author: GIBBONS, Circuit Judge.

text:
    Milton MAZER, Administrator of the Estate of Israel Abrams, assignee of Hattie Lipshutz, Executrix of the Estate of Benjamin Lipshutz, Deceased, Appellant, v. SECURITY INSURANCE GROUP and the Medical Protective Company of Fort Wayne, Indiana, Appellees.
    No. 74-1070.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 4, 1974.
    Submitted en banc Jan. 8, 1975.
    Decided Jan. 23, 1975.

      Marshall A. Bernstein, Robert M. Bernstein, Bernstein, Bernstein & Harrison, Philadelphia, Pa., for appellant.
    James J. McCabe, Henry T. Reath, Jane D. Elliott, Duane, Morris & Heckscher, Philadelphia, Pa., for appellee Security Ins. Group.
    Barry F. Greenberg, Perry S. Bechtle, Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for appellee, The Medical Protective Co.
    Before SEITZ, Chief Judge, and GIBBONS and GARTH, Circuit Judges.
    Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

The plaintiff Mazer, Administrator of the Estate of Israel Abrams, in this diversity contract action, is the assignee of Hattie Lipshutz, Executrix of the Estate of Benjamin Lipshutz, who was the insured on two policies of liability insurance issued by the defendants Security Insurance Group and The Medical Protective Company of Fort Wayne, Indiana (hereinafter collectively the insurers). In December 1957 Israel Abrams was admitted to the Albert Einstein Medical Center in Philadelphia for elective surgery during the course of which a transfusion of incompatible blood was administered which resulted in kidney failure. Abrams died as a result of kidney failure in January 1958. Mazer procured from Albert Einstein Medical Center a settlement of $60,000, and on December 31, 1958 executed a release in its favor of any claim for bodily injury or death of Abrams. On December 30, 1958 Mazer instituted suit against Dr. Benjamin Lip-shutz, the surgeon who performed the elective surgery. The insurance carriers, whose indemnity undertakings totaled $50,000, undertook his defense, and counsel selected by them entered an appearance on January 28, 1959. On January 30, 1959 that attorney filed an answer which admitted that Dr. Lipshutz performed the surgery but denied the allegations of the complaint that those assisting in the operation were agents, servants or employees of his. The answer alleged:

“On the contrary, it is averred that those assisting in the operation were agents, servants or employees of Albert Einstein Medical Center, Southern Division.”

Those assisting in the operation included Dr. Peter Chodoff, anesthesiologist and Albert Kohn, the chief blood bank technician employed by the hospital who had handled the selection of the blood delivered to the operating room. On March 9, 1960 counsel employed by the insurance carriers successfully moved for leave to join Dr. Chodoff as a third-party defendant. Dr. Chodoff was not served with process in this action. On November 21, 1961 counsel employed by the insurance carriers successfully moved for leave to join Albert Kohn as a third-party defendant. Neither at the time of filing the answer nor within the time permitted by Rule 19(a) of the Local Rules of the Eastern District of Pennsylvania was a motion made on Dr. Lip-shutz’s behalf to join the hospital as a third-party defendant.

Mazer had, in December 1959, instituted a separate action against Dr. Chodoff. In that action counsel for Dr. Chodoff filed a motion to join Dr. Lipshutz as a third-party defendant. This motion was granted on March 30, 1960. On July 11, 1960 counsel for Dr. Chodoff filed a motion to join the hospital as a third-party defendant and this motion was granted by an order dated August 17, 1960. By an order dated March 30, 1960 both of Mazer’s suits were consolidated for trial.

On November 29, 1961 counsel on behalf of Dr. Lipshutz made a motion to join the hospital as a third-party defendant which, on January 3, 1962, was denied as untimely under Local Rule 19(a).

The consolidated cases were tried commencing on January 8, 1962, the court having on January 5, 1962 severed the third-party action of Lipshutz v. Kohn. The trial resulted in verdicts on interrogatories which found no negligence on the part of Dr. Chodoff, no negligence on the part of Dr. Lipshutz, but negligence on the part of Kohn, the employee of the hospital. Interrogatory No. 3 was framed: “Was there negligence on the part of any employee of [the hospital] which was a contributing cause of the death of Israel Abrams”, and it was answered “Yes.” Mazer v. Lipshutz, 327 F.2d 42, 46 (3d Cir. 1963) (Mazer I). The jury assessed damages at $89,318 but no money judgment was entered since the settlement and release precluded any direct action against Kohn or the hospital. Judgments were entered by the district court in favor of Lipshutz and Chodoff, and these were appealed. This court affirmed the judgment in favor of Dr. Chodoff, but reversed the judgment in favor of Dr. Lipshutz on the ground that the district court’s charge erroneously took from the jury consideration of the vicarious liability of Dr. Lip-shutz as “captain of the ship” in the operating room for the negligence of Kohn. We ordered a new trial. 327 F.2d at 55.

On the retrial the amount of damages was established at $89,318 by the prior verdict. The third-party action by Dr. Lipshutz against Kohn was tried together with the issue of Dr. Lipshutz’s vicarious liability. The jury found that under the Pennsylvania “captain of the ship” doctrine, Dr. Lipshutz was vicariously liable for Kohn’s negligence. There was no dispute that Kohn was an employee of the hospital since his status had been established by verdict in the first trial. Judgment was entered for Mazer against Dr. Lipshutz for $89,318 and for Dr. Lip-shutz against Kohn, the active wrongdoer, for the same amount.

The result of the jury findings was that Kohn’s negligence was attributable vicariously both to his employer, the hospital, and to Dr. Lipshutz. On April 30, 1965 the district court granted the motion of counsel for the insurance carriers, made on the authority of 12 P.S. § 2085, to amend both judgments by reducing them by $60,000 each to $29,318 respectively. The reduction was equal to the amount paid by the hospital in settlement.

Once again Mazer appealed, contending that the district court erred in reducing the judgment by the $60,000 paid by the hospital. Once again we reversed, holding that 12 P.S. § 2085 was inapplicable to payments made by a joint tortfeasor in the absence of a judicial determination as to the alleged joint tortfeasor status as such. Mazer v. Lipshutz, 360 F.2d 275 (3d Cir. 1966), cert. denied, 385 U.S. 833, 87 S.Ct. 72, 17 L.Ed.2d 68 (1966) (Mazer II). We relied on what we thought to be the proper reading of Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956). The effect of Mazer II was to deprive Dr. Lipshutz’s Estate, as well as his liability insurance carriers, of a $60,000 reduction in- judgment liability. We remanded with directions to reinstate the full judgment. The insurance carriers paid $50,000 plus interest and costs, leaving an unpaid balance on the judgment of $39,318 for which Dr. Lipshutz was personally liable. He having died, his estate assigned to Mazer its claim against the insurance carriers, and Mazer started the instant action.

In the final pretrial order in this case Mazer submitted as legal issues:

“1. Negligence of the defendants.
5. Defendants breached their contract to adequately represent Lip-shutz.”

The case was tried without a jury. Mazer contended, and continues to contend, that the basis for his claim against the carriers is the undisputed failure of the attorney employed by them to move to join the hospital as a third-party defendant so as to protect Dr. Lipshutz’s claim against it under 12 P.S. § 2085. His case consisted primarily of a nineteen paragraph stipulation of facts in the final pretrial order, certain requests for admissions, and documentary evidence, including the insurance policies on which the suit is based. The stipulations and documents established the facts outlined above. Mazer offered no expert testimony. The district court denied defendants’ motion for a directed verdict at the close of plaintiff’s case.

The defendants then offered expert testimony described in an offer of proof:

“I propose to prove by this witness that it was not negligence for the then counsel on behalf of Dr. Lipschutz [sjc] from 1958 to 1960 to fail to join the hospital as an additional defendant.” (Tr. at 35).

The expert witness was asked a hypothetical question which, with the usual objections, rulings, and qualifications, may be summarized as asking whether between 1958 and 1960 there was a failure to follow the standards a lawyer should follow by not joining the hospital as a third-party defendant. He answered that there was no such failure, and elaborated:

“I believe that it is often improper to join third-party defendants. I think that the burden, as far as a lawyer is concerned, should be against joinder always and to join only when you are convinced the joinder will help your client. You cannot make that judgment until you have enough facts at your disposal to make it clear to you that you should join a third-party defendant.” (Tr. at 47).

The district court accepted the expert’s opinion in answer to the hypothetical question, which as it interpreted it was that the failure to join the hospital “did not constitute a lack of the attainment or skills commonly practiced and exercised by attorneys of ordinary skill and capacity” but was an exercise of judgment or a tactical choice. 368 F.Supp. at 422. We affirm, but for reasons different from those relied upon by the district court.

The district court, in considering the defendants’ liability to Mazer, which in turn depended upon their duty toward Dr. Lipshutz, properly felt itself bound by our decision in Mazer II. That case held that Dr. Lipshutz lost the benefit of 12 P.S. § 2085 because the hospital was not joined as a party, even though in Mazer I it had been adjudicated that Kohn was the primary tortfeasor and an employee of the hospital. If the holding as to Dr. Lipshutz’s rights under 12 P.S. § 2085 was incorrect as a matter of Pennsylvania law, there is simply no basis for asserting any breach of the defendants’ duty to Dr. Lipshutz. It has not been suggested that a liability insurance carrier in Pennsylvania bears the full risk of any error of law by an appellate court which results in an insured’s being liable in excess of policy limits. We conclude that Mazer II misapplied Davis v. Miller, supra, and that there was no breach of any duty owed to Dr. Lipshutz.

Since Mazer II we have had occasion to revisit the Davis v. Miller problem in Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974). There we held that the joint tortfeasor status of a settling party could, for purposes of 12 P.S. § 2085, be established not only by a judgment but also by a provision in the joint tortfeasor release in which the injured party acknowledges that in any lawsuit the verdict will be reduced to the extent agreed upon. The failure of the United States to make a pro forma motion for joinder was held to be immaterial. The holding in Griffin makes clear that the issue is not whether the settling party was technically joined in the lawsuit. Rather it is whether by some reliable means there was a determination, either judicially or by the plaintiff’s concession, that the settling party was a joint tortfeasor. The object of the Davis v. Miller rule is, as we said in Griffin v. United States, supra, to avoid having a sole tortfeasor benefit from a third-party payment not made in satisfaction of a tort liability. Here it is clear that the hospital’s payment was made because Kohn was its employee. Moreover, there was an adjudication both of Kohn’s negligence and of his employee status. Thus the Pennsylvania policy against reducing an injured party’s recovery by the amount received from a volunteer has not been violated. The fact that the payment was made by or on behalf of a possibly immune charitable organization is irrelevant. Brown v. City of Pittsburgh, 409 Pa. 357, 362-364, 186 A.2d 399, 402-403 (1962). Thus Lipshutz should have been afforded the benefit of 12 P.S. § 2085.

We recognize that this holding implicitly suggests that Mazer has already been substantially overpaid since on account of a verdict establishing damages of $89,318 he has received $60,000 in settlement from the hospital and $50,-000 from the defendants. The Mazer II case is, however, a matter beyond collateral attack. But the fact that our erroneous prior judgment is beyond collateral attack does not require that we compound our prior misapplication of Pennsylvania law by requiring payment of an additional $39,318.

The judgment of the district court will be affirmed.

      . During the pendency óf the litigation Dr. Lipshutz died and his estate was substituted. In the interest of simplicity we have usually referred to Dr. Lipshutz rather than his estate.

      . The jury also found in favor of Lipshutz’s Estate in its action over against Kohn.

      . “A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides, but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greatér than the consideration paid.”

      . The district court opinion focused upon an insurance carrier’s duty to defend and assumed that this duty was measured by reference to the level of skills commonly practiced by attorneys in the community. In view of the basis for our affirmance we need not consider whether, as the appellant contends, the district court took too narrow a view of the several duties arising from a liability insurance carrier’s contractual obligations. But see Gray v. Nationwide Mutual Ins. Co., 422 Pa. 500, 223 A.2d 8 (1966); Gedeon v. State Farm Mutual Automobile Ins. Co., 410 Pa. 55, 188 A.2d 320 (1963); Cowden v. Aetna Casualty & Surety Co., 389 Pa. 459, 134 A.2d 223 (1957).


source: Caselaw Access Project

author: IRVING R. KAUFMAN, Chief Judge:

license: Public Domain

text:
    Jacob SUISSA, Plaintiff-Appellant, v. AMERICAN EXPORT LINES, INC. (f/k/a American Export Isbrandtsen Lines, Inc.), Defendant-Appellee.
    No. 346, Docket 74-1601.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 4, 1974.
    Decided Dec. 20, 1974.

      Richard P. Lerner (Lorenz, Finn, Giar-dino & Lambos, New York City, C. P. Lambos, New York City, of counsel), for defendant-appellee American Export Lines, Inc.
    Max Cohen, New York City (Klein, Cohen & Schwartzenberg, New York City, on the brief), for plaintiff-appellant Suis-sa.
    Before KAUFMAN, Chief Judge, and ANDERSON and OAKES, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

Whether a maritime worker who has followed the grievance procedures provided by a collective bargaining agreement should, after a disposition of his grievance, be permitted to seek judicial recovery of his claim for wages under 46 U.S.C. § 596 (1970) is the novel question which we are called upon by this case to decide. Jacob Suissa appeals from summary judgment by the United States District Court for the Southern District of New York, dismissing his complaint for overtime and statutory penalties allegedly owed him by American Export Lines, Inc. [AEL]. We affirm.

Jacob Suissa, a member of the National Maritime Union of America, AFL-CIO [NMU], served as an electrician aboard the S.S. Exford during a foreign trip which began October 3, 1972. The vessel was owned by American Export Lines, Inc., a party to a collective bargaining agreement under which NMU was to act as the representative for the company’s unlicensed personnel. Approximately one week after the ship had sailed, Chief Engineer Eisner informed Suissa that he would not authorize requested overtime for “cargo watches.” These were not hours during which Suis-sa had actually worked. Rather, he felt that he was entitled to automatic authorization and payment under Article V, § 25(d) of the AEL-NMU bargaining agreement merely for being aboard while cargo was being worked during overtime hours. Suissa’s affidavit submitted to the district court discloses that he had been paid overtime on a prior voyage aboard the Exford for all such hours. While at sea, Suissa also complained that work which should have been performed by electricians had been usurped by the chief, and first and second assistant engineers. He claimed his pro rata share under the contract for that work. While still aboard, he submitted both grievances to the Union, and when discharged at the conclusion of the voyage on February 13, 1973, he confirmed his intention of resorting to grievance procedures by immediately proceeding to his local union representative, NMU Patrolman LaForgia.

Suissa suggested to LaForgia that AEL owed him payments for 36IV2 hours of alleged cargo time, 90 hours as his share of work which had been usurped, and 2 additional hours which he claimed actually to have worked. As provided by the contract, LaForgia presented Suissa’s grievance to AEL’s local representative, Payroll Master Nehrbauer. The two men agreed that same day to settle the claim by a payment for 50 hours, although the Union representative reserved the right to refer the settlement to the NMU National Office for approval. The following day Mel Bare-sic, the NMU Vice President In Charge of Contract Enforcement, informed Captain Shrivers, AEL’s Manager of Operations, that the offer was not acceptable to the Union. After further discussion, the grievance was settled by AEL’s agreement to pay penalty time for 86 hours, and Suissa was notified that a check in the proper amount was available at the AEL Payroll Office.

Although the agreement permitted NMU to submit Suissa’s grievance to arbitration, the Union apparently found the settlement acceptable, and chose not to do so. On March 15, 1973, Suissa wrote his Union, stating:

I want the record to show that all remedies have .been exhausted under the Collective Bargaining Agreement (NMU) as to arbitration or any other out-of-court disposition of my claims. I am presently entitled to commence an independent lawsuit against American Export Isbrandtsen Lines, Inc.

One week later he filed an action in the New York County Civil Court to recover $3,384.82, the full amount to which he felt he was entitled for the 453.5 hours earlier requested. The complaint also sought to collect the statutory penalty provided by 46 U.S.C. § 596 (1970) for delayed payment of wages.

Soon thereafter, AEL removed the action to the United States District Court for the Southern District of New York, contending that the complaint— properly construed — stated a claim under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1970). American Export subsequently moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief could be granted. The district court, after considering the affidavit of Albert G. Fialcowitz, Director of Labor Relations for AEL, several annexed exhibits, and the affidavit of Suissa, treated the motion as one for summary judgment and granted it.

Judge Ward found that, although in the first instance Suissa might have sought either a judicial remedy or the relief provided by the collective bargaining agreement’s grievance procedure, once he had elected to utilize the grievance procedures, he was precluded from litigating his alleged contractual rights in a court of law. The only judicial relief available against AEL in such circumstances, the judge decided, was pursuant to § 301 of the Labor Management Relations Act. But an individual employee’s action under that section required allegations in the complaint sufficient to support a claim that the Union had failed in its duty of full and fair representation. Because Suissa’s complaint and affidavit failed to make this showing, Judge Ward dismissed the action without prejudice to the filing of an amended complaint.

THE CLAIM FOR WAGES

Suissa’s argument that he has a right to an independent judicial determination of the merits of his contractual wage claim, after having pursued his complaint through the grievance machinery established by . the collective bargaining agreement, is dependent upon the interpretation to be given U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 91 S.Ct. 409, 27 L.Ed.2d 456 (1971). The Court there read the provisions of 46 U.S.C. § 596 (1970), concerning the amount and schedule for payment of seamen’s wages, and penalties for employer noncompliance, to imply a judicial remedy which an aggrieved maritime worker might in the first instance pursue in lieu of the grievance procedures favored by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1970). But we do not understand Arguelles to be applicable to cases where the seaman has initially resorted to his contractually established remedy.

In allowing an individual to bring his claim for wages directly before a judicial tribunal, Arguelles established an exception to the otherwise rigid principle enunciated in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), that contract grievance procedures must be exhausted before any redress may be sought in court. The reason for the unique departure from the established rule lay not in mistrust of the collective bargaining agent’s ability fairly and reliably to dispose of wage claims, but rather in the policy which for nearly two hundred years § 596. and its predecessors, see Act of July 20, 1790, § 6, 1 Stat. 133, had been designed to effectuate. “[T]he evident purpose of the section,” the Court had long ago held, is “to secure prompt payment of seamen’s wages . . . and thus to protect them from the harsh consequences of arbitrary and unscrupulous action of their employers, to which, as a class, they are peculiarly exposed.” Collie v. Fergusson, 281 U.S. 52, 55, 50 S.Ct. 189, 191, 74 L.Ed. 696 (1930). It was the Court’s objective to give full measure to this established purpose, see Arguelles, 400 U.S. at 356, 365, 91 S.Ct. 409. Thus the Court resolved the “literal conflict” between § 596 and § 301 by allowing a seaman the option of choosing either route to enforce his claim. Id. at 356, 91 S.Ct. 409.

Quite different considerations prevail, however, once the remedy provided by the collective bargaining agreement has been pursued. Ordinarily, in such circumstances, settlement of a grievance by the union and the employer is binding upon the individual employee, absent evidence that the union has acted in bad faith in carrying out its duty of full and fair representation. Vaca v. Sipes, 386 U.S. 171, 190-192, 196, 87 S.Ct. 903, 17 L.Ed.2d 842 (White, J.) and 203-205, 87 S.Ct. 903 (Black, J., dissenting) (1967); Union News Co. v. Hildreth, 295 F.2d 658 (6th Cir. 1961). Nor do we think that a different rule should obtain for wage claims envisioned by § 596. For it is no longer realistic to suppose that a judicial determination is necessary for the most expeditious resolution of maritime wage claims — the very principle upon which Arguelles was based— once such grievances have been processed to settlement through the contractually established machinery.

Moreover, we are mindful that the interests which ordinarily make desirable the finality of settlements through the grievance process, apply with equal force in the field of admiralty. Employers would have little interest in agreeing to the incorporation of provisions for grievance settlement in the collective bargaining agreement, if pursuit of those processes would only be an unnecessary prelude to defense of a later court action. Perhaps even more important are the union’s interests in affording quick and inexpensive protection to those it represents, and in participating in interpretations of the collective bargaining agreement to which it is a party. Maddox, supra, 379 U.S. at 656, 85 S.Ct. 614. The claims made by Suissa offer a concrete illustration of how significant those concerns can be. For with the exception of two hours which he claimed actually to have worked, his right to all the overtime which this suit seeks to collect is based upon two contractual provisions whose construction in light of the facts before us would affect all. the Exford electricians represented by NMU. To allow every disappointed employee to seek a de novo judicial determination of those provisions, without a showing of bad faith on the part of the Union, would greatly diminish NMU’s position as exclusive bargaining representative. Employers would have little reason to rely upon terms of settlement proposed by the Union if the finality of any arrangement were subject only to the whims of affected employees. And the employees themselves, their bargaining agent unable to command employer respect, would be deprived of a channel of redress which Arguelles recognized at least as the equal of the courts in securing the prompt payment of wages. Cf. Cox, Rights Under a Labor Agreement, 69 Harv.L.Rev. 601, 657 (1956).

It is true that the decision in Arguelles necessarily undercuts the union’s importance to an extent, by providing an option of initial resort to the courts. But that is little justification for penalizing those organizations whose representation has been effective enough to be preferred in the first instance to judicial action. To hold that settlement via the method envisioned by the collective bargaining agreement is not only optional, but unenforceable even when invoked, would go far toward stripping the union of its role in administering, as well as negotiating, contractual terms. Consequently we hold that once a seaman has pursued his wage claim to settlement through the established grievance procedures, he is no longer free to seek the judicial recovery contemplated by § 596.

PENALTY UNDER § 596

In addition to 453V2 hours of unpaid wages, Suissa claims a right to recover the statutory penalty for nonpayment provided by 46 U.S.C. § 596 (1970). That section provides that seamen — like Suissa — on vessels making foreign voyages shall be paid within four days of their discharge, or within 24 hours after the cargo has been discharged, whichever occurs first. An owner thereafter refusing payment without sufficient cause is liable for a sum equal to two days’ pay for each day during which payment is delayed, “which sum shall be recoverable as wages in any claim made before the court . . . .” Whether a claim for the statutory penalty must be presented along with the wage claim when a seaman elects the contractual grievance procedures, is a question which we need not decide in this case. For we find that in any event AEL’s refusal to pay the full amount sought by Suissa was not without sufficient cause.

It is undisputed that on February 13, 1973, the day Suissa was discharged and paid for his work aboard the Exford, an adjustment was made of his grievance by the local representatives of the Union and AEL. Thus even before any penalty wages could have begun to accrue, American Export had offered to pay Suissa an amount which NMU, as his representative, found acceptable in satisfaction of his claim. Although Patrolman LaForgia thereafter referred the settlement to the National Office, which demanded a larger sum, there was no allegation that AEL did not immediately agree to payment for 86 hours, and reimbursement was promptly made to Suissa at the Payroll Office. We conclude that the company’s willingness, within the statutory period and at all times thereafter, to pay Suissa the amount to which the NMU felt he was properly entitled under the contract, particularly in the absence of facts sufficient to support a claim of bad faith on the part of the Union, absolves it from liability under the penalty clause in § 596.

      . Article V, § 25(d), as it appears in the copy of the Agreement effective through June 15, 1972, provides:

        An Electrician is required to be aboard the vessel while it is in port and working cargo whether or not he is actually working, [sic] he shall receive overtime for all hours that he is required to be aboard other than his regular hours. [Emphasis added.]
      As reproduced in the Agreement effective from June 16, 1972 through June 15, 1975, however, that subsection states:

        When an Electrician is required to be aboard the vessel while it is in port and working cargo whether or not he is actually working, he shall receive overtime for all hours that he is required to be aboard other than his regular hours. [Emphasis added.]
      Copies of both agreements were submitted by AEL to the district court.

      . Article 1, § 36 of the Collective Bargaining Agreement provided:
      (a) . . It is agreed that work traditionally assigned and/or performed by Unlicensed Personnel shall not be performed by or assigned to any other persons provided Unlicensed Personnel are available and prepared to perform such work Whenever such work is performed by persons other than Unlicensed Personnel . such work shall be paid for at the applicable premium rate and such payment shall be divided among the Unlicensed Personnel ordinarily required to perform such work.

      . Article I, § 4(b):
      2. If the grievance cannot be resolved under the provisions of paragraph (a) the decision of the Master shall govern . until the vessel arrives at a port where the Company maintains an operating office and the Union maintains an office. The dispute shall then be referred to a representative of the Union who, if he believes it has merit, shall attempt to resolve it with the local representative of the Company. The Company reserves the right, where necessary, to refer a dispute to its head office for final settlement. Similarly, the Union reserves the right, where necessary, to refer a dispute to its National Office for disposition with the head office of the Company. It is understood, however, that this right will be used sparingly and that both Parties will make every effort to settle disputes in the port where they arise.

      . The payment was to be computed at the “penalty” rate of $2.74 per hour, rather than the overtime rate of $7.43 per hour. Suissa’s claim for 36IV2 hours of “cargo watch” time was apparently foreclosed by the interpretation of Article V, § 25(d) of the bargaining agreement rendered in an arbitration proceeding held August 26, 1971 before Theodore Kheel, the arbitrator provided for by the NMU-AEL contract. The Union contended that “at all times when cargo was being worked, the past practice has been to have an electrician standing by . . .,” and that the subsection in question should consequently be read to incorporate such a requirement. The arbitrator rejected the claim, holding that “in the absence of more compelling evidence of a clear past practice to have electricians stand by at all times, ... I can [not] rule that the contract requires continuous standing by while winches are being worked.”

      . See note 2 supra.

      . Article I, § 4 provided:
      (c) Arbitration Procedure. If any dispute or grievance arising under the terms of this Agreement is not adjusted ... in the manner hereinbefore provided, same may be submitted, by the Union or the Company . . within thirty (30) days from the time grievance has been finally denied to a Board of Arbitration

      . It is true that in personam actions are not generally removable, since the “saving to suitors” clause of 28 U.S.C. § 1333(1) (1970) has been read to preserve the jury rights of suitors who wish to proceed in civil actions in state courts. Note, Removal to Admiralty, 69 Yale L.J. 442 (1960). As our analysis of the merits of this case indicates, however, Suis-sa’s right to bring a contractual action for wages was foreclosed by his earlier decision to follow the collective bargaining agreement’s grievance procedures. Thus any claim which he had to judicial enforcement of his contractual rights derived from § 301. See, e. g., Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). Such a claim states an independent ground of federal jurisdiction, and is consequently removable. 1A, Moore, Federal Practice fl 0.167 [3. —3] at 378-79 (1974). That Suissa may also have had a right to pursue an otherwise non-removable claim for penalty wages under 46 U.S.C. § 596 — a question which we do not decide — does not bar a federal court from entertaining the entire controversy, since 28 U.S.C. § 1441(c) specifically provides for removal of cases where removable and nonre-movable claims are joined in one action. Cf. U.S. Industries v. Gregg, 348 F.Supp. 1004, 1014-1016 (D.Del.1972) (interpreting 15 U.S.C. § 77v(a)); Emery v. Chicago, B. & Q. R.R., 119 F.Supp. 654 (S.D.Iowa 1954) (interpreting 28 U.S.C. § 1445(a)). See also Cunningham v. Bethlehem Steel Co., 231 F.Supp. 934 (S.D.N.Y.1964) (removal of admiralty claims), criticized on other grounds in 1A Moore, supra, fl 0.163 [4. — 7] at p. 287 n.15.

      . Judge Ward also found that Suissa was precluded from claiming a statutory penalty under § 596 by his initial election to follow grievance procedures.

      . The other striking exception to the exhaustion requirement, until recently, was the grievance and arbitration procedure set forth in the Railway Labor Act, 44 Stat. 579, as amended, 48 Stat. 1191, 80 Stat. 208, 45 U.S.C. § 153 First (i), Second (1970). Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941); Walker v. Southern R. Co., 385 U.S. 196, 87 S.Ct. 365, 17 L.Ed.2d 294 (1966). Moore was overruled, however, in Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972).

      . According to the interpretation argued for here by Suissa, those provisions, see p. [1344] and note 1 supra, would have allowed recovery by all the Exford electricians for full cargo working time, as well as for pro rata shares of the work usurped by the chief, and first and second engineers.

      . Of course, as the district court properly indicated, allegations sufficient to ground a claim that NMU breached its duty of full and fair representation would enable Suissa to proceed against AEL under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1970). The only allegation made below was the Union’s failure to take Suissa's grievance to arbitration. Particularly where the NMU exercised its right to refer the dispute to the National Office, however, a procedure which the agreement explicitly provided should be used sparingly, see note 2 supra, such a bare charge is insufficient to establish a breach of the duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).

      . We see no merit to Suissa’s other claim, that the summary judgment was based on hearsay testimony in the affidavit of Albert Fialcowitz. There was ample evidence in Suissa’s affidavit, the undisputed facts in the affidavit of Fialcowitz, and the exhibits below to support Judge Ward’s decision that Suissa was not entitled to relief under § 301.

      . See U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, 374-375, 91 S.Ct. 409, 27 L.Ed.2d 456 (1971) (White, J., dissenting).


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. James J. PRICE, Appellant.
    No. 74-1538.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 2, 1974.
    Decided Dec. 23, 1974.
    Morris D. Rosen and Klyde Robinson, Charleston, S.. C. (Robert N. Rosen, Charleston, S. C., on brief), for appellant.
    Thomas P. Simpson and Lionel S. Lof-ton, Asst. U. S. Attys. (John K. Grisso, U. S. Atty., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
   PER CURIAM:

Appellant was convicted of conspiracy to extort and extortion, both involving interstate commerce, in violation of the Hobbs Act, 18 U.S.C. § 1951 (1970). He asserts that the jury was improperly instructed on the definition of “extortion.” Rejecting this and other assignments of error, we affirm.

Price at all relevant times was Chairman of the Charleston (South Carolina) County Council. In late November 1973 the Royal Scotsman Inn Corporation was nearing completion of construction of a motel in Charleston County. Utilization of module construction, however, caused certain building code deficiencies, resulting in refusal of a certificate of final inspection and prompt issuance of an occupancy permit.

Harris, a Scotsman executive, sought immediately to resolve the occupancy permit problem. A series of meetings and conversations during the next week among Harris, Price, and Balliet, the co-conspirator, culminated in the payment by Scotsman (through Harris) of $12,000 in cash to Price in exchange for the latter’s assurance that the motel would obtain its occupancy permit.

Price asserts that since he, as County Council Chairman, had no de jure power to issue the occupancy permit the money was not obtained “under color of official right.” After instructing the jury that “under color of official right” was a “wrongful taking by a public officer of money not due him, or his office,” the trial court elaborated:

[I]t is not necessary [for conviction] that you conclude that the defendant could in fact assure the issuance of an occupancy permit .... The issue . is not whether the defendant had the power to withhold the permit, but whether it was reasonable for [Scotsman to believe] that he . had such power.

Transcript at 850 — 851.

We hold the foregoing a correct instruction under § 1951’s definition of extortion, United States v. Emalfarb, 484 F.2d 787, 789 (7th Cir.), cert. denied, 414 U.S. 1064, 94 S,Ct. 571, 38 L.Ed.2d 469 (1973), and that it fully applied here, where the victim’s belief was predicated upon the appellant’s assertion of de facto power over the issuance of the permit. Price told Harris before the money was exchanged that (1) there were several county employees “hanging by a thread” whose jobs would be terminated if they didn’t obey appellant; (2) if Harris had asked appellant for help earlier there would have been no problems; (3) if Scotsman were to build another motel in the area, Harris should come to appellant to get “everything taken care of.”

We reject Price’s contention that guilt may be predicated only upon a further finding that he perverted the legal or statutory power (de jure) of his public office. It is enough that he appeared to act under § 1951(b)(2)’s “color of official right.”

Further, we view the conviction as supportable alternatively under the § 1951(b)(2) definition of extortion relating to obtaining money with consent “induced by . fear,” on which the jury was also instructed. There is ample evidence from which the jury could have concluded that Scotsman’s fear of financial injury was both reasonable and substantial. Having been refused an occupancy permit, Scotsman faced monetary loss from both the possibility of substantial reconstruction and the concomitant delay in commencing operations. That the appellant’s corrupt offer played upon this apprehension was certainly inferable, if not obvious.

Accordingly, the judgment is Affirmed.

      . Defined in 18 U.S.C. § 1951(b)(2):
      The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

      . What was thought by appellant to be a clandestine transaction in a warehouse ended with an on-the-scene arrest by the FBI, who had been contacted by Harris.

      . Fear of economic loss is included within the Hobbs Act. E. g., United States v. Tropiano, 418 F.2d 1069, 1083 (2d Cir. 1969), cert. denied, 397 U.S. 1021, 90 S.Ct. 1262, 25 L.Ed.2d 530 (1970); United States v. Pranno, 385 F.2d 387 (7th Cir. 1967), cert. denied, 390 U.S. 944, 88 S.Ct. 1028, 19 L.Ed.2d 1132 (1968).


author: CHRISTENSEN, Senior District Judge.

text:
    Will L. CLEGG et al., Plaintiffs-Appellees, v. Leo H. CONK, Defendant-Appellant.
    No. 74-1059.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 11, 1974.
    Decided Dec. 5, 1974.

      Byron L. Stubbs, Salt Lake City, Utah, for defendant-appellant.
    Lowell N. Hawkes, Salt Lake City, Utah (Harold G. Christensen of Worsley, Snow & Christensen, Salt Lake City, Utah, with him on the brief), for plaintiff s-appellees.
    Before LEWIS, Chief Judge, HOLLOWAY, Circuit Judge, and CHRISTENSEN, Senior District Judge.

       Of the District of Utah, sitting by designation.

   CHRISTENSEN, Senior District Judge.

This appeal from judgment on the verdict in a securities case raises questions concerning the applicable statute of limitations and the elements of scienter and reliance in so-called 10b — 5 actions.

Plaintiffs’ complaint was “based upon violation of laws of the United States and the State of Utah including the proscriptions of Section 17(a) of the Securities Act of 1933 (15 U.S.C. Sec. 77q), Section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. Sec. 78j), Rule 10b — 5 promulgated pursuant thereto by the United States Securities and Exchange Commission (17 C.F.R. Sec. 240 10b — 5) . . . and the Utah Uniform Securities Act (Utah Code Ann. § 61 — 1—1 et seq. (1953)).”

There is little point in reciting the other allegations set out in plaintiffs’ pleadings since they were generally denied by the appellant Conk and the partial transcript of the evidence before us is insufficient to determine with precision any particular allegations that were supported by substantial evidence on the whole record. But from the partial transcript of the testimony of one of the plaintiffs, the exhibits .before us, and record statements of counsel during the trial indicating agreement as to certain circumstances, at least these structural facts emerge in view of inferences that may be drawn favorably to the verdict:

Defendant-appellant Conk in August, 1968, was granted a distributorship for car wash units by Hanna Enterprises, a nonincorporated out-of-state business. In the late fall of that year Conk contacted John E. Olson, one of the plaintiff-appellees, and later there was a meeting, or meetings among appellant and appellees as part of a larger group of prospective investors, when an investment proposal was explained by Conk and his associate, Stewart, now deceased. Conk made untrue statements or omitted to state facts necessary to render what he said not misleading, and these statements and omissions were material to the investment judgment of the appel-lees who relied upon them in making investments in the car washing business being thereby promoted by appellant, to their several damages in the amounts found by the jury.

Appellant Conk’s answer did not plead the statute of limitations nor any other affirmative defense. It was agreed, however, at the final pre-trial conference, that limitations would be one of the issues to be tried. For some reason the pre-trial order included in the record does not so provide, but the transcript of discussions before the trial judge assumes such an agreement and understanding, as do we. The pre-trial order as filed recites that “[t]here are no contested issues of law” and that “[tjhere are no uncontroverted facts in addition to those established by the pleadings and discovery.”

Far from this being so as to the law, however, substantial trial time was consumed by arguments between the parties, which have to a degree been projected here, whether the issue of the statute of limitations had been waived, whether a motion to dismiss on the ground that the claims were barred was timely, whether the statute in the absence of pleading could be considered at all, whether the defendant had been guilty of sharp practice by delaying the pressing of that defense until the opening of the trial, whether on the assumption that a two-year state statute was applicable plaintiffs could successfully claim that they did not discover the alleged fraud until within two years of the commencement of their action in view of allegations in their complaints that they had discovered the fraud one month earlier, and whether the discovery of some elements of fraud that early was effective to start the running of the statute if the greater part of its circumstances and seriousness was not discovered until aft-erwards.

These problems may be shortly disposed of for the purposes of this case by our rejecting, as did the trial court ultimately, appellant’s basic contention that since plaintiffs had claimed under both the 1933 and the 1934 Acts,' and also had asserted a claim in reliance upon the Utah Blue Sky Law, one of the shorter limitation periods should apply, rather than the three-year period provided by state statutes for fraud cases which this court has repeatedly held applicable to implied rights of action under the Securities Exchange Act of 1934.

The only serious problem in this case arises from appellant’s contention that the trial court erroneously eliminated from plaintiffs’ 10b — 5 action any requirements for scienter and reliance, and submitted the case to the jury on the basis of a restrictive view of the elements referred to in Stevens v. Vowell, 343 F.2d 374 (10th Cir. 1965).

The question of whether some species of scienter should have been recognized in the instructions as an element of appellant’s 10b-5 action was squarely presented to the trial court in pre-sub-mission conferences. The trial court in-dieated that it might give a modified negligence instruction in this area, and indeed did so as to the other defendant Hanna which was claimed to have been involved through publications furnished to the appellant Conk. But as to the latter, apparently its reading of Stevens v. Vowell, 343 F.2d 374 (10th Cir. 1965), supra, led it to apply rather literally the language that in a 10b — 5 action “[i]t is only necessary to prove one of the prohibited actions such as the material misstatement of fact or the omission to state a material fact”, with the result that the subject of scienter was ignored except as it might be gathered from the language of Rule 10b — 5 itself. It is to be noted, however, that the element of “reliance” was covered beyond the otherwise restrictive interpretation of the language of Stevens and in harmony with Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972).

Other courts have interpreted the language of Stevens as meaning that there is no requirement of scienter in this circuit more burdensome than a showing of negligence. This court has rejected such an interpretation expressly, which rejection undoubtedly survives any contrary inference that might be drawn from dicta in our latest opinion.

The emphasis in Stevens v. Vowell of the necessity of a flexible interpretation of the security laws to cover all conduct, schemes and contrivances within its scope independently of the rigid requirements of common law fraud has been often quoted. We reaffirm that essential principle as it constitutes the hallmark, genius and strength of modern securities legislation. Yet the facts and setting of Stevens v. Vowell do not permit the extrapolation of the view for which it sometimes is cited. The case involved an attack by appellant upon the jurisdiction of the trial court “for the reason that the evidence wholly fails to establish any of the elements required to make out a case under 15 U.S.C.A. § 78j and Rule X-10B-5.” It is rather clear from the opinion that the defendant knowingly made untrue statements and omissions of material facts which by their very nature and context were misleading. There are two quotations which frequently have been applied out of context to indicate that this circuit in 10b — 5 cases recognizes neither any species of scienter nor reliance as essential elements. We have already quoted one. The other is as follows:

“It will be observed that neither the statute nor the rule requires that the manipulative or deceptive device or contrivance be a part of or actually transmitted in the mails or instrumentality of interstate commerce. All that is required is that such a device or contrivance be used or employed in connection with the use of the instruments of interstate commerce or the mails.”

This court concluded “that there is abundant evidence to establish each and every element required under the statute and rule. The trial court therefore had jurisdiction over the subject matter.”

The same year Judge Doyle, author of Trussell v. United Underwriters, Ltd., 228 F.Supp. 757 (D.Colo.1964), still the leading district court case on the subject, had before him again in Parker v. Baltimore Paint And Chemical Corp., 244 F.Supp. 267 (D.Colo.1965), the question of whether scienter and reliance were essential elements. It was stated:

“We concluded in Trussed that these elements are essential in a 10b — 5 case. Our reasons are extensively articulated in that decision, and although the case at bar involves an allegedly defrauded seller rather than a purchaser, the rule applies nevertheless. Plaintiff argues that the decision of this Circuit in Stevens v. Vowell (10 Cir. 1965) 343 F.2d 374, dispenses with the mentioned requirements. However, Stevens does not specifically consider the question and the dicta which is the source of the plaintiff’s contention does not in our opinion require adoption of a ruling which is contrary to that expressed in Trussed.”

In Gilbert v. Nixon, 429 F.2d 348 (10th Cir. 1970), supra, this court agreed with the district court that the fractional interests in suit were securities within the meanings of 15 U.S.C. § 77b(l) of the 1933 Act, and 15 U.S.C. § 78c(a)(10) of the 1934 Act, and K.S.A. § 17-1252(j). The appellants in their brief had considered liability under Rule 10b — 5 to be most appropriate but they also pursued remedies under, and the trial court appeared to have based its decision upon, claimed violations of Section 12(2) of the Securities Act of 1933, 15 U.S.C. § 777(2), comparable to the Kansas statute. This court considered whether the trial court in denying recovery by appellants applied to the evidence the correct legal principles. It recognized that purchasers of securities have an implied action for damages under 10b — 5 in addition to a remedy under Section 12(2) and that the two provisions, as interpreted, are not altogether consistent with each other, citing Trussell. The court then said:

“Had appellants invoked Section 12(2) alone our task in formulating the proper legal standards for recovery would have been simplified. We note, however, that a private action under Rule 10b — 5 originated in the need for a sellers remedy where none had otherwise been provided. Once a remedy was implied for the seller, it was extended to include the buyer even though relief was already available to him under Section 12(2). Since in this case recovery is sought under both provisions, we resolve any conflict between them in favor of Section 12(2), where the statutory remedy is explicit, [footnotes omitted except to note that in footnote 14 the court says ‘[i]n reaching this conclusion we do not mean to say that buyers never have an action under 10b — 5 independent of Section 12(2).’].”

Later in the opinion it was commented:

“While the purchaser has been required to prove his reliance in an action under 10b-5 by some courts, [citing among others Trussell v. United Underwriters, Ltd., 228 F.Supp. at 773, supra] we do not place the burden on appellants in this case as we have decided that in such circumstances the rules of Section 12(2) should prevail. We held in Woodward v. Wright, supra, 266 F.2d [108] at 116, that ‘to say that purchaser reliance is a prerequisite to seller liability is to import something into the statute which is not there.’ We do not think the result should be otherwise because appellants sought recovery under 10b — 5 as well as Section 12(2).
“One is not to be held liable, however, because of his misleading misrepresentation or omission of material fact, the truth of the matter being unknown to the purchaser, if the party responsible for the misrepresentation or omission sustains the burden of proving that he did not know, and in the exercise of reasonable care could not have known that it was a misrepresentation or omission. Once again, as in the case of reliance, the seller’s burden of proving lack of scienter, made necessary by the specific provisions of Section 12(2), see Woodward v. Wright, supra, 266 F.2d at 116; Wil-ko v. Swan, 346 U.S. 427, 431, 74 S.Ct. 182, 98 L.Ed. 168 (1953), should not be affected in this case by different requirements in this regard under 10b— 5.”

In Mitchell v. Texas Gulf Sulphur Company, 446 F.2d 90 (10th Cir. 1971), supra, this court again referred to Stevens v. Vowell, stating:

“In civil actions instituted on the basis of 10b — 5 violations, the keynote of which is fraud, the full panoply of common law fraud elements — misrepresentation or nondisclosure, materiality, scienter, intent to defraud, reliance and causation — have crept in and played varying roles of significance. However, a number of these elements have diminished in importance in private actions, and we have stated in Stevens v. Vowell, 343 F.2d 374, 379 (10th Cir. 1965), that ‘[i]t is not necessary to allege or prove common law fraud to make out a case under the statute and rule. It is only necessary to prove one of the prohibited actions such as the material misstatement of fact or the omission to state a material fact.’ Notwithstanding, appellants urge that appellees have failed to establish the presence of most of the common law fraud ingredients, i. e., misrepresentation or nondisclosure of material facts, scienter, intent to defraud, reliance, and some semblance of privity. A full measure of our attention will be devoted to each of these constituent parts.”

After disposing of the claim of immateriality by holding that “[t]he trial court had little difficulty finding from the testimony of Fogarty and other corporate officers that the April 12 statement was made in a manner reasonably calculated to influence the investing public”, this court proceeded to examine the problem of scienter. Judge Hill, the author of Stevens v. Vowell, stated for the court:

“But while some degree of scienter is required, it does not equate with the intent to defraud required in a common law fraud action. Globus v. Law Research Service, Inc., 418 F.2d 1276 (2d Cir. 1969); Heit v. Weitzen, supra [402 F.2d 909]; Astor v. Texas Gulf Sulphur Company, 306 F.Supp. 1333 (S.D.N.Y.1969). Contrariwise, in the Eighth Circuit, City National Bank of Fort Smith, Ark. v. Vanderboom, 422 F.2d 221 (8th Cir. 1970), and the Ninth Circuit, Ellis v. Carter, 291 F.2d 270 (9th Cir. 1961), the rule is that scienter is not required to maintain a private 10b-5 damage action. We have dealt with the issue under significantly different circumstances in Stevens v. Vo-well, 343 F.2d 374 (10th Cir. 1965). But in Gilbert v. Nixon, 429 F.2d 348, 357 (10th Cir. 1970), we considered the identical issue in a ease involving Section 12(2) and Rule 10b-5. The rule there articulated is applicable here. ‘One is not to be held liable because of his misleading misrepresentation or omission of material fact, the truth of the matter being unknown to the purchaser, if the party responsible for the misrepresentation or omission sustains the burden of proving that he did not know, and in the exercise of reasonable care could not have known that it was a misrepresentation or omission.’
“Two times during his opinion the trial judge recited: ‘[T]he record here discloses that the press release issued by defendants was misleading, intentionally deceptive, inaccurate and knowingly deficient in material facts.’ Confronted with the abundance of evidence in the record, we cannot conclude that TGS sustained its burden of proving that it did not know of the misrepresentation, nor was it demonstrated that with due diligence TGS could not have known of the faultiness of the statement.”

In Reyos v. United States, 431 F.2d 1337 (10th Cir. 1970), the trial court was reversed by this court inter alia because of the lack of proof of “reliance”:

“In Stevens v. Vowell, 343 F.2d 374 (10th Cir.), we considered a private action under Regulation 10b-5. The trial court had made findings that critical facts had been concealed from the plaintiff investor and misrepresentations were made to him. The court also specifically found that the plaintiff had there relied upon all the representations made to him by the defendants. These findings were supported by the record. There was no issue on appeal as to reliance, and little as to the fact of misrepresentations. We there stated that it was not necessary to prove common law fraud, but necessary to prove ‘one of the prohibited actions.’ This referred to one of the (a), (b) or (c) subsections of the rule. In the cited case the (b) subsection was relied upon and with the reliance established the case was proven. The opinion does not hold that reliance is not required, as the plaintiff urges. It is a basic element of a cause of this nature, and was there shown.”

In reversing in part and affirming in part the last mentioned decision sub nom., Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972), supra, Mr. Justice Blackmun stated for the court:

“Under the circumstances of this case, involving primarily a failure to disclose, positive proof of reliance is not a prerequisite to recovery. All that is necessary is that the facts withheld be material in the sense that a reasonable investor might have considered them important in the making of this decision . . . This obligation to disclose and this withholding of a material fact establish the requisite element of causation in fact.” (Citing Chasins v. Smith, Barney & Co., 438 F.2d 1162, at 1172.)

Richardson v. MacArthur, 451 F.2d 35 (10th Cir. 1971), supra, also cites Stevens v. Vowell, supra, for the proposition that Rule 10b — 5 is a remedial measure to be broadly construed. It was pointed out, however, that there was far more than simply a dispute over the performance of a contract. Various aspects of the evidence lighted up a scheme by MacArthur to convert Richardson’s stock, and his corresponding lack of intent to follow through on the contract with Richardson. The case did not focus on the problem of scienter.

Allen v. H. K. Porter Co., 452 F.2d 675 (10th Cir. 1971), was an action by a security brokerage firm and others seeking damages under the Securities Exchange Act for alleged misrepresentations and non-disclosure in connection with defendant’s offer to purchase the corporation’s debentures. It was held by this court that the reference to foreclosure in the defendant’s offer to purchase the debentures and the failure of defendant to advise prospective sellers of the money necessary to rehabilitate the corporation was not such a misrepresentation and non-disclosure as to amount to a violation of the Securities Exchange Act. The opinion states:

“We have also recognized that neither the Rule nor the Securities Exchange Act sets forth the elements necessary to establish civil liability under Rule 10b — 5. Reyos v. United States, 431 F.2d 1337, 1347 (10th Cir. 1970) . Nor has this court attempted to specify what forms of deception are prohibited; rather we have held that ‘all fraudulent schemes in connection with the purchase and sale of securities are prohibited.’ Richardson v. MacArthur, 451 F.2d 35 (10th Cir. 1971) . Furthermore, ‘[i]t is not necessary to allege or prove common law fraud to make out a case under the statute and rule.’ Mitchell v. Texas Gulf Sulphur Company, 446 F.2d 90, 97 (10th Cir. 1971), citing Stevens v. Vo-well, 343 F.2d 374, 379 (10th Cir. 1965).”

Thus, Allen v. H. K. Porter Co., tends to put Stevens v. Vowell in context by demonstrating that the broad language of the latter does not mean necessarily that literal fulfillment of the three elements obviates the necessity of some proof of causation as well as some species of scienter. It is somewhat ironical that this basic and sound recognition is somewhat blurred by Affiliated Ute Citizens v. United States, supra, in its rejection of the requirement of proof of causation beyond proof of materiality in the case of omissions to state facts essential to render what was stated not misleading. But the implications of the Supreme Court’s opinion was that the element of causation in some form remained and that some degree of scienter is requisite.

Hadsell v. Hoover, 484 F.2d 123 (10th Cir. 1973), involved an action by a buyer of unregistered securities who claimed violation of anti-fraud provisions of the securities regulations against a seller who agreed to repurchase his stock. Reference in the opinion to Stevens v. Vowell did not focus on any question of scienter, it being concluded “that the facts and circumstances developed at trial were clearly sufficient to indicate a scheme to defraud within the meaning of Section 10(b) of the Securities and Exchange Act of 1934.”

Financial Indus. Fund, Inc. v. McDonnell Douglas Corp., 474 F.2d 514 (10th Cir.), cert. denied, 414 U.S. 874, 94 S.Ct. 155, 38 L.Ed.2d 114 (1973), was an action by a mutual fund against a corporation for alleged violation of the rule in question. This court held that the evidence was insufficient to establish that the fund exercised due care in making the stock purchase in the open market, that the corporation delayed the issuance of the special earnings statement beyond the point when sufficient information was available for accurate release or when the information could have been collected by the exercise of due diligence, and that the corporation owed a duty to disclose in the circumstances or that the fund relied to its detriment on the corporation’s inaction. The opinion does not seem intended to mark any new approach to the problem under discusSion, but the following interpretive comments are pertinent:

“There has been much written on the matter of scienter in actions under Rule 10b-5, and especially in the departure from the initial pure fraud concepts. The movement toward modified scienter requirements and the use of negligence language has been fully described. It would serve no useful purpose to analyze it further here. The change has taken place in many jurisdictions. See the decisions of this court hereinafter considered; also, Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir.); City National Bank of Fort Smith, Ark. v. Vanderboom, 422 F.2d 221 (8th Cir.); Ellis v. Carter, 291 F.2d 270 (9th Cir.).
“We have considered the arguments that to move the standards entirely into the negligence field may likewise move the statutory basis for Rule 10b — 5 out from under section 10b, which has no negligence language.
“This court in Gilbert v. Nixon, 429 F.2d 348 (10th Cir.), considered an appeal which raised claims based on Rule 10b — 5 and also on section 12(2) [15 U.S.C. § 777(2)]. The court there referred to the statutory standards in section 12(2) and held a similar test to be applied in the combined claim. In Mitchell v. Texas Gulf Sulphur Co., 446 F.2d 90 (10th Cir.), a Rule 10b-5 case, we referred to the holding in Gilbert v. Nixon, and there said that the defendant, Texas Gulf Sulphur, did not sustain its burden of proving that it did not know the statement in issue was false, ‘. . . nor was it demonstrated that with due diligence TGS could not have known of the faultiness of the statement.’ See also Allen v. H. K. Porter Co., 452 F.2d 675 (10th Cir.). The Mitchell case was decided after the case before us now.
“To prevail the plaintiff in this silence case had the burden of proof to establish that it exercised due care in making its stock purchase, that the defendant failed to issue the special earnings statement when sufficient information was available for an accurate release (or could have been collected by the exercise of due diligence), and to show there existed a duty owed by the defendant to the plaintiff to so disclose as to do otherwise would be a violation of Rule 10b— 5, and upon inaction under such showing plaintiff relied to its detriment. The defendant as a separate defense could show either good faith or the exercise of good business judgment in its acts or inaction.
“Mention should be made of our decision in Mitchell v. Texas Gulf Sul-phur Co., 446 F.2d 90 (10th Cir.), where there was no direct holding as to the standard of care required of the defendant as to the contents of a statement actually issued because the statement there concerned was obviously and intentionally misleading, as the trial court and this court indicated. So we did not there expressly require that the defendant meet a burden of showing due care although such would have been a defense. The burden of showing lack of due care in such circumstances is part of the plaintiff’s case.”

This court recognized the significance of scienter of some kind in 10b — 5 cases in its opinion in Andrews v. Blue, 489 F.2d 367 (10th Cir. 1973), but determined it to be present to the requisite extent.

“We must also reject the defendants’ argument that the Rule 10b-5 claim fails for lack of proof of scien-ter. Certainly intent in the odious or malicious sense is not required. The requisite knowledge of falsity is adequately evidenced. See Mitchell v. Texas Gulf Sulphur Co., 446 F.2d 90 (10th Cir. 1971).”

In the case of In Re Four Seasons Securities Laws Litigation, 370 F.Supp. 219 (W.D.Okl.1974), it was observed:

“This court concludes that the law of the transferor forum does not require proof of facts amounting to common law fraud before a plaintiff can recover under one or more of the Federal statutes upon which the first six claims in the complaint in the instant case are based, and under one or more of the Ohio statutes upon which the Seventh, Eighth, Ninth and Tenth claims are based. James v. Gerber Products Company, 483 F.2d 944, 946 (6 Cir. 1973). Tenth Circuit law is similar. Stevens v. Vowell, 343 F.2d 374, 379 (10 Cir. 1965); Mitchell v. Texas Gulf Sulphur Company, 446 F.2d 90, 97 (10 Cir. 1971).”

The latest decision touching upon the point is Kerbs v. Fall River Industries, Inc., 502 F.2d 731 (10th Cir. 1974), supra. With reference to the statement that the “. . . securities laws should be construed not technically and restrictively, but flexibly in order to effectuate their remedial purpose”, a footnote adds:

“6. It will also be observed that, while the Courts of Appeals are divided on the question of the necessity of proving scienter to establish liability under Rule 10b — 5, the pronouncements of this circuit on the matter have been clear and consistent. As stated by Judge Hill in Stevens v. Vowell, supra, 343 F.2d at 379: ‘. . . It is not necessary to allege or prove common law fraud to make out a case under the statute and rule. It is only necessary to prove one of the prohibited actions such as the material misstatement of fact or the omission to state a material fact.’ ”

Despite varying emphases, the strong strand of consistency and reason running through the decisions of this court on the subject under discussion beginning with Stevens v. Vowell is readily discernible when viewed as a whole; statements considered separately or out of context not infrequently have been subject to misinterpretation. For this reason we have been persuaded thus to review the decisions in this circuit insofar as they bear directly upon the necessity of scienter and reliance in Section 10(b) actions. From their common principles and applications may be deduced the propositions that there is required something additional by way of scienter or conscious fault than mere negligence, and something more by way of reliance or causation in fact than some abstract wrong expending its force entirely upon itself.

In determining how much more, or the existence of other required elements in view of the circumstances of particular cases, there must be kept constantly in mind the teaching of Stevens v. Vowell that the federal securities acts are not frozen into the old common law patterns; and that they must be interpreted flexibly and progressively, not technically nor grudgingly, to fairly effectuate their remedial purpose. Thus this court has consistently resisted and surmounted common law obstacles against relief from schemes, artifices, and courses of conduct where conscious fault designed to cause damages to either buyers or sellers of securities has been perceivable. “Nor has this court attempted to specify what forms of deception are prohibited; rather we have held that ‘all fraudulent schemes in connection with the purchase and sale of securities are prohibited.’ ” Allen v. Porter, 452 F.2d 675 (10th Cir. 1971), supra. But this court has repeatedly declined to extend the acts to cases of simple negligence not involving some fraudulent purpose or species of scienter within their scope and purpose. This same restrained flexibility may explain the rejection of briefer but more rigid periods of limitations provided by the 1933 Act and various state Blue Sky acts, for the longer and more flexible periods ordinarily embraced in state laws for cases of fraud. The latter are more adaptable to the remedial purposes of implied rights of action under Section 10(b), despite the seemingly paradoxically adoption in special circumstances of the burden of proof provisions of the 1933 Act in furtherance of the remedial purposes of the 1934 Act.

If the trial court had charged the jury in effect that untrue statements or omissions resulting from mere negligence without any manner of scienter, conscious fault, intention or recklessness, would have justified a recovery against Conk, this would have been fundamentally or palpably wrong and subject to correction here despite question as to the sufficiency of exceptions below.

But for the very reason that the language of the Act tells us that such a charge would have represented a fundamental departure from its purpose and meaning, we believe that the use in the instructions of the language of the rule implied that simple negligence would not be enough. To us there is an undoubtable implication of fault beyond mere carelessness in “engaging in any device, scheme, or artifice to defraud or the making of untrue statements of material fact or omitting to state any material fact necessary in order to make statements made in the light of the circumstances not misleading.” Laymen, in the context of the other instructions, would be likely to sense this, even though there is ground for dispute among lawyers that “untrue” statements and the “misleading” of others by omissions to state material facts could result simply from innocent though negligent oversight.

There is nothing in the record to suggest that the jury was misled in this case in any fundamental sense. On the contrary, even the partial record placed before us suggests that the nature of the conduct on which appellant’s liability must have been predicated, as distinguished from the type of conduct on the basis of which his codefendant was acquitted, was necessarily pursued knowingly and intentionally and with purpose to mislead. A party who claims plain error within the reach of Rule 51, Fed.R. Civ.P., cf. Rule 52, Fed.R.Cr.P., has the heavy burden of demonstrating fundamental injustice. This the plaintiff has not done.

We do not mean to suggest generally that submission of the issues in the statutory language is enough when a proper request to charge is submitted to the trial court or timely exception is taken to the instructions as given or to a failure to charge on the subject. Indeed the defendant protected by such a request or exception is entitled to have his theory of defense specifically submitted to the jury in the context of the particular record facts and consistently with the decisions of this court on the points under discussion.

We hold that the instructions sufficiently recognized the requirement of “scienter” or conscious fault to withstand an attack on the ground of fundamental error and that, beyond this, there was no request or exception preserving for review any technical deficiency. The instructions covering reliance or causation in fact were free from error. Appellant’s other contentions are without any merit.

No request to charge was submitted in this area by appellant, nor were timely and sufficient exceptions taken as to any instruction. It is true that at various points during the trial appellant’s counsel had urged the court to include an instruction on “scienter”. His approach initially was oblique, being largely in support of the argument that if Rule 10b — 5 scienter was to be omitted in view of the 1933 Act’s conditionally dispensing with this element, the shorter statute of limitations provided by the 1933 Act should be applied to bar plaintiffs’ recovery. Losing on his major premise, counsel did press the independent requirement of scienter before the case was argued and the instructions were given.

But despite adequate opportunity to do so, he did not furnish any request to charge and, indeed, failed to supply any help whatever to the trial court in actually framing a proper instruction on the point. After the instructions were given the only statement even resembling an exception was “I would just have a general exception, your Honor, as I indicated earlier, that I think there should have been more scienter in the instruction as a whole, and I understand the Court’s position.” This fell far short of a timely or effective exception to preserve the point in view of the absence of any fundamental error as we have seen.

Affirmed.

      . To formulate a statement of background facts against which abstract instructions can be tested and weighed for any fundamental effect upon the verdict is not an easy matter. The pre-trial order under the heading “Uncon-troverted Facts” merely recites that “[t]here are no uncontroverted facts in addition to those established by the pleadings and discovery.” But the defendant-appellant in the pleadings generally denied the allegations of the First Amended Complaint on which the parties went to trial, and there is nothing to show that the products of discovery and particularly the responses to interrogatories included in the file were offered or received in evidence.

      . Hanna Enterprises, together with Hanna Marketing Company and Daniel C. Hanna, in addition to the original defendant Conk, were named as parties defendant by the First Amended Complaint. The Executor of the Estate of Darryl M. Stewart, also an original defendant, was dropped as such by the Amended Complaint. The added defendants by consent of the parties were in the instructions of the trial court treated essentially as one entity under the name “Hanna”, received a “no cause of action” verdict in their favor and for this reason do not appear as appel-lees in this case, although so designated in “appellants’ ” brief.

      . The amount of damages — $5,000 for each plaintiff — was stipulated subject to a determination of liability.

      . Th" state Blue Sky Law claim was dismissed by the trial court. The case was submitted to the jury on the basis of the Section 10(b) Securities Exchange Act of 1934 and Rule 10b-5.

      . Richardson v. MacArthur, 451 F.2d 35 (10th Cir. 1971); Mitchell v. Texas Gulf Sulphur Company, 446 F.2d 90 (10th Cir.), cert. denied in 404 U.S. 1004, 92 S.Ct. 564, 30 L.Ed.2d 558 (1971), in 405 U.S. 918, 92 S.Ct. 943, 30 L.Ed.2d 788 (1972); Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969), and Chiodo v. General Waterworks Corporation, 380 F.2d 860 (10th Cir.), cert. denied, 389 U.S. 1004, 88 S.Ct. 562, 19 L.Ed.2d 599 (1967). See also deHaas v. Empire Petroleum Company, 435 F.2d 1223 (10th Cir. 1970).

      . “It is not necessary to allege or prove common law fraud to make out a case under the statute and rule. It is only necessary to prove one of the prohibited actions such as the material misstatement of fact or the omission to state a material fact.” 343 F.2d at 379.

      . Before instructions were formulated, and in connection with the statute of limitations problem the trial judge stated: “I think I find that in the Mitchell case and in the Chiodo case the 3-year statute applies and has been applied in this circuit. And it seems to the Court that the Court’s view in this should be that the 3-year statute should apply in view of that ruling by the Court. It does present the problem of scienter. But I was thinking that we don’t have to really decide that question right now (Tr. 36).
      “Now, I confess that Mr. Stubbs has stimulated me on this question of the seeming illogic that is presented by adopting the 3-year rule . . . [a]nd this would seem to justify in the minds of some courts the requirement of scienter. And I presently have the feeling that the other cases we have from the circuit setting out elements in the securities case, such as in the Vowell case, and other cases in which this court has given instructions on securities cases, we have not given scienter.
      “So I have doubts presently that I would put scienter in. But I’m still open to persuasion on that.” Later the following occurred (Tr. 99):
      “Mr. Christensen (for plaintiffs): But the case which was relied upon, the Trussell case, by the defendant Conk this morning, your Honor, has been discussed in Bromberg on Securities, page 50, and the author points out — and it’s speaking now not of limitations, but of the requirement for scienter, which is a key point in the argument which is made by Mr. Stubbs the author in that work, your Honor, points out that:
      “ ‘Among the cases requiring scienter is Trussell v. United Underwriters.’
      “And it states as to the contrary the case of Stevens v. Vowells at 343 F.2d 374 from the Tenth Circuit (1965), which, of course, is a later case than the Trussed case and a case which is controlling on the District Court for the District of Colorado.
      “The Court: I’ll think about it overnight
      “I would say that I have looked at the case of Judge Doyle, and you have to read further into the decision to determine how he construes scienter. It isn’t all that easy just to accept that, because he does qualify it from the standpoint of the meaning of specific intent and so on. It isn’t all that clear.
      “So these subsequent decisions, I think have a bearing. And we have looked at Bromberg; and Bromberg cites the Texas Gulf case, too, as an indication that scienter in the usual sense is not perhaps required.
      “In a section in Bromberg it lists all of the circuits on this point. They list the Tenth Circuit in the category that Mr. Christensen has argued for.”

      . “14. In order for you to find for any of the plaintiffs and against the defendant Conk upon the federal claim, you must find by a preponderance of the evidence each of the following enumerated elements:
      “1. That in connection with or in furtherance of the transaction involving DeKater Corporation, there was use of some means or instrumentality of interstate commerce. . [The remainder of this statement is not pertinent to any point on this appeal since such use was not contested.]
      “2. That the transaction involved the sale or purchase of a security. . . [The trial court properly instructed the jury that a security was involved.]
      “3. That in connection with the transaction, or in order to effect or perpetuate it, the defendant Conk did any one or more of the following:

        “a. Engaged in any device, scheme, or artifice to defraud any or all of the plaintiffs, or
      “b. Made any untrue statement of material fact, or
      “c. Omitted to state any material fact necessary in order to make any statement made, in the light of the circumstances in which they were made, not misleading.
      “4. That with regard to the misstatement of a material fact, such misstatement was a substantial factor in the investment decision.
      “But with regard to the omission of a material fact, as distinguished from a misstatement, it is not necessary to plaintiffs’ recovery for you to find that such omission was a substantial factor in plaintiffs’ investment decision.”
      In general instructions the jury was told that “[a]n undisclosed material fact is a fact which would have influenced a reasonable man to act differently had he not been informed of the fact”, that “ ‘material’ or ‘material fact’ as I have used these terms means of significance to a person in exercising his investment judgment”, and that “[tjhe fact of reliance by a plaintiff upon particular statements or omissions, if you find such to be the fact, is persuasive evidence that the particular statement or omission relied upon is material.”

      . E. g., Rochez Bros., Inc. v. Rhoades, 491 F.2d 402 (3d Cir. 1974); Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir. 1973), dissenting opinion of Judge Hayes, at p. 1306; Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); Securities and Exchange Com’n v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir. 1968), cert. denied in 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), in 404 U.S. 1005, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1971).
      In Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir. 1973), supra, the court en banc rejected the idea advanced in some of its prior opinions that mere negligence could dispense with the necessity for some species of scien-ter in 10b-5 cases. The court stated among other things:
      “Yet the rule-making power granted to the Securities and Exchange Commission by Section 10(b) authorizes rules making it unlawful ‘[t]o use or employ . . . any manipulative or deceptive device or contrivance . . .’ (emphasis added.) These words negate liability for a mere negligent omission or misrepresentation. Rather, ‘proof of fraud is required in suits under § 10(b) of the 1934 Act and Rule X-10 B-5
      Citing Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 786 (2d Cir. 1951). The court concluded that at least “. . . proof of a wilful or reckless disregard for the truth is necessary to establish liability under Rule 10b-5.” 479 F.2d at 1306. The dissenting opinion of Judge Hays, 479 F.2d at 1319, again exemplifies the prevalent misunderstanding of Stevens v. Vowells by listing that case with Ellis v. Carter, 291 F.2d 270 and City National Bank v. Vanderboom, 422 F.2d 221 as proof that at least in the Tenth, Ninth and Eighth Circuits it has been ruled “. that scienter is not a necessary element of a 10b-5 claim for relief.”
      A hint of the confusing nature of this subject generally is indicated by headnote 1 of the West advance sheets reporting United States v. Jones, 380 F.Supp. 343 (D.N.J.1974), “The government need not show fraudulent intent to obtain a criminal conviction under the Securities Act”, vis-a-vis the related text reading: “Initially no one seriously argues that the government need not show fraudulent intent to obtain a criminal conviction under the Securities Act . . especially when it is yet seriously debated that such fraudulent intent is á prerequisite in proving even civil liability under the Act.”

      . Mitchell v. Texas Gulf Sulphur Co., 446 F.2d 90 (10th Cir. 1971), supra; Gilbert v. Nixon, 429 F.2d 348 (10th Cir. 1970).

      . Kerbs v. Fall River Industries, Inc., 502 F.2d 731 (10th Cir. 1974), footnote 6.

      . See Kohn v. American Metal Climax, Inc., 458 F.2d 255 (3d Cir.), cert. denied, 409 U.S. 874 (1972), in which it was observed:
      “Stevens v. Vowell, 343 F.2d 374 (10th Cir. 1965), is yet another example of a court asserting that it is not necessary to allege common law fraud to recover damages under Section 10(b), although the facts demonstrate a situation where outright manipulation, or, indeed, actual fraud did exist. Plaintiff, in Stevens, sued to recover the amount paid for the purchase of stock in a corporation created to exploit an invention for the return of arrows in an archery lane. The' defendants had misrepresented the ownership of the invention, their intent to build archery lanes to exploit the invention, and their intent to share funds others had invested. Although the court indicates absolute liability for material misrepresentations, relying on Matheson [Matheson v. Armbrust, 284 F.2d 670] and Royal Air Properties [Royal Air Properties v. Smith, 312 F.2d 210], nonetheless the underlying facts demonstrate conduct from which intent to defraud is readily inferrable.”

      . We have been able to cover only the major thrusts of the opinions with reference to these limited aspects and with little reference to the circumstances individually involved. Hence for any more particular focus the cases themselves must be analyzed. Especially is this true with reference to the interrelationship ■ between the 1933 and the 1934 Acts and the problem of burden of proof when submissions involve reliance upon the provisions of both Acts. We have not been concerned here with burden of proof, criminal cases, expressly authorized causes of action, enforcement proceedings as distinguished from private civil actions, nor with other unraised problems in this complicated field.

      . Perhaps part of the difficulty with the elements of “scienter” and “reliance” in application stems from the words themselves rather than broad concepts. From the common law these words have been transported by name into an environment inhospitable to at least part of what they meant in their old one. It may be that “reliance” and “scienter” at length will have carried the load long enough in the securities context so that as faithful but over-strained and superannuated work horses they may be put out to pasture while their more adaptable offspring “causation in fact”, Affiliated Ute Citizens v. United States, 406 U.S. 128, 154 (1972), and “conscious fault”, take up the burden except for limited services in more suitable fields.

      . See footnote 5.

      . Financial Indus. Fund, Inc. v. McDonnell Douglas Corp., 474 F.2d 514 (10th Cir. 1973), supra; Mitchell v. Texas Gulf Sulphur Company, 446 F.2d 90 (10th Cir. 1971), supra; Gilbert v. Nixon, 429 F.2d 348 (10th Cir. 1970), supra.

      . Cf. Fed.R.Cr.P. 52(b). See Hormel v. Hel-vering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941); Smith v. Welch, 189 F.2d 832 (10th Cir. 1951); State v. Neustadt, 149 F.2d 143 (10th Cir. 1945); National Fire Ins. Co. v. School Dist. No. 68, 115 F.2d 232 (10th Cir. 1940). Cf. Murphy v. Dyer, 409 F.2d 747 (10th Cir. 1969).

      . See footnote 8 for the trial court’s charge as to Conk.

      . Radio Corporation of America v. Radio Station KYFM, Inc., 424 F.2d 14 (10th Cir. 1970); Smith v. Greyhound Lines, Inc., 382 F.2d 190 (10th Cir. 1967); Great-West Life Assurance Company v. Levy, 382 F.2d 357 (10th Cir. 1967); Dunn v. St. Louis-San Francisco Railway Company, 370 F.2d 681 (10th Cir. 1966). Cf. Fey v. Walston & Co., Inc., 493 F.2d 1036, 1047 (7th Cir. 1974).