author: MERRILL, Circuit Judge:

text:
    Sterling JACKSON, Plaintiff-Appellant, v. COAST PAINT AND LACQUER COMPANY, a corporation, and Reliance Universal Incorporated, a corporation, Defendants-Appellees.
    No. 72-2078.
    United States Court of Appeals, Ninth Circuit.
    July 1, 1974.

      John J Cavan, Jr. (argued), Sandall, Moses & Cavan, Billings, Mont., for plaintiff-appellant.
    Waymouth D. Symmes, (argued), Anderson, Symmes, Forbes, Peete & Brown, Billings, Mont., for defendantsappellees.
    Before MERRILL and ELY, Circuit Judges, and ZIRPOLI, District Judge.

       Honorable Alfonso J. Zirpoli, United States District Judge for the Northern District of California, sitting by designation.

   OPINION

MERRILL, Circuit Judge:

In this diversity case plaintiff seeks to recover from a manufacturer-seller of paint for personal injuries which he claims resulted from failure of the manufacturer to warn adequately of the product’s dangerous characteristics. The case was presented to a jury on a theory of strict liability. The jury returned a general verdict for the defendant. On this appeal plaintiff challenges the correctness of the district court’s instructions to the jury on two issues: the nature of the defendant’s duty to warn, and the defense of contributory negligence. Concluding that there was indeed error in these instructions, we reverse.

In 1964 plaintiff, a citizen of Utah, was a journeyman painter employed by a Utah painting contractor. His employer entered into a contract with a Montana manufacturing company to paint some railroad tank cars that were to be used for the shipment of bulk quantities of honey. Plaintiff was sent by his employer to Billings, Montana, to do the work.

The paint used to coat the inside of the tank cars, “Copon EA9,” was manufactured and sold by defendant Reliance Universal, Inc., a Texas manufacturer of industrial paints and coatings. It is an epoxy paint which is highly flammable. While plaintiff was spray painting the inside of one of the tanks a fire occurred and he was very severely burned. The fuel of the fire consisted of the paint fumes which had accumulated in the tank. The cause of ignition is uncertain and was a disputed issue at trial. There was some evidence that it was caused by breakage of a light bulb used by plaintiff in the tank. This is the theory favored by defendant. There was other evidence, mainly expert testimony including an experiment-demonstration, to the effect that the fire could have been touched off by static electricity, perhaps generated by the friction of the rubber soles of plaintiff’s shoes on the tank floor. This is the theory favored by plaintiff.

An officer of Reliance testified that Reliance was aware of the fact that Copon EA9 is hazardous if not properly used under proper conditions. Two hazards are recognized to be associated with use of the paint: breathing the toxic vapors, and fire.

The label on the paint used by plaintiff was introduced into evidence. It contains a warning which first refers to the toxicity of the paint if ingested, and then states:

“Keep away from heat, sparks, and open flame. USE WITH ADEQUATE VENTILATION. Avoid prolonged contact with skin and breathing of spray mist. Close container after each use. KEEP OUT OF REACH OF CHILDREN.”

Plaintiff testified that he and other painters of his acquaintance understood the warning regarding adequate ventilation to refer only to the danger of breathing toxic vapors. While painting the tanks he had contrived and used a tube and mask which enabled him to breathe fresh air from outside the tank. Otherwise plaintiff took no precautions in the nature of “ventilation.” He testified that he had been unaware of the possibility that flammable vapors permitted to accumulate in a closed, inadequately ventilated area could be touched off by a spark resulting in a fire or explosion. There was, however, other evidence that some persons in plaintiff’s company were aware that such a danger existed.

This court has held, “In the absence of controlling decisions of the Montana Supreme Court, the District Court properly looked to and adopted * * * the Restatement of the Law of Torts, 2d, as the law of Montana.” Jacobson v. Colorado Fuel & Iron Corp., 409 F.2d 1263, 1270 (9th Cir. 1969) ; accord, Davis v. Wyeth Laboratories, Inc., 399 F.2d 121, 127 (9th Cir. 1968). In most respects the instructions to the jury did comport with the law as set forth in the Restatement (Second) of Tort's (1965) and other relevant authorities. However, in two respects they failed to state the law correctly; and they failed in a manner which may have been, on the evidence presented, highly prejudicial to the plaintiff.

1. The duty to warn instruction

In the Restatement under Chapter 14, “Liability of Persons Supplying Chattels for the Use of Others,” Topic 5, “Strict Liability,” § 402A provides:

“Special Liability of Seller of Product ' for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or .to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

Comment i under this section states in part:

“Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. * * * The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”

It is not essential to strict liability that the product be defective in the sense that it was not properly manufactured. If the product is unreasonably dangerous that is enough. Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. 1968). A product may be perfectly manufactured and meet every requirement for its designed utility and still be rendered unreasonably dangerous through failure to warn of its dangerous characteristics. Davis v. Wyeth Laboratories, Inc., supra.

Comment j to § 402A states in part:

“Directions or warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. * * *
But a seller is not required to warn * * * when the danger, or potentiality of danger, is generally known and recognized.”

The district court’s, instructions to the jury included the following:

“[Djefendant had a duty to supply plaintiff or his employer with proper and adequate directions for the use of the paint and proper and adequate warnings concerning the dangers inherent in the paint.
* * * * * *
If the defendant had reason to believe that plaintiff or his employer knew or would discover the hazards inherent in the paint, then defendant had no duty to warn plaintiff or his employer of these dangers.”

In our judgment this instruction was erroneous in three respects.

First. It suggests that liability is based on negligence rather than strict liability. (It is in fact patterned upon § 388(b) of the Restatement, which sets forth the elements of liability on the part of a supplier of a chattel for negligent failure to warn of dangers known to the supplier.) In strict liability it is of no moment what defendant “had reason to believe.” Liability arises from “sell[ing] any product in a defective condition unreasonably dangerous to the user or consumer.” It is the unreasonableness of the condition of the product, not of the conduct of the defendant, that creates liability.

Second. Plaintiff has contended that a more specific warning of the fire hazard ought to have been given, namely, that accumulated fumes or vapors in an inadequately ventilated area may be ignited by a spark resulting in a violent fire or explosion. His position is that the absence of such a specific warning rendered the paint as marketed by the defendant “unreasonably dangerous to the user or consumer”; in other words, that there was a “duty to warn” of the particular hazard. Defendant contends, in this regard, that it had no duty to warn of this particular hazard because, in the words of comment j to § 402A, “the danger, or potentiality of danger, is generally known and recognized.”

On the evidence presented, this was an issue for the jury. The challenged instruction, however, presents the wrong issue. It is not the knowledge actually possessed by the plaintiff, individually, that determines whether the absence of warning renders a product unreasonably dangerous. The subjective knowledge of the plaintiff becomes relevant upon the issue of contributory negligence, as we explain below. On the issue of duty to warn, however, the question to be put to the jury is whether “the danger, or potentiality of danger, is generally known and recognized”; whether the product as sold was “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Restatement § 402A, comments j, i (emphasis added).

Third. The most serious error in the challenged instruction is the statement that knowledge of the hazard on the part of plaintiff’s employer would obviate any duty to warn plaintiff. Besides improperly focusing on the knowledge of an individual rather than general or common knowledge, this erroneously conceives the “community" whose common knowledge the jury is to ascertain. The seller’s duty under § 402A is to “the ultimate user or consumer.” At least in the case of paint sold in labeled containers, the adequacy of warnings must be measured according to whatever knowledge and understanding may be common to painters who .will actually open the containers and use the paints; the possibly superior knowledge and understanding of painting contractors is irrelevant.

The general principle can be illustrated by comparing to this case two cases relied upon by defendant: Hopkins v. E. I. DuPont de Nemours & Co., 212 F.2d 623 (3d Cir.), cert. denied, 348 U.S. 872, 75 S.Ct. 108, 99 L.Ed. 686 (1954), and Jacobson v. Colorado Fuel & Iron Corp., 409 F.2d 1263 (9th Cir. 1969). In Hopkins plaintiff’s decedent was killed when he placed a stick of dynamite manufactured by the defendant into a freshly drilled hole in a rock which had not been allowed to cool; the heat generated by the drilling set off the charge. Hopkins contended that the defendant manufacturer had a duty to warn of this particular hazard. The court of appeals held that there was no such duty because, as shown by the testimony of the decedent’s own foreman, the danger was well known to those who supervise blasting operations.

In Jacobson plaintiff’s decedent was killed when steel strand manufactured by the defendant broke during a procedure in the manufacture of prestressed concrete by the decedent’s employer. Plaintiff contended that the defendant had inadequately warned the decedent of the particular danger of overstressing the strand. The decedent had been a foreman, whose work was done under the supervision and direction of several superiors. One of them, the production coordinator, admitted knowledge of the relevant danger. There was testimony of other experts in the field that the danger was well known. On these facts this court followed Hopkins. 409 F.2d at 1273. We adopted the trial court’s conclusions of law:

“ ‘Where a supplier furnishes chattels, the use of which is to be directed by technicians or engineers, it is sufficient to insulate the supplier from liability for failure to warn if the warnings given are sufficient to apprise the engineers or technicians of the dangers involved, or if the technicians have knowledge of the dangers involved. There is no duty to warn those who simply follow the directions of the engineers or techicians * * * ’ >*

409 F.2d at 1273 (emphasis added).

There are important distinctions between products such as the dynamite involved in Hopkins or the steel strand in Jacobson and the paint involved here. Paint is not a product “the use of which is to be directed by technicians or engineers.’’ Further it is a product so dispensed that warning to the ultimate consumer can readily be given.

Restatement § 388, comment rt, states :

“Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel. The question remains whether this method gives reasonable assurance that the information will reach those whose safety depends upon their having it. * * *
Many such articles can be made to carry their own message to the understanding of those who are likely to use them * * * by a label or other device, indicating with a substantial sufficiency their dangerous character. Where the danger involved in the ignorant use of their true quality is great and such means of disclosure are practicable and not unduly burdensome, it may well be that the supplier should be required to adopt them.” (emphasis added).

See also Note, The Manufacturer’s Duty to Warn of Dangers Involved in Use of a Product, 1967 Wash.U.L.Q. 206, 209-210.

A distinction analogous to the one we draw here — between packaged paint, on the one hand, and bulk steel strand or dynamite, on the other — was made in Davis v. Wyeth Laboratories, Inc., 399 F.2d 121, 130-131 (9th Cir. 1968). There we noted that in the case of a prescription drug, normally a' warning of dangers given to the physician is sufficient; but we held that when a drug was distributed “to all comers at mass clinics without an individualized balancing by a physician of the risks involved,” a warning sufficient to apprise the patient himself of the risks was mandated.

Accordingly we hold that the duty to warn runs, on these facts, directly to the painter, and is not discharged when the employer alone is informed of the danger.

2. The contributory negligence instruction

The extent- to which the defense of contributory negligence is available in actions of this nature is stated in comment n under § 402A of the Restatement :

“Contributory negligence. Since the liability with which this Section deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases (see § 524) applies. Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.”

The district court’s instructions on contributory negligence included the following :

“If the plaintiff or his employer had knowledge and was aware of the fact that the paint in question was potentially hazardous and nevertheless proceeded unreasonably to make use of the product, or made an improper use of the product, and was injured as a result, he is barred from recovery.”

Here again the court erred in according significance to knowledge of plaintiff’s employer. There can be contributory negligence which bars recovery only if plaintiff, the “user or consumer,” was aware of and unreasonably embraced .the danger. It is manifest not only in the passage quoted but also from all other parts of the Restatement dealing with contributory fault that “the form of contributory negligence which * * * commonly passes under the name of assumption of risk” must be subjective, conscious, and personal to the plaintiff. See § 466(a) and comments c and d; §§ 496A-G, especially § 496D and comment c. Such negligence plainly cannot be “imputed” to the plaintiff from another. See § 485. Therefore any knowledge plaintiff’s employer may have had concerning the hazard which resulted in plaintiff’s injury is irrelevant, where the employer did not in fact communicate any superior knowledge to plaintiff prior to the accident. This would be true even if the employer himself had an independent legal duty to warn plaintiff. See Yale & Towne, Inc. v. Sharpe, 118 Ga.App. 480, 164 S.E.2d 318, 327 (1968); Polovich v. Sayers, 412 S.W.2d 436, 440 (Mo.1967); Restatement § 396 and comment b and illus. 2.

Here, on the evidence presented, the jury might have found as fact that the label on the paint was insufficient to warn of dangerously flammable characteristics ; that there was no common knowledge of such characteristics in the community of which plaintiff was a part; and that lack of warning thus rendered Copon EA9 unreasonably dangerous ; that while plaintiff himself had no such knowledge plaintiff’s employer, the painting contractor, did have extrinsic knowledge of the dangerous characteristics of Copon EA9. Under the instructions of the court such findings would require judgment for the defendant. We conclude that this was error.

Reversed and remanded for new trial.

      . It was also presented on a theory of negligence. However, plaintiff here asserts no error respecting the negligence count.

      . With Hopkins compare Eck v. E. I. DuPont de Nemours & Co., 393 F.2d 197 (7th Cir. 1968). Plaintiff Eck, a laborer, was injured because he was standing too close to a blast of dynamite purchased from defendant and detonated by plaintiff’s foreman. He alleged that failure to warn of the minimum safe distance was the cause of his injury. Defendant had included instructions in each carton of dynamite referring to safety measures generally and stating that a more detailed pamphlet on safety was available free to purchasers on request. Reversing summary judgment for the defendant, the court held that a jury question was presented whether this method gave “reasonable assurance that the information will reach those whose safety depends upon their having it,” quoting Restatement § 388, comment n.

      . With Jacobson compare West v. Broderick & Bascom Rope Co., 197 N.W.2d 202, 211-212 (Iowa 1972), where the court held that it was for the jury to decide whether a supplier of a wire rope sling had discharged his duty to warn regarding the strength of the rope by supplying information to the employer, or whether instead the supplier should have used some means of attaching this information to the rope itself in order to warn directly ironworkers who would use the product. But cf. McKay v. Upson-Walton Co., 317 F.2d 826 (7th Cir. 1963).

      . While Jacobson can be read as focusing on the knowledge actually possessed by the particular supervising personnel involved in determining whether a duty to warn existed, we do not so read it. From the facts it appears that the knowledge had by the supervising personnel of the defendant was shared by such personnel in the industry generally and thus was “ordinary knowledge common to the [relevant] community.”

      . Tomicich v. Western-Knapp Engineering Co., 423 F.2d 410 (9th Cir. 1970), does not avail defendant on this- point. There it was clear that the plaintiff “voluntarily exposed himself to the known danger of the machine and was injured.” 423 F.2d at 413.


source: Caselaw Access Project

author: ROBERT D. MORGAN, District Judge. SWYGERT, Chief Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald Alan BUSH, Defendant-Appellant.
    No. 72-1013.
    United States Court of Appeals, Seventh Circuit.
    June 5, 1974.

      George C. Pontikes, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Theodore T. Scudder, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and MORGAN, District Judge.

       Chief Judge Robert D. Morgan of the Southern District of Illinois is sitting by designation.

   ROBERT D. MORGAN, District Judge.

The original decision on appeal here affirmed the defendant Bush’s conviction for willfully failing to submit to induction under the Selective Service Act. That decision along with Chief Judge Swygert’s dissenting opinion were published at 476 F.2d 1094 (7th Cir., 1973). On writ of certiorari to this court, the Supreme Court of the United States, in its case No. 73-5054, sub. nom., Bush v. United States, 414 U.S. 1019, 94 S.Ct. 441, 38 L.Ed.2d 311, has now vacated the judgment of this court and remanded the cause “for reconsideration in light of the position presently asserted by the Government.”

In the Supreme Court, the Government agreed with neither the majority nor dissenting opinion here and acceded to the position that, because he was subsequently reclassified and deferred several times on other grounds, petitioner Bush’s failure to exhaust administrative remedies on his conscientious objector claim in 1966 “is not dispositive of his attack on the 1-A classification underlying this prosecution.” We now proceed from that starting point and note, in passing, the Government’s further position in the Supreme Court that this court had “reached the correct result in this ease, although for the wrong reasons.”

The 1-A classification underlying this prosecution was adopted by the local board on November 15, 1968, after expiration of the last of several student deferments. On December 12, 1968, abandoning a previous claim for hardship deferment, Bush advised the board that he wished to appeal the 1-A classification because of his conscientious objection, referring to the claim in that regard asserted in 1965, from the denial of which he had taken no appeal.

On January 8, 1969, the board informed Bush that it had scheduled a personal appearance for him on February 25, 1969. He responded that he would be unable to attend this meeting personally, but he enclosed a statement outlining his beliefs in order to aid the draft board in determining his draft status. On February 25, the local board, without stating reasons therefor, declined to reclassify him as a conscientious objector;. it notified him of his 1— A classification by means of Form 110 and accompaning Form 217, which indicated that he had thirty days to appeal the board’s decision. Appeal was taken to the State Appeal Board, which agreed that 1-A classification was proper. After other delays not here relevant, Bush was ordered to report for induction on August 13, 1970. He reported as ordered, but refused induction. The conviction here involved followed.

Of importance for consideration here is whether the local board’s consideration of that written statement on February 25, 1969, and its mailing of a new notice of classification and of appeal rights to him thereafter, necessarily showed a reopening of the classification and reclassification to the same 1-A classification as before, or whether it was, instead, a consideration and refusal to reopen. On this point we agree with the Solicitor General’s position in the Supreme Court that application of the notice requirements of Regulation 1624.-2(d) is not dependent on every “personal appearance” being physically in person. As here, having been invited for a personal appearance, Bush accomplished that appearance within the meaning of the regulations by the written statement he chose to supply, instead of coming himself. This construction avoids any necessity of presuming a statement of prima facie ease of conscientious objection on a reopening which can be said to have occurred only by such unjustified and unnecessary presumption. We conclude that the board refused to reopen on good grounds apparent on the record.

Without such presumed reopening by the local board, the rule of United States v. Lemmens, 430 F.2d 619 (CA 7 1970), does not come into play. Neither is there help for Bush in this circumstance in Joseph v. United States, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed.2d 473 (1972).

There appears to us simply no basis for the conclusion that the board considered that a prima facie case of conscientious objection had been presented. The fact that the board recognized the December 12, 1968 letter as a reassertion of the old C-0 claim and scheduled a personal appearance thereon indicates the contrary, It clearly shows acceptance of the responsibility to permit Bush to state a case anew if he could, having failed to do so and having abandoned the effort in 1966. It seems clear that they received his written statement as his appearance and his best effort in this regard and found it less than a prima facie case.

It remains simply for the court to evaluate the effort as appearing in the record to determine whether in fact it was sufficient to state a prima facie case. It is clear that it was not. Bush’s written statement in support of his conscientious objector claim, set forth in full in the file, revealed that he relied upon a merely personal moral code based upon essentially philosophical views (see 50 U.S.C.App. § 456 (j)). These views are not the sort which were considered equivalent to orthodox religious views in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733, and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308. A prima facie case of conscientious objection was clearly never presented anywhere.

Upon reconsideration on remand as aforesaid, the judgment of the district court, for the reasons stated, is again

Affirmed.

SWYGERT, Chief Judge

(dissenting).

The majority holds that the defendant failed to state a prima facie case as a conscientious objector. I cannot agree and must therefore respectfully dissent.

The controlling law in this circuit with regard to the question before us was stated in United States v. Lemmens, 430 F.2d 619, 624 (7th Cir. 1970):

We are persuaded that where the validity of a classification rejecting a claim as conscientious objector is in issue, and where the registrant described a belief which on its face fulfilled the legal requirements, the board did not state its reason for rejection, and the court cannot otherwise determine with any degree of assurance that the decision really made by the board properly supported the rejection and had a basis in fact, the court should hold the classification invalid. [Emphasis added].

I would hold that defendant has more than satisfied the requirements for presentment of a prima facie attainment of conscientious objector status. In Clay v. United States, 403 U.S. 698, 700, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971), the Supreme Court detailed the three basic requirements which defendant must meet. He must show: (1) that he is conscientiously opposed to war in any form; (2) that his objection is sincere; and (3) that his opposition is based upon religious training and belief. It would appear that defendant has adequately fulfilled the first two requirements. Indeed, the majority’s challenge to the defendant’s claim for conscientious objector status centers solely on the third requirement. In rejecting defendant’s claim the majority says that:

[Defendant’s] statement ... revealed that he relied upon a merely personal moral code based upon essentially philosophical views. These views are not the sort which were considered equivalent to orthodox religious views in United States v. Seeger, 380 U.S. 163, [85 S.Ct. 850, 13 L.Ed.2d 733], and Welsh v. United States, 398 U.S. 333 [90 S.Ct. 1792, 26 L.Ed.2d 308].

I believe the majority misreads the Seeger and Welsh decisions. Here defendant’s opposition to war stemmed not from a religious belief in a supreme deity; rather it emanated from a moral and ethical belief grounded on his longstanding and religious-like convictions and commitment to honor, truth, and human worth. That defendant’s objection to all war was forged from religious beliefs has been more than amplified in the Supreme Court’s decision in Welsh v. United States, 398 U.S. 333, 339-340, 90 S.Ct. 1792, 1796, 26 L.Ed.2d 308 (1970), where it was stated with respect to religious belief:

The Court made it clear [in Seeger] that these sincere and meaningful beliefs that prompt the registrant’s objection to all wars need not be confined in either source or content to traditional or parochial concepts of religion. It held that § 6 (j) “does not distinguish between externally and internally derived beliefs,” id., at 186, [85 S.Ct., at 864] and also held that “intensely personal” convictions which some might find “incomprehensible” or “incorrect” come within the meaning of “religious belief” in the Act. Id., at 184-185, [85 S.Ct. at 863-864], What is necessary under Seeger for a registrant’s conscientious objection to all war to be “religious” within the meaning of § 6(j) is that this opposition to war stem from the registrant’s moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions. Most of the great religions of today and of the past have embodied the idea of a Supreme Being or a Supreme Reality — a God — who communicates to man in some way a consciousness of what is right and should be done, of what is wrong and therefore should be shunned. If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual “a place parallel to that filled by . God” in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a “religious” conscientious objector exemption under § 6(j) as is someone who derives his conscientious opposition to war from traditional religious convictions.
Applying this standard to Seeger himself, the Court noted the “compulsion to ‘goodness’ ” that shaped his total opposition to war, the undisputed sincerity with which he held his' views, and the fact that Seeger had “decried the tremendous ‘spiritual’ price man must pay for his willingness to destroy human life.” 380 U.S., at 186-187, [85 S.Ct. at 864].

The majority holds that the defendant’s opposition to war was nurtured by a mere “personal moral code based upon essentially philosophical views” which consequently excludes him from a conscientious objector exemption. With respect to exclusion from exemption as a conscientious objector due to philosophical or personal views the Supreme Court in Welsh held:

We certainly do not think that § 6(j)’s exclusion of those persons with “essentially political, sociological, or philosophical views or a merely personal moral code” should be read to exclude those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy. The two groups of registrants that obviously do fall within these exclusions from the exemption are those whose beliefs are not deeply held and those whose objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon considerations of policy, pragmatism, or expediency. In applying § 6(j)’s . exclusion of those whose views are “essentially political, sociological, or philosophical” or of those who have a “merely personal moral code,” it should be remembered that these exclusions are' definitional and do not therefore retrict the category of persons who are conscientious objectors by “religious training and belief.” Once the Selective Service System has taken the first step and determined under the standards set out here and in Seeger that the registrant is a “religious” conscientious objector, it follows that his views cannot be “essentially political, sociological, or philosophical.” Nor can they be a “merely personal moral code.” See United States v. Seeger, 380 U.S., at 186, [85 S.Ct. at 864],
Welsh stated that he “believed [d] the taking of life — anyone’s life — to be morally wrong.” ... On the basis, of these beliefs and the conclusions of the Court of Appeals that he held them “with the strength of more traditional religious convictions,” 404 F.2d at 1081, we think Welsh was clearly entitled to a conscientious objector exemption. 398 U.S. at 342-343.

In my view defendant’s objection to war was not spawned by “considerations of policy, pragmatism, or expediency.” Accordingly, I would reverse.


author: BRIGHT, Circuit Judge.

text:
    D. C. WILLIAMS et ux., Appellants, v. The MATTHEWS COMPANY et al., Appellees.
    No. 73-1765.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 13, 1974.
    Decided June 20, 1974.

      Sylvia Drew, New York City, for appellants.
    H. B. Stubblefield, Little Rock, Ark., for appellees.
    Before GIBSON, BRIGHT and STEPHENSON, Circuit Judges.
   BRIGHT, Circuit Judge.

D. C. Williams, a black man from North Little Rock, Arkansas, brought this civil action, individually and as a class representative for other black persons, charging defendants with racial discrimination in refusing to sell residential building lots to black people in violation of the Civil Rights Acts of 1870 and 1866 (42 U.S.C. §§ 1981, 1982) and § 804 of the Civil Rights Act of 1968 (42 U.S.C. § 3604). In addition to declaratory and injunctive relief, plaintiff sought compensatory damages and reasonable attorney’s fees. Jurisdiction was asserted under 28 U.S.C. § 1343 and 42 U.S.C. § 3612

In dismissing the class action aspects of the case and denying Williams any individual relief, the trial court concluded that the defendants accorded Williams “special handling” only for the purpose of accomplishing smoothly some integration of their all-white real estate subdivision, Lakewood, and that the defendants refused to sell Williams a real estate lot in pursuance of their valid policy of restricting sale of lots only to “qualified” building contracts. We reverse. and remand.

We think that racial discrimination by the defendants in their real estate operations is shown as a matter of fact and law. The defendants’ policy of selling lots only to builders, which, under the circumstances, operated to exclude black persons from acquiring building lots in the real estate subdivision, does not afford any legal justification for defendants’ conduct.

I.

The facts relating to defendants’ conduct appear without substantial dispute in the record. Although defendants attacked the bona fides of Williams’ proposal to purchase real estate, the trial court resolved that issue in Williams’ favor in finding that “Mr. and Mrs. Williams did in good faith attempt to purchase a lot in Lakewood with the intention of building a home valued between $30,000 and $40,000.”

“Lakewood”, a large residential subdivision in North Little Rock, Arkansas, is being developed by the defendant-Matthews Company, which holds in trust a number of tracts originally part of the vast land holdings of the late Justin Matthews, Sr. Defendant-John Matthews, the son, is chairman of the board of the company; defendant-James Matthews, the grandson, is president. As was the case with four other Matthews Company subdivisions, none of the 2,000 residential lots in Lakewood were occupied by blacks as of the date of the filing of the complaint. At the trial, John Matthews testified that the company had excluded blacks from its subdivisions as an official policy since 1945, but that this policy had been abandoned in approximately 1965. He admitted that he had never notified the public of this change nor taken any affirmative steps to integrate the Lakewood community.

In March of 1970, Williams initiated his inquiry about purchasing a lot in Lakewood. He and his wife, Dinah, taught in the public school system in Little Rock and, at the time of the suit, jointly earned approximately $16,000 annually. Beginning in September 1969, the Williamses began looking for property upon which to a build a larger home for themselves and their two children. They had built their own home in Glen-view (a Negro subdivision in North Little Rock) valued at $25,000, and, as a Korean War veteran, plaintiff had available to him Y.A. loans. The couple planned to spend between $30,000 and $40,000 on a new home.

During this time, they looked at property in the Lakewood subdivision where they found a “for sale” sign posted on each vacant lot. Each sign" gave the price and size of the lot and listed the Matthews Company as seller, with its phone number. If a lot had been sold, the sign gave the owner’s name. According to the plaintiffs, these signs remained posted up to and after the time their suit was filed on April 29, 1970. Based on their visits to Lakewood, the couple decided to inquire further about four particular pieces of property.

On March 16, 1970, the Williamses called to make an appointment at the Matthews Company. The next day, they met with Mr. James Matthews, the president of the company, who indicated that he could neither accept nor reject their offer to purchase a lot, but would have to take the matter up with his father, John Matthews, and call them later in the week.

On March 18, 1970, James Matthews called the Williamses and for the first time informed them that the company did not sell lots to individuals, but only to builders. He informed the plaintiff that they might find an approved builder and have him purchase a lot, and further advised the couple that it would be better for them to purchase an already constructed home. He suggested that he might even make his mother’s “villa” available for $60,000. The couple restated their intention of building their own home. No list of builders was furnished to the Williamses by James Matthews nor was any further contact initiated by him or other members of the Matthews Company.

Shortly after this March 18 conversation with James Matthews, plaintiff attempted to contact several of the builders whose names had appeared on signs on other homes in Lakewood. One of the white builders to whom the couple talked indicated that he would go out of business if he built a house in Lakewood for blacks, but offered to build in a black residential area if they wished. A second white builder also refused to build for the Williamses. After these conversations, the couple approached a black builder, Joe Anderson, to visit the Matthews Company on their behalf.

In mid-April, Joe Anderson met with James Matthews and stated his desire to purchase a lot for the Williamses. Matthews stated that Anderson would have to be an “approved builder” before he could sell a lot to him, but he did not outline any procedures for becoming an approved builder. He informed Anderson that he could not give him any answer on his request until his father, John Matthews, returned from the Orient two months later. At the trial, it appeared from defendants’ testimony that the company never had any formal policies or procedures relating to approved builders. According to James Matthews, builders were approved or disapproved by the board of directors, but, according to John Matthews, who was chairman of the board, he had not made any decisions on approving builders for five years and it was his son, .James, who made the decisions.

On April 24, 1970, Mrs. Williams contacted James Matthews for the last time. He informed her that he would not sell them a lot and would not give them a decision on letting their builder purchase a lot until John Matthews returned to the country in June. Five days later, the plaintiffs filed this suit.

In defense of the conduct.of the Matthews Company, John, Matthews introduced into evidence an office memorandum dated February 13, 1970, to demonstrate that the personnel of the Matthews Company contemplated integration of the all-white Lakewood subdivision. This memorandum, while espousing the principle of integration as “morally right”, ordered special treatment of any black person seeking entry into the subdivision, to be handled personally by the senior Matthews, John.

John Matthews, at trial, testified that the corporation could not sell Williams a lot in the subdivision without violating a firm policy to sell lots only to approved building contractors. Thát policy had allegedly been adopted in late 1969 as a means of insuring an orderly development of the subdivision since approved contractors would undertake prompt construction on those building lots which were made available to them for purchase. As a further reason for justifying the refusal to sell Williams a lot, John Matthews testified that he believed that Williams’ attorney, John W. Walker, of Little Rock, would seek to invalidate certain subdivision building restrictions relating to size and cost of homes.

In denying Williams’ claim, the district court characterized defendants’ policy of selling only to builders as free of racial considerations and described defendants’ fear — that sale of a subdivision lot to Williams would produce a challenge to their building restrictions —as sincerely but perhaps mistakenly held. Accordingly, the trial court concluded that plaintiff was not denied the right to purchase property because of his race and that plaintiff was afforded the same opportunity as others to purchase from an approved builder. The trial court additionally determined that “defendants have here demonstrated that their practice of selling to builders has a demonstrated business reason for its retention.”

An examination of the statutes and case-law require a conclusion contrary to that reached by the district court.

II.

The policy of the United States contained in Title VIII of the Civil Rights Act of 1968 is to provide, within constitutional limitations, fair housing throughout the country. 42 U. S.C. § 3601. Like the 1866 Civil Rights Act, the Fair Housing Title is an exercise of congressional power under the thirteenth amendment to eliminate the badges and incidents of slavery. United States v. Hunter, 459 F.2d 205, 214 (4th Cir. 1972). As the Supreme Court commented in Jones v. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), construing 42 U.S.C. § 1982:

[W]hen racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery. [392 U.S. at 442-443.]

Thus, the Fair Housing Title of the Civil Rights Act of 1968 and the 1866 Civil Rights Act together comprehensively spell out the right of an individual to rent or purchase housing without suffering discrimination and to obtain federal enforcement of that fundamental guarantee. 392 U.S. at 413-417.

Recent cases make clear that the statutes prohibit all forms of discrimination, sophisticated as well as simpleminded, and thus disparity of treatment between whites and blacks, burdensome application procedures, and tactics of delay, hindrance, and special treatment must receive short shrift from the courts. See United States v. Pelzer Realty Company, Inc., 484 F.2d 438 (5th Cir. 1973); United States v. Youritan Construction Company, 350 F.Supp. 643 (N.D.Cal., filed Feb. 8, 1973); Hall v. Freitas, 343 F.Supp. 1099 (N.D.Cal.1972); Newbern v. Lake Lorelei, Inc., 308 F.Supp. 407 (S.D.Ohio 1968); Brown v. Lo Duca, 307 F.Supp. 102 (E.D.Wis.1969).

Race is an impermissible factor in real estate transactions under both 42 U.S..C- § 1982 and 42 U.S.C. § 3604 and “cannot be brushed aside because it was neither the sole reason for discrimination nor the total factor of discrimination.” Smith v. Sol D. Adler Realty, 436 F.2d 344, 349-350 (7th Cir. 1970). The courts will look beyond the form of a transaction to it's substance and proscribe practices which actually or predictively result in racial discrimination, irrespective of defendant’s motivation. See United States v. Grooms, 348 F.Supp. 1130, 1133-1134 (M.D.Fla.1972); United States v. Real Estate Development Corporation, 347 F.Supp. 776, 782 (N.D.Miss.1972); United States v. Reddock, No. 6541-71-P (S.D.Ala., filed Jan. 1, 1972), aff’d, 467 F.2d 897 (5th Cir. 1972).

We think that the concept of the “prima facie case” applies to discrimination in housing as much as to discrimination in other areas of life. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This is not a new principle, but is a familiar one in the areas of employment, labor relations, and school discrimination. Thus, where a Negro buyer meets the objective requirements ”of a real estate developer so that a sale would in all likelihood have been consummated were he white and where statistics show that all of a substantial number of lots in the development have been sold only to whites, a prima facie inference of discrimination arises as a matter of law if his offer to purchase is refused. If the inference is not satisfactorily explained away, the fact of discrimination becomes established. See Newbern v. Lake Lorelei, Inc., 308 F.Supp. 407, 417 (S.D.Ohio 1968).

Here, the defendants admittedly followed a whites-only policy in sales of real estate prior to 1965. John Matthews testified to a change of heart and a willingness, finally, to comply with the law and the obligations of good citizenship, but this change of heart was demonstrated only by a self-serving office memorandum written in 1970 and entitled, perhaps significantly, “Ever Tightening Lakewood Controls As It Affects Integration.” Those tightened controls were exercised through approved builders, none of whom were black and none of whom would break the housing segregation barrier by building a home for a black family in an all-white neighborhood. The Matthews Company made no public announcement of their new devotion to integration, and the record shows that no black man or woman had ever acquired property in any subdivision of the Matthews Company up to and including the time of trial.

The special handling of the efforts of Mr. and Mrs. Williams to purchase a lot in Lakewood, in the light of this factual background, became nothing more than a “run-around” when John Matthews — ■' the sole person having the authority in the company to deal with black persons (although other officers and employees might deal with white persons) — left the United States for an extended tour in the Orient. This undisputed evidence establishes a prima facie case of discrimination.

We do not think that the trial judge reached a contrary determination as to these obvious facts of discrimination. rather, he apparently assumed that subjective good intentions could overcome the prima facie showing of discrimination, and concluded:

[T]his “personal handling” procedure was not intended, or used; as a device to delay integration. In fact the defendants at the time they were first contacted by plaintiff wanted to get the integration started as soon as possible.

That conclusion is error. A prima facie case of discrimination resting as it does both on statistical evidence and real evidence cannot be overcome by defendant-Matthews’ platitude that “integration is the law of the land and our Board of Directors feels that integration is morally right.” Statistics, of course, are not everything, “but nothing is as emphatic as zero.” United States v. Hinds County School Board, 417 F.2d 852, 858 (5th Cir. 1969), cert. denied, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 531 (1970). When a plaintiff makes a prima facie case of discrimination, as here, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the plaintiff’s rejection. See McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802.

We need then examine the grounds asserted in the district court’s opinion for his conclusion that no unlawful discrimination existed in this . case. The trial court determined that Williams was in fact offered the opportunity to purchase on terms available to all persons. The conclusion, as we understand the trial court’s opinion, was premised upon the proposal by Matthews to Williams to purchase a lot through an approved builder. In this connection the court also ruled that the procedure of selling to builders only was not adopted because of racial considerations nor was it used, or intended to be used, as a ruse by which to exclude blacks.

Assuming that the requirement of purchasing only through approved builders did not constitute a ruse, this procedure was fraught with racial overtones and cannot overcome the prima facie case of racial discrimination. Here only white builders were approved. The Matthews Company had not communicated notice of any change of policy regarding its segregation practices to these builders. No white builder had ever contracted to build or buy a home for a black person in that subdivision. The Williamses had sought and been refused a lot through white builders. A black contractor selected by Williams found himself in limbo, neither accepted, nor rejected by the 'Matthews. The undisputed facts show that under the circumstances the alleged procedure of selling lots only to builders carried racial overtones, and such a policy, even though neutral on its face, cannot stand if it in its operation serves to discriminate on the basis of race. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

The policy adopted by the Matthews Company to sell lots only through approved builders served here to discriminate against Williams in obtaining a lot. That policy therefore cannot stand nor can it excuse the racial discrimination shown in this case. See McDonnell Douglas and Griggs, supra.

Finally, the trial court’s suggestion — that any taint of discrimination is avoided in this case because “the practice of selling to builders has a demonstrated business reason for its retention” — also rests upon a legally unsound basis and must be rejected. In order to rely upon a “business necessity” justification for a business policy which, though fair in form, is 'discriminatory in operation, a defendant must demonstrate the absence of any acceptable alternative that will accomplish the same business goal with less discrimination. See Wallace v. Debron Corporation, 494 F.2d 674 (8th Cir., filed Mar. 28, 1974); United States v. St. Louis-San Francisco Railway Co., 464 F.2d 301, 308 (8th Cir. 1972). Here, of course, a number of alternatives are available to avoid the racial effect of the “builders-only” policy. For example, the Matthews Company could sell building lots directly to black persons who indicate a willingness to hire an available competent contractor, black or white, who will build a home in' the subdivision for a black person, or Matthews could direct that its approved builders make the building lots they buy from Matthews available without discrimination to all persons regardless of race. The application of the “business necessity” doctrine offered here, however, rests upon pure chimera.

III.

It is surely true that, on a showing of discrimination towards himself and other members of his race, a plaintiff may appropriately file and prosecute a class action on behalf of himself and other members of his race under Fed.R.Civ.P. 23(a). See Newbern v. Lake Lorelei, Inc., 308 F.Supp. 407, 416 (S.D.Ohio 1968) (citing eases). Although we do find some evidence in the ease which might have justified a class action, the court determined that plaintiff has failed to show that other black persons have attempted and been denied the right to purchase property in Lakewood or other Matthews Company subdivisions. This finding afforded an appropriate basis fpr the dismissal of the class action, since one family is not a class and the burden is on the plaintiff to justify permitting the suit to proceed as a class action. See Cash v. Swifton Land Corporation, 434 F.2d 569 (6th Cir. 1970); Crim v. Glover, 338 F.Supp. 823 (S.D.Ohio 1972).

IV.

Accordingly, the plaintiff is entitled under 42 U.S.C. § 3612(c) to the following relief: (1) a declaratory judgment of his rights to purchase property in any subdivision developed by the Matthews Company; (2) counsel fees on trial and on appeal, see Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971); (3) court costs; (4) actual damages for the defendant’s failure to sell Williams a lot during the spring of 1970, to include such sum as will properly compensate plaintiff for his deprivation of civil rights and for humiliation suffered by him, see Seaton v. Sky Realty Company, Inc., 491 F.2d 634 (7th Cir. 1974); and (5) punitive damages not to exceed $1,000. See generally Smith v. Sol D. Adler Realty Company, 436 F.2d 344 (7th Cir. 1971).

We reverse and remand this case for the entry of a judgment consistent with this opinion.

Reversed and remanded.

      . 42 U.S.C. § 1981 provides:
      All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
      42 U.S.C. § 1982 provides :
      All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, xjurchase, lease, sell, hold, and convey real and personal property.

      . 42 U.S.C. § 3604 provides in relevant part:
      [I] t shall be unlawful—
      (a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, or national origin.
      (b) To discriminate against any 'person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, or national origin.
      “Dwelling” as used in § 3604 is defined in 42 U.S.C. § 3602(b) as:
      (b) “Dwelling” means any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.

      . 28 U.S.C. § 1343 provides in relevant part:
      The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person :
      * * * * * *
      (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
      (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.

      . 42 U.S.C. § 3612 provides in relevant part:
      (a) The rights granted by sections 3603, 3604, 3605, and 3606 of this title may be enforced by civil actions in appropriate United States district courts without regard to the amount in controversy and in appropriate State or local courts of general jurisdiction. A civil action shall be commenced within one hundred and eighty days after the alleged discriminatory housing practice occurred: Provided, however, That the court shall continue such civil case brought pursuant to this section or section 3610(d) of this title from time to time before bringing it to trial if the court believes that the conciliation efforts of the Secretary or a State or local agency are likely to result in satisfactory settlement of the discriminatory housing practice complained of in the complaint made to the Secretary or to the local or State agency and which practice forms the basis for the action in court: And provided, however, That any sale, encumbrance, or rental consummated prior to the issuance of any court order issued under the authority of this Act, and involving a bona fide purchaser, encumbrancer, or tenant without actual notice of the existence of the filing of a complaint or civil action under the provisions of this Act shall not be affected.
      * * * * *
      (c) The court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, and may award to the plaintiff actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees in the case of a prevailing plaintiff: Provided, That the said plaintiff in the opinion of the court is not financially able to assume said attorney’s fees.

      . The office memorandum stated:
      As discussed, the longer we develop residential communities, the more we realize, that more effort on the part of the developer and tighter controls on development seem the only way to achieve pleasant places to live where property values will continue to increase over the years. Cost and square footage restrictions are virtually useless. Plan approval seems the best route but if builders or owners do not want to improve neighborhoods, then plan approval accomplishes little. Thus, wo have returned to the regulation that lots will be sold only to approved builders or to individuals who agree to immediate construction by approved builders. All the above has already been discussed with you and all officials of our Company in great detail.
      As to the integration of Lakewood, our Company realizes that integration is the law of the land and our Board of Directors feels that integration is morally right. Thus, we realize that integration of Lakewood is inevitable and we welcome black residents, the sooner the better.
      On the other hand, we realize that all-white communities, like Lakewood, are extremely sensitive and that great care is necessary if integration is to be accomplished smoothly and without unpleasant incident.
      We also realize that some black people are becoming more militant in their frustration and may wish to cause all the excitement, publicity, harassment, etc. possible, which we feel would be such poor policy for the Negroes and so disruptive to the welfare of this or any other subdivision that, we feel we have a most serious obligation to the community of Lakewood to make every effort to accomplish integration quietly without hurting anyone, black or white, and without lowering Lakewood property values.
      To accomplish this, our Board of Directors has requested me to make a personal case of the first black families who move to Lakewood. Our hope is that these black families can quietly move into an existing home with the least possible fanfare or publicity.
      Whenever any black family asks you about purchasing a home or vacant lot, your referring them to me will be appreciated.

      . See Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970) (citing cases); Marquez v. Omaha District Sales Office, Ford Division, 440 F.2d 1157 (8th Cir. 1971). See generally Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

      . See United States v. Sheet Metal Wkrs. Int. Ass’n, Local U. 36, 416 F.2d 123, 131 (8th Cir. 1969) (citing cases).

      . See Moore v. Board of Ed. of Chidester Sch. Dist. No. 59, Ark., 448 F.2d 709, 711 (8th Cir. 1971) (citing cases).

      . The trial court’s opinion read in part:
      The background statistical case for plaintiff is obviously very strong, but here we are dealing with a particular series of transactions between plaintiff and his wife and the defendants, and unless defendants’ conduct in this instance was at least partially occasioned by racial considerations, plaintiff cannot prevail. The Court is troubled by the fact that defendants did not earlier, much earlier, communicate their change of policy and attitude toward the integration of their subdivisions to the public. And yet, the Court is fully convinced that John Matthews did, as he testified, have a sincere and honest change of attitude, like so many other Southern white businessmen in the early 1960s, and has been honestly convinced since that time that integration is not only legally required but morally right. And this change in attitude became at that time the new business policy of the defendants.
      The Court is concerned that John Matthews decided to make the integration of Lakewood, as indicated by the February 13, 1970, memorandum, a “personal” matter, by, hopefully, directing the first black families into existing homes. This arrangement has implications of special handling that ordinarily would be unacceptable. If this effort to “direct” black families into existing facilities resulted even indirectly in the refusal to sell vacant lots to blacks, then certainly defendants would be denying blacks access to Lakewood on an equal basis with whites. But such was not the ease. Another obvious point: if John Matthews, and the evidence seems to so suggest, does not in fact have the time to keep in fairly constant contact with the day-to-day business of the firm, his attempt to “personally” handle the integration of Lakewood could obviously work to delay integration. However, the Court finds that this “personal handling” procedure was not intended, or used, as a device to delay integration. In fact the defendants at the time they were first contacted by the plaintiff wanted to get the integration of Lakewood started as soon as possible. ,

      . Strong evidence in the record tends to suggest, first, that the Matthews Company did not follow á hard and fast rule of selling only to builders but in fact advertised and sold individual lots to whites, and, second, that this requirement for sale permitted the Matthews Company to pretend cooperation with a black buyer while in fact giving him the brush-off. It stretches credulity to believe that the Matthews Company and its officers did not know that white builders would refuse to buy a lot and build a home for a black person in the Lakewood subdivision.

      . The sincere belief on the part of John Matthews, as found by the trial court, that applicant Williams would likely seek to upset certain covenants and assurances relating to size and costs of construction in the Lakewood development cannot serve as a basis to overturn the prima facie case of race discrimination otherwise apparent in the record. We think it clear that Matthews’ belief rested upon subjective assumption, not upon evidence, for the record is bare of any showing that Williams intended to cause trouble to the developer. Statements of a black attorney, John Walker of Little Kock, Arkansas, attacking the legal validity of these covenants and assurances were made prior to the time Williams first expressed any interest in purchasing a Lakewood lot. Walker’s “legal opinion” can in no way reflect upon the good faith of Williams. Even assuming, arguendo, that it would be legitimate to refuse to sell property to an individual who planned to challenge a developer’s, restrictive covenant or bills of assurance, far more evidence than appears in this record would be required to establish Williams as a “troublemaker” and thus an ineligible land purchaser in the eyes of a reasonable real estate developer.


author: SPRECHER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul BROWN et al., Defendants-Appellants.
    No. 74-1182.
    United States Court of Appeals, Seventh Circuit.
    Argued June 6, 1974.
    Decided July 3, 1974.
    Rehearing Denied July 25, 1974.

      Edward M. Genson, Allan A. Ackerman, Chicago, 111., for defendants-appellants.
    James R. Thompson, U. S. Atty., Michael D. Groark, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
    Before CLARK, Associate Justice, SPRECHER, Circuit Judge, and BEAM-ER, District Judge.

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

       District Judge George N. Beamer of the Northern District of Indiana is sitting by designation.

   SPRECHER, Circuit Judge.

This appeal pivots upon the validity of a warrantless “border search” made at Chicago which resulted in the discovery of a large quantity of cocaine.

I

Seven defendants, including three men (Paul Brown, Cometas Dilanjian and Thomas Sheridan) and two sets of sisters (Mary Ann and Susan Prader, and Ellen Sue and Sandra Stewart) were indicted in Count I for conspiracy in violation of 21 U.S.C. § 963 to import cocaine into the United States in violation of 21 U.S.C. § 952(a) and to distribute cocaine outside the United States knowing that it would be imported in violation of 21 U.S.C. § 959. In addition, the Prader sisters were indicted in Count II of importing 1,917.3 grams of cocaine in violation of section 952(a) and the Stewart sisters were indicted in Count III of distributing the same quantity knowing it would be imported, in violation of section 959.

The indictment alleged and all the defendants admitted at the time of pleading guilty to all counts that in March, 1973, the men and the Prader sisters discussed at Chicago, Illinois, the importation of cocaine; that on April 2, 1973, the Praders traveled by airplane from Chicago to Acapulco, Mexico; that on April 5, the Stewarts traveled from Peru, South America, where they received the cocaine, to Acapulco, where they delivered it to the Praders a few days later; and that on April 8, the Praders traveled by airplane from Acapulco to Chicago, carrying the 1,917.3 grams on their persons.

Mary Ann Prader had passed through Customs inspection at O’Hare International Airport on April 8 and was waiting a short distance from the inspection area for her sister. As Susan Prader was going through the Customs line, Customs Patrol Officer Goodson observed that her dress or skirt “fitted rather tightly at the waistline and then sort of flared out to a length to perhaps to her ankles” resulting in a bulge in the area of her stomach. He became suspicious because the clothing did not appear normal on her slender frame. Goodson then escorted Susan to a private search room and sought the assistance of Sharon Holihan and Violet Anderson, two female employees of the Customs Service.

According to Mrs Holihan’s testimony at the suppression hearing, “we were told by . Goodson that he was suspicious of Susan Prader because of her long clothing and mostly because she appeared to have a bulge on her abdomen below her waist.” When the three women were alone, the Customs inspectors advised Susan that they were concerned with the bulge in the area of her waist or midriff, whereupon she voluntarily unzipped her skirt, pushed it four to six inches below her waist to expose her abdomen, then held the skirt at that point for a few seconds and brought it back up.

Because this movement was done without any instructions from the Customs inspectors and because Susan “pushed the skirt down and then stopped . and brought it back up,” Mrs. Holihan “became suspicious that perhaps she had something underneath her skirt further down on her legs.” Without removing any clothing, Mrs. Holihan lifted Susan’s skirt up from the bottom to above her knees where she discovered packages bandaged or taped to her legs. One of the .inspectors then left the private room and advised Goodson of their discovery. After the contents of the packages were field tested and found positive, Goodson identified himself to Mary Ann and took her back to the inspection room, where similar packages were found taped to her legs.

An evidentiary hearing was held on December 19, 1973 upon the motions of Susan and Mary Prader to suppress the items seized from their persons at O’Hare Airport on April 8. On December 27, the court denied the motions in a written opinion in which it relied in part upon United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

On January 16, 1974 the three male defendants and the Prader sisters pleaded guilty and on the following day the Stewarts also pleaded guilty. In accepting the Praders’ pleas, the district judge said that “I think you could preserve your right to appeal on . [the motion to suppress] even if you plead guilty, subject to that condition.”

The government did not acquiesce in the “condition” purporting to preserve the right to appeal the suppression question. In fact the prosecutor pointed out that if pleading guilty did not result in the waiver of the right to appeal “every defendant that comes into the building [for] sentencing to see what they get, and if they don’t like what they get . . . then they take it up on appeal.”

The three male defendants were each sentenced to three years’ imprisonment, Susan Prader and Sandra Stewart each to one year, and Mary Ann Prader and Ellen Sue Stewart each to six months’ imprisonment.

All seven defendants appealed.1 The Praders argued that their motions to suppress should have been granted. The other defendants argued the voluntariness of their guilty pleas and their standing to seek suppression of the evidence found on the persons of the Pradera.

The government argued that the Pradera waived the suppression question by pleading guilty, that the other defendants had no standing to raise it, that in any event the suppression motions were properly denied, and that the guilty pleas were voluntary and in full compliance with Fed.R.Crim.P. 11.

II

The facts of this case in relation to the suppression question are quite similar to those in United States v. Cox, 464 F.2d 937, 944 (6th Cir. 1972), where the Sixth Circuit observed that “the district court allowed defendants the best of two worlds” in that “[t]hey were allowed to plead guilty to reduced charges, while reserving their right to appeal as if they had maintained their innocence through trial.” The court concluded that the procedure of allowing an appeal on non-jurisdictional grounds following intelligent and voluntary pleas of guilty violated public and judicial policy and “will not be countenanced in the future in this Circuit.” 464 F.2d at 945. Nevertheless the court decided in that case to honor the agreement entered into between the defendants and the prosecutor and accepted by the district court, as being required by the plea bargaining process. In the present case the prosecutor did not consent to the availability of the right of appeal as part of any plea bargaining.

The rationale of Cox appears to find support in Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), where the Supreme Court said:

We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann. (Footnote supplied.)

However, as the Cox court, we hesitate to refuse to consider the merits of the suppression question inasmuch as the district court held out some reason for the defendants to believe that they were pleading guilty “subject to that condition,” albeit lacking the consent of the prosecutor to that condition. Cf. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). We proceed therefore to a consideration of the propriety of the district court’s denial of the motions for suppression.

Ill

Although Chicago is more than 1200 miles from the Mexican border, the search of the Prader sisters at O'Hare International Airport upon their arrival on a nonstop flight from Acapulco constituted a border search.

19 U.S.C. § 482 provides in part as follows:

Any of the officers or persons authorized to board or search vessels may stop, search, and examine any . . . person, on . whom he or they shall suspect there is merchandise which shall have been introduced into the United States in any manner contrary to law . . . ; and if any such officer or other person so authorized shall find any merchandise on or about any such . . . person . which he shall have reasonable cause to believe ... to have been unlawfully introduced into the United States . . ., he shall seize and secure the same for trial.
“When a person or vehicle is detained at the border just after entering the Country, the agent’s statutory authority to search is virtually unfettered except perhaps as to due process concerning the manner, not the cause, of the search. . . . Presumably, they are limited only by common standards of decency and propriety.” United States v. Storm, 480 F.2d 701, 704 (5th Cir. 1973). “Border searches, absent search warrants or probable cause, have been uniformly upheld by the Courts as long as the customs agents have had a reasonable suspicion of violations of the customs laws.” United States v. Thompson, 475 F.2d 1359, 1362 (5th Cir. 1973).
What is required to be balanced in any particular case is the level of suspicion of the agent against the level of indignity perpetrated upon the traveler. “Mere suspicion” does not justify a search within body cavities, Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967), nor the administration of emetics, United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970). Although both of those cases obviously involved a greater indignity than simply a strip search, Henderson suggested that strip searches should require a “real suspicion,” 390 F.2d at 808, and Guadalupe-Garza defined “real suspicion.”
“Real suspicion” justifying the initiation of a strip search is subjective suspicion supported by objective, articulable facts that would reasonably lead an experienced, prudent customs official to suspect that a particular person seeking to cross our border is concealing something on his body for the purpose of transporting it into the United States contrary to law.
421 F.2d at 879.

The indignity in the present case did not rise to a stripping or strip search. Susan Prader, in a private room in the presence of two other women, voluntarily pulled her skirt a few inches down from her waist and bared her midriff for a few seconds. Shortly thereafter one of the female inspectors lifted Susan’s ankle-length skirt to a point just above her knees. She was not requested to nor did she strip, nor did the female inspectors strip her.

The suspicion developed first in the mind of the male Customs inspector who found an incongruity in a long, flared skirt with a waistline bulge on a slender girl.

In United States v. Berard, 281 F.Supp. 328 (D.Mass.1968), suspicious bulges on the persons of two travelers were found to warrant the opening of their shirts, which revealed them both to be bound in tape from waist to armpits with plastic bags of heroin. In United States v. Glaziou, 402 F.2d 8 (2d Cir. 1968), nervousness and a waistline bulge justified a touching and squeezing search which revealed heroin. In Shorter v. United States, 469 F.2d 61, 64 (9th Cir. 1972), heavy clothing in warm weather and a “bulge, or irregularity, in his shirt at the waist line” provided a sufficient basis for requiring the traveler to remove his overcoat and suit coat and to empty his pockets, whereupon he voluntarily lifted his shirt, revealing a waist girdle with plastic bags of heroin.

In United States v. Price, 472 F.2d 573 (9th Cir. 1973), a strip search had been conducted on the basis of a female traveler’s nervousness during questioning and a suspicious bulge around her waist. Heroin and cocaine were eventually found concealed between.her lower limbs. A majority of the court found the search to be excessive since early in the examination it became apparent that the suspicious bulge was simply body fat. In a dissenting opinion, Judge Kilkenny pointed out the distinction between a strip search and a body cavity search and concluded that the inspectors had a “real suspicion” sufficient to conduct the subsequent strip search.

In the present ease there was no strip search. Susan ' Prader testified that none of her clothing had been removed. In addition, although Susan’s voluntary baring of her midriff had indicated, as in Price, that the bulge at her waist was not contraband, that very act developed a new suspicion in the minds of the inspectors. As Mrs. Holihan testified, the quick, unrequested lowering of her skirt top a few inches but no lower, followed by the rapid pulling of the skirt back up, caused Mrs. Holihan to become suspicious “that perhaps she had something underneath her skirt further down on her legs.” We conclude that the inspectors harbored “real suspicion.” Both Goodson and Holihan were experienced Customs inspectors, Goodson for thirteen years and Holihan for three years. The district judge who observed and heard the testimony concluded:

The patrol officer had a reasonable suspicion concerning what might be on Susan’s person, and this justified detaining her for a reasonable search of her' person beyond the specified part which had aroused suspicion. Furthermore the experenced searching agent acquired her own suspicion because of the defendant’s actions during the initial search.
The further search turned up' the packages, and these in turn afforded the patrol officer with reasonable grounds to suspect sister Mary Ann who had been passed previously. We see no reaon why this subsequent suspicion need to occur only while the suspect was within the confines of the inspection area; Mary Ann was still inside the International Building, a mere fifteen feet outside the door of the inspection area, and she admittedly had no intention of leaving the building before her sister.

In United States v. Glaziou, 402 F.2d 8, 14-15 (2d Cir. 1968), two seamen had exited the pier gatehouse and were 200 feet up the street when the Customs officer noticed the waistline bulge around one of them. The court approvéd the search of both of them, concluding that “the officers were justified in searching Lemieux as .soon as the contraband was uncovered on his companion.” Here the material found on Susan was field tested and determined to be cocaine before Mary Ann was searched. The search of Mary Ann consisted also of only the lifting up of her skirt.

Upon the question of the possible indignity suffered by the sisters, the district judge found:

Nor was this an offensive invasion of defendants’ privacy. . . . The two searches which produced the results could have been performed by a thorough pat-down in public, particularly if defendants had not been wearing the long full skirts which in part caused the suspicion which led to the searches in the first place.

Actually the skirts of each girl were lifted in a completely private room in the presence only of the two female inspectors.

We conclude that the level of suspicion was high enough to justify the relatively dignified search to which both girls were subjected. The trial court correctly denied the motions to suppress the evidence obtained in the searches.

IV

Inasmuch as we find the searches and seizures relating to the Praders to have been justified, we need not consider the standing of the other defendants to challenge the evidence produced thereby. Cf. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

In regard to the interrogation of the defendants by the court before accepting their guilty pleas, we conclude that the court adequately addressed each defendant personally and determined that the plea was made voluntarily with understanding of the charge and the consequences of the plea as required by Rule 11 as it read at the time of the trial and as it now reads.

Specifically, the Stewart sisters complained that they were not advised of the three-year special parole term, but prior to sentencing when they still had the opportunity to withdraw their guilty pleas, the court discussed the parole term in the presence of all defendants and their counsel.

In regard to defendant Sheridan, it was argued that it was not sufficiently determined whether his known use of methadone influenced his plea. The record shows that the court spent a relatively long period of time in the presence of all of the defendants at the acceptance of the pleas and again at sentencing and addressed all of them, including Sheridan, personally on several occasions. At sentencing, a representative of the Methadone Maintenance Institute was present and said:

Mr. Sheridan is a patient at the Methadone Maintenance Institute. He has been very faithful in his attendance at the clinic. We have weekly therapy sessions. Mr. Sheridan has come to those sessions on a sort of regular basis. We feel that he is trying very hard to participate well in the program. We feel that his regular attendance is testimony to that fact.

Whereupon the following took place :

THE COURT: Well, Mr. Sheridan’s statement to the probation officer is, apparently, that he was not getting very much treatment from your organization and apparently wasn’t benefitting very much from it.
Is that correct ?
DEFENDANT SHERIDAN: No sir. That was the Veterans Administration when I was under the program over there. I switched over to the Methadone Maintenance Institute which is much better, really.
THE COURT: When did you switch over?
DEFENDANT SHERIDAN: I started in August at the VA and I switched over in about September, I believe.
THE COURT: Of’73?
DEFENDANT SHERIDAN: Yes.

Inasmuch as Sheridan never contended that he was under the influence of drugs at the time of his plea, in view of his satisfactory treatment for about five-months prior to his plea, and because of the court’s close personal observation of him, we conclude that Sheridan’s guilty plea, as that of the other defendants, was voluntary.

Convictions of all defendants are affirmed.

Affirmed.

      . Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

      . “. . . [A] search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico Oity would clearly be the functional equivalent of a border search.” Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973).

      . On April 23, 1974, the Supreme Court approved and transmitted to Congress, to take effect on August 1, 1974 if approved, amendments to the Federal Rules of Criminal Procedure, including an amended Rule 11. See Moody v. United States, 497 F.2d 359 (7th Cir. 1974).


author: HILL, Circuit Judge.

text:
    Geraldine DUNCAN, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Defendant-Appellee.
    No. 73-1941.
    United States Court of Appeals, Tenth Circuit.
    July 2, 1974.
    Rehearing Denied July 25, 1974.

      David H. Sanders, Tulsa, Okl., for plaintiff-appellant.
    Bert M. Jones, Tulsa, Okl., for defendant-appellee.
    Before HILL, SETH and DOYLE, Circuit Judges.
   HILL, Circuit Judge.

This appeal involves the right of a wife, under the law of Oklahoma prior to April 27, 1973, to recover damages from a third party tort feasor for loss of consortium, resulting from personal injuries sustained by her husband.

Appellant Geraldine Duncan and her husband are Oklahoma residents. Appellee General Motors Corporation is a Delaware corporation licensed to do business in the State of Oklahoma. On April 25, 1971, appellant’s husband sustained injuries rendering him a paraplegic when the automobile he was driving, a 1970 Buick manufactured by appellee, collided with a truck tractor on an Oklahoma highway.

On April 23, 1973, appellant instituted suit against appellee in the United States District Court for the Northern District of Oklahoma. The complaint alleged the vehicle appellant’s husband was driving contained a defectively manufactured braking mechanism, constituting a breach of implied warranty of fitness. Damages for loss of consortium were requested.

Appellee moved to dismiss on the grounds the complaint failed to state a claim upon which relief could be granted because the common law of Oklahoma did not allow a wife to recover for loss of consortium. Appellant opposed the motion on two grounds. First, she claimed, denial of the right to sue for loss of consortium, when applied to a wife but not a husband, was a sex-based classification violative of a wife’s right to equal protection of the law under the Fourteenth Amendment to the Constitution. Secondly, she claimed 32 O.S.A. § 15, the married women’s rights statute, recently amended to allow wives to sue for loss of consortium and effective as of April 27, 1973, was a procedural statute that should be applied retroactively. The trial court granted appellee’s motion to dismiss.

Before the'recent amendment to 32 O.S.A. § 15 in 1973, Oklahoma did not allow a wife to stle for loss of consortium because of negligent injury to her husband. See, e. g., Karriman v. Orthopedic Clinic, 488 P.2d 1250 (Okl.1971); Nelson v. A. M. Lockett & Co., 206 Okl. 334, 243 P.2d 719 (1952); Howard v. Verdigris Valley Elec. Cooperative, Inc., 201 Okl. 504, 207 P.2d 784 (1949). In the reciprocal situation, however, the husband could recover for loss of consortium for negligent injury to his wife. See, e. g., Ruland v. Zenith Const. Co., 283 P.2d 540 (Okl.1955).

Until 1950, in fact, wives were denied this right in the majority, if not all, of the states. Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811 (1950), cert. den’d, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624, however, established a wife’s right to sue for loss of consortium for negligent conduct. Although courts confronted with the problem since then have split on the issue, the modern trend, as evidenced by the many decisions to that effect, allows a wife the right to sue for loss of consortium.

Appellee contends the issue already has been decided in its favor by this court in Lunow v. Fairchance Lumber Co., 389 F.2d 212 (10th Cir. 1968), cert. den’d, 392 U.S. 908, 88 S.Ct. 2062, 20 L.Ed.2d 1366; and Criqui v. Blaw-Knox Corp., 318 F.2d 811 (10th Cir. 1963). In Lunow the wife, an Oklahoma resident, brought a loss of consortium action for injuries sustained by her husband, which injuries were compensable under the Oklahoma Workmen’s Compensation Act. The defendant moved to dismiss on the grounds (1) workmen’s compensation benefits were exclusive, and (2) denial of a wife’s right to sue for loss of consortium was consistent with due process. The trial court granted the motion and this court affirmed on the basis of the Workmen’s Compensation Act, without reaching the constitutional issue.

In Criqui, a wife’s loss of consortium action under Kansas law, this court, although recognizing respectable authority to the contrary, denied the wife’s right to sue. The decision was based on Kansas’ substantive law and a belief that a contrary decision should come in the first instance from the Kansas courts.

These cases by no means preclude a different decision today. Both Lunow and Criqui, like the majority of decisions in other jurisdictions, were based on state substantive law. However, where state law is challenged for federal constitutional reasons, as it is here, federal law governs and not state substantive law. Karczewski v. Baltimore & O. R.R., 274 F.Supp. 169 (N.D.Ill.1967). We are therefore not bound to adhere to Oklahoma law if we determine it to be unconstitutional. With this in mind, we now turn to the merits.

Appellant’s main argument is that denial of the right to sue for loss of consortium, when applied to a wife but not a husband, is an equal protection violation. Under the traditional equal protection analysis a sex-based discriminatory rule of state law would be sustained unless it was patently arbitrary and was not rationally related to a legit-inmate governmental interest. See, e. g., Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Miskunas v. Union Carbide Corp., 399 F.2d 847 (7th Cir. 1968), cert. den’d, 393 U.S. 1066, 89 S.Ct. 718, 21 L.Ed.2d 709. It appears, however, that this test is no longer applicable.

In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), the United States Supreme Court noted the increased sensitivity manifested to sex-based classifications, and stated:

In Tit. VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of “race, color, religion, sex, or national origin.” Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act “shall discriminate . . . between employees on the basis of sex.” And § 1 of the Equal Rights Amendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the States for ratification, declares that “[e] quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

The Court then stated:

With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or natural origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. (Emphasis added).

Under either test, we believe the instant classification violates the Fourteenth Amendment’s equal protection clause. Appellee offers no justification, nor is any apparent, to support such dissimilar treatment. Thus, it fails to meet both the criteria of the traditional rational basis test and the demands of strict judicial scrutiny. Appellee does allude to the argument that allowing a wife to sue for loss of consortium raises the possibility of double recovery. We need only mention, however, that this argument has often been rejected where considered in a constitutional context. See, e. g., Karczewski v. Baltimore & O.R.R., supra; Owen v. Illinois Baking Corp., 260 F.Supp. 820 (W.D.Mich.1966). Cf. Hitaffer v. Argonne Co., supra. Nor did the Oklahoma Legislature consider this argument, or any other, persuasive, as is evidenced by the fact it amended the married women’s rights statute to allow a wife the right to sue for loss of consortium.

The intangible segments of the elements comprising the cause of action for loss of consortium are equally precious to both husband and wife. Both have equal rights in the marriage relation, and both should receive equal protection under the law. We find that no legitimate basis exists for the classification present in the instant case, and we conclude that denial of the right to sue for loss of consortium, when applied to a wife but not a husband, is a violation of the wife’s right to equal protection of the law under the Fourteenth Amendment to the Constitution.

Our decision renders it unnecessary to consider appellant’s alternative argument concerning the retroactivity of 32 O.S.A. § 15.

The judgment is reversed.

      . 32 O.S.A. § 15 provides: “Woman shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all her rights as a woman, which her husband does as a man; and for any injury sustained to her reputation, person, property, character or any natural right, her own medical expenses, and Toy reason of loss of consortium, she shall have the same right to appeal in her own name alone to the courts of law or equity for redress and protection that her husband has to appeal in his own name alone.” (Emphasis added).
      The effective date of this amended statute was April 27, four days after appellant filed suit and approximately two years after her husband was injured.

      . Sitaffer was later overruled, on another point, in Smither & Co. v. Coles, 100 U.S.App.D.C. 68, 242 F.2d 220 (1957), cert. den’d, 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1129.

      . See the cases collected in Annot: Wife’s Right Of Action For Loss Of Consortium, 36 A.L.R.3d 900, 908 (1971).

      . Although a constitutional issue was raised in the trial court in Lunow, we stated: “We think the . . . [workmen’s compensation] defense is foremost and decisive, for if a statutory interpretation obviates the necessity for deciding a constitutional issue, we are bound to pursue that course.”

      . See also Title IX of the Education Amendments of 1972, and other statutes; Brenden v. Independent School Dist. 742, 477 F.2d 1292 (8th Cir. 1973).