failure to answer the interrogatories submitted to it and its failure to comply with the Court’s order, Industro was subject to sanctions under Rule 37(d) or 37(b) of the Federal Rules of Civil Procedure, Even if there were any question as to the reasonableness of applying sanctions for Industro’s failure to answer the Court’s order within five days, there can be no question as to In-dustro’s liability under Rule 37(d) for its failure to answer the interrogatories.

Fed.R.Civ.P. 37(d) provides:

If a party . . . fails . to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule

Rule 37(d) clearly places on the party receiving interrogatories the burden either to answer them or to state his objections. He may not remain silent and then assert that he has no duty to answer until ordered by the Court to do so. If a party feels that interrogatories are objectionable he must either state his objections thereto or seek a protective order under Rule 26(c). See Notes of Advisory Committee on Rules, Rule 37, 28 U.S.C.A. (1973 Supp.) pp. 43, 44.

The District Court, upon Industro’s failure to answer the interrogatories, and upon Industro’s failure to comply with the Court’s order to answer the interrogatories, “may make such orders in regard to the failure as are just,” and among other orders possible under paragraph (C) of Rule 37(b)(2) the Court may render “a judgment by default against the disobedient party.” Fed.R.Civ.P., 37(b)(2).

Industro cannot prevent Monogram from ascertaining the facts with regard to damages by remaining silent and failing to answer interrogatories duly submitted to it, and then assert that it has been denied due process when sanctions for such refusal to answer are imposed as outlined in the Federal Rules of Civil Procedure. The District Court did not err in defaulting Industro on the issue of damages.

In assessing damages the District Court awarded $25,000, in lieu of actual damages and profits. This is consistent with Section 101(b) of the Copyright Law, and is within the Court’s discretion. See 17 U.S.C. § 101(b). F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 73 S.Ct. 222, 97 L.Ed. 276 (1952); Thomas Wilson & Co. v. Irving J. Dorfman Co., 433 F.2d 409, 414 (2d Cir. 1970).

Similarly, the District Court’s award of $20,644.81 as a reasonable attorney’s fee, is consistent with Section 116 of the Copyright Law, and is within the Court’s discretion. See 17 U.S.C. § 116.

Having considered all of the issues presented in this appeal, we find no error in the proceedings below requiring a different disposition of this cause. We affirm the District Court’s judgment.

Monogram has applied to us for allowance of additional attorney’s fees and expenses in the amount of $13,389.-91. Monogram was allowed $20,644.81 for attorney’s fees and expenses in the District Court. We do not regard the appeal as frivolous. The application for fees contains only the dates and amounts of the billings of the attorneys to their client; we were not furnished any itemization of services rendered in this Court, nor any information as to the reasonable value thereof. We have examined appellee’s 29-page brief and we have heard the arguments of counsel. The issues in this appeal were not complex and we must assume that counsel possessed some familiarity with the law because of the trial, briefs and arguments in the District Court. In view of the large allowance in the District Court we are not inclined to make an additional allowance for services to sustain the judgment of that Court. The application for fees and expenses is denied.

Affirmed.


author: PER CURIAM.

text:
    Joan Evans WILBURN, Plaintiff-Appellant, v. PEPSI-COLA BOTTLING COMPANY OF ST. LOUIS, Defendant-Appellee.
    No. 73-1744.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 14, 1974.
    Decided March 11, 1974.

      Roger L. Scherck, St. Louis, Mo., for plaintiff-appellant.
    David O. Danis, St. Louis, Mo., for defendant-appellee.
    Before HEANEY and BRIGHT, Circuit Judges, and DENNEY, District Judge.

       ROBERT V. DENNEY, District Judge, District of Nebraska, sitting by designation.

   PER CURIAM.

Plaintiff-Joan Evans Wilburn brought this diversity action in the United States District Court for the Eastern District of Missouri, alleging that she sustained personal injuries in an accident in Belleville, Illinois, as a result of the negligence of the Pepsi-Cola Bottling Company of St. Louis, Missouri. Plaintiff filed her suit on July 6, 1973, more than two years after the date of the accident, May 18, 1971, and defendant moved to dismiss on the ground that the action was barred by the Illinois two-year statute of limitations which applies to this cause of action under the Missouri borrowing statute. Relying solely upon the above facts recited in the pleadings, the trial court granted the motion for dismissal, and held that the action was barred by the Illinois statute of limitations.

Thereafter plaintiff-Wilburn in a motion entitled “Motion for Amendment of Judgment” sought relief from the summary dismissal of the action through an amendment of the judgment and she requested leave to amend the complaint. The district court denied any relief, and Ms. Wilburn brings this appeal. For reasons stated below, we reverse and remand the action for further proceedings.

Although the inclusion of dates in the complaint showing the action to be untimely renders the complaint subject to dismissal upon motion, see Kincheloe v. Farmer, 214 F.2d 604 (7th Cir. 1954), cert. denied, 348 U.S. 920, 75 S.Ct. 306, 99 L.Ed. 721 (1955); see generally 5 Wright and Miller, Federal Practice and Procedure §§ 1226, 1357 (1969), as we have already mentioned, plaintiff sought relief from the court’s ruling by submitting a proposed amended complaint. The proposed amended complaint alleged that because of statements and conduct of defendant’s agents in conducting settlement negotiations, “plaintiff and plaintiff’s attorney [were led] down the primrose path until the statute of limitations had run.” This amended complaint, fairly construed, may be taken to allege affirmatiyely that defendant is precluded by waiver or estoppel from asserting a statute of limitations defense. As such, under Illinois law, which both parties agree applies to the statute of limitations defense, a defendant may be estopped from asserting a statute of limitations defense in a negligence action by reason of misleading conduct by agents of the defendant during settlement negotiations. Burgo v. Illinois Farmers Insurance Co., 8 Ill.App.3d 259, 290 N.E.2d 371 (1972).

Fed.R.Civ.P. 15(a), provides as to amending pleadings “by leave of court” that “leave shall be freely given when justice so requires.” The provisions of Rule 15(a) are invoked by a proper motion under either Rule 59(e), motion to alter or amend a judgment, or Rule 60(b), motion to relieve a party from a final judgment or order for mistake, inadvertence, surprise or excusable neglect and for other reasons, accompanied by a proposed amended complaint. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see 3 Moore’s Federal Practice ¶ 15.10 (1972); 6 Wright and Miller, Federal Practice and Procedure § 1489 (1971). Although appellant’s motion for relief under Rule 59 sought “new findings and conclusions and * * * a new judgment,” as though the case had been tried on the merits, the motion together with the prayer that the complaint be amended should be construed broadly as a motion to vacate the judgment in order to permit the filing of the amended complaint.

In commenting on the application of these rules in somewhat analogous circumstances, the Supreme Court in Foman v. Davis, supra, stated:

Rule 15(a) declares that leave, to amend “shall be freely given when justice so requires” this mandate is to be heeded. See generally, 3 Moore, Federal Practice (2d ed. 1948), ¶¶ 15.-08, 15.10. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be' “freely given.” Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules. [371 U.S. at 182, 83 S.Ct. at 230.]

The Court thus held that the district court as well as the court of appeals erred in denying the motion of the plaintiff to vacate a judgment and file an amended complaint stating an alternative theory for recovery in a civil action. See also United Steelworkers of America v. Mesker Brothers Industries, Inc., 457 F.2d 91, 93 (8th Cir. 1972).

The proposed amended pleading which was verified, the exhibits attached to the complaint, and the affidavits filed in support of the motion to amend the judgment and to amend pleadings raised a good faith contention by appellant-Wilburn that defendant should be estopped to assert a statute of limitations defense. She claims that defendant’s insurance company acting on behalf of defendant by its actions, statements, and conduct, recognized the validity of plaintiff’s claim and led her attorney to believe that it would voluntarily settle without the necessity of filing suit. Appellee filed affidavits controverting the claims and statements attached to plaintiff’s motion. The district court in denying appellant’s motion under Rule 59 and to amend the complaint, gave no reasons for its action. While the substantive issue of the adequacy of the defense of estoppel is not before us on this appeal and we intimate no decision on the merits, we believe that in light of the Supreme Court’s holding in Foman, supra, and the provisions of Fed.R.Civ.P. 15(a), the district court was required, under the showing made by plaintiff, to set aside the judgment and permit the filing of an amended complaint.

We reverse and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

      . Ill.Rev.Stats., Ch. 83, § 15 (1966), states in part that “[ajctions for damages for an injury to the person * * * shall be commenced within two years next after the cause of action accrued.”

      . V.A.M.S. § 516.190 (Supp.1973), reads:
      Whenever a r-ause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.