text:
    ENVIRONMENTAL DEFENSE FUND, INC., et al., Appellants, v. Robert F. FROEHLKE, Secretary of the Army, et al., Appellees.
    No. 72-1628.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 16, 1973.
    Decided April 20, 1973.

      Edward Lee Rogers, Gen. Counsel, East Setauket, N. Y., for appellants.
    Eva R. Datz, Atty., Dept. of Justice, Washington, D. C., for appellees.
    Lyman Field and F. Philip Kirwan, Kansas City, Mo., for intervenors.
    Before HEANEY arid ROSS, Circuit Judges, and BENSON, Chief District Judge.

       District of North Dakota, sitting by designation.

   HEANEY, Circuit Judge.

The primary issue on this appeal is-whether the trial court erred in refusing to enjoin the defendants from proceeding with all activities relating to the construction of the Harry S Truman Dam and Reservoir Project on the Osage River in Missouri, pending the filing of a final Environmental Impact Statement (E.I.S.) by the Corps of Engineers in accordance with § 102(2)(C) of the National Environmental Policy Act of 1969. 42 U.S.C. §§ 4321, 4332(2)(C).

The project was authorized by Congress in 1954. Its basic purpose was to alleviate the flooding of towns and farms along the Osage, Mississippi and Missouri Rivers. The project was reauthorized in 1962 to promote conservation, power development and recreation. The dam, if built according to present design, will consist of an earth-fill embankment about 5,000 feet in length, a concrete structure slightly less than 1,000 feet long, and a dike 7,500 feet in length. Maximum height of the dam will be ninety-six feet above the valley floor. The reservoir will inundate 209,300 acres at full flood control pool and 55,600 acres of land at conservation or multi-purpose level. The reservoir’s capacity is 5,202,000 acre-feet at flood control level. The dam will be located in the vicinity of Warsaw, Missouri, immediately upstream from the Lake of the Ozarks. The expected total cost of the project to the federal government is $234,692,000,'

The first contract was awarded on July 15, 1963, six years prior to the passage of NEPA. By June of 1972, $74,000,000 had been expended for planning, land acquisition, road relocation and construction.

In March of 1972, the plaintiffs initiated this action in the United States District Court for the Western District of Missouri, seeking to enjoin the defendants from proceeding with the project. They contended that the defendants were proceeding with the project in violation of NEPA, the Fish and Wildlife Coordination Act of 1934, 16 U.S.C. § 661 et seq.; the Environmental Improvement Act of 1970, 42 U.S.C. § 4371; the Water Bank Act of 1970, 16 U.S.C. § 1301 et seq.; various other statutes and the United States Constitution. The principal violation alleged was the failure to prepare and file an E.I.S. pursuant to § 102(e) of NEPA. The plaintiffs asked the court to enjoin road relocations, land acquisitions, construction activity and all other work on the project until a final E.I.S. was filed in accordance with NEPA.

Carefully directed pretrial proceedings were conducted by the court in March and April, 1972. In May of 1972, the court held an evidentiary hearing on the merits. Thereafter, the parties stipulated that the environmental impact of the project would be significant, particularly with respect to fish fauna, archaeological and paleontological sites, wildlife and waterfowl habitat, mussels, society, agriculture and economics.

The parties further stipulated that certain activities would be halted by the Corps of Engineers pending the completion of a final E.I.S. They agreed: (1) that a draft E.I.S. would be prepared by September 15, 1972, and a final E.I.S. by March 1, 1973; (2) that the plaintiffs could include data, comments and statements as appendices to the studies; and (3) that specified guidelines would be followed by the Corps in preparing the study. They were unable to agree on the crucial question of whether the Corps should be required to cease all activities until the final E.I.S. had been filed and reviewed. That question was left for the court to decide.

The District Court’s judgment, accompanied by a detailed and scholarly memorandum opinion, was entered on September 13, 1972. Environmental Defense Fund, Inc. v. Froehlke, 348 F.Supp. 338 (W.D.Mo.1972). The court held that the plaintiffs were entitled to judicial review of the defendants’ actions, and that the defendants were obligated to comply with the provisions of NEPA in completing the project, even though the project was well under way before NEPA was passed. It found that the Corps had started the preparation of an E.I.S. prior to the commencement of this action and was completing it as fast as the circumstances permitted. It enjoined the defendants from proceeding with certain activities and contracts, including those which the defendants had agreed to defer, but permitted the defendants to continue certain on-going construction activities, road relocations, cemetery relocations, voluntary property acquisitions, and design contracts, pending the filing of a final E.I.S. Moreover, it retained jurisdiction of the matter pending the filing of the final E.I.S.

The court held, however, that the plaintiffs were not entitled to an injunction halting all work on the project pending a final E.I.S. It did so on the grounds that not every violation of NEPA gives rise to a right to blanket injunctive relief. The court stated:

“It is our judgment that the procedures provided for in the final judgment and decree, if and when complied with, will assure full compliance with NEPA and all other applicable law as promptly' as is practicable under the circumstances. It is further our judgment that the issuance of a blanket injunction stopping all construction would not speed the preparation or enhance the probabilities that a sufficient EIS will be prepared. Under these circumstances, we believe that a proper balancing of the factors which must be given appropriate consideration under general equity principles requires that the most substantial costs incident to the termination or suspension or work to an extent greater than that provided in the final judgment and decree should be avoided.”

Environmental Defense Fund, Inc. v. Froehlke, supra at 353. The court gave the following additional reasons for its action :

(1) The work, which will go forward pending the filing of an E.I.S., will only have a minimal environmental impact on the Osage Basin. No work will be done on the dam which will impede the free flow of the river and affect the fish, wildlife and wildfowl habitat in or along the river. The new roads will affect some wildlife habitat, but the old road sites will, in time, partially replace the habitat lost.

(2) The project was commenced six years prior to the passage of NEPA, and a number of contracts have been let pursuant to congressional authorization. Substantial cost would be involved in terminating these contracts. Additional costs would be incurred in start-up costs if the ultimate decision is to proceed. Moreover, the defendants were in various stages of acquiring land, and the cost involved in terminating such acquisitions would be substantial.

(3) The Corps of Engineers was acting in good faith in bringing the project into compliance with NEPA. It began the preparation of a preliminary E.I.S. prior to the initiation of this action. It filed that statement in October, 1972, and committed itself to filing a final E. I.S. by May 1, 1973. It agreed to permit the plaintiffs to file data, comments and statements with the Corps for inclusion in the E.I.S. It also committed itself to follow the guidelines set out by the court in preparing the final E.I.S.

(4) The families involved desire that the cemetery relocations be continued.

We affirm the trial court’s judgment. A trial court must consider all the circumstances in determining whether a project may be permitted to proceed pending the completion of an E.I.S. See, Environmental Defense Fund, Inc., et al. v. Robert F. Froehlke, Secretary of the Army, et al., 473 F.2d 346, at 356, n. 21 (8th Cir. 1972). We recognize that the injunction is the vehicle through which the congressional policy behind NEPA can be effectuated, and that a violation of NEPA in itself may constitute a sufficient demonstration of irreparable harm to entitle a plaintiff to blanket injunctive relief. See, Environmental Defense Fund, et al. v. Tennessee Valley Authority, et al., 468 F.2d 1164 (6th Cir. 1972); Environmental Defense Fund, Inc., et al. v. Robert F. Froehlke, Secretary of the Army, et al., No. LR-71-C-199 (E.D.Ark. March 8, 1973).

Here, we find that the trial court did not abuse its discretion in granting limited injunctive relief. The record bears out the trial court’s finding that the river and life within it would not be harmed while the E.I.S. was being completed, and that only minimal environmental damage would be inflicted on the adjacent land during that period. Moreover, the record supports the trial court’s finding that the road relocations had insignificant environmental effects and had independent economic benefits.

The record also supports the trial court’s conclusion that substantial additional costs would be incurred by the defendants if they were forced to discontinue the project and restart it at a future date. It also convinces us that the amount of money projected to be spent on the project in the intervening period is not sufficient to affect the balance of costs and benefits that must be struck by the defendants and other decision-makers in determining whether or not to continue this project after the final E.I. S. is filed.

In short, we are persuaded that this is not a case where, unless the plaintiffs receive now whatever relief they are entitled to, “there is [a] danger that it will be of little or no value to them or to anyone else when finally obtained.” Lathan v. Volpe, 455 F.2d 1111, 1117 (9th Cir. 1971).

In conclusion, we note that the District Court has retained jurisdiction of this matter. It will thus, if prompt requests are made, have an opportunity to rule on the sufficiency of the new E. I.S. and an opportunity to review, under the arbitrary and capricious test, the decision made by the defendants with respect to proceeding with the project.

Affirmed.

      . The District Court stated :
      “ * * * The question, for example, of to what extent, if any, the requirements of the Fish and Wildlife Coordination Act, 16 United States Code §§ 661 et seq., may be applicable may be presented at some later stage of this case and need not now be decided.”
      Environmental Defense Fund, Inc. v. Froehlke, 348 F.Supp. 338, 364 (W.D.Mo.1972).
      We agree that this issue can be handled at a later stage of this proceeding. See, Environmental Defense Fund, Inc., et al. v. Robert F. Froehlke, Secretary of the Army, et al., 473 F.2d 346, at 355 (8th Cir. 1972).

      . See, Environmental Defense Fund, et al. v. Tennessee Valley Authority, et al., 468 F.2d 1164 (6th Cir. 1972); Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972); Environmental Law Fund v. Volpe, 340 F.Supp. 1328 (N.D.Cal.1972); Morning-side-Lenox Park Assn. v. Volpe, 334 F.Supp. 132 (N.D.Ga.1971); Nolop v. Volpe, 333 F.Supp. 1364 (D.S.D.1971); Guidelines for Federal Agencies Under the National Environmental Policy Act, 36 Fed.Reg. 7724, 7727 (1971). See also, Environmental Defense Fund, Inc., et al., v. Corps of Engineers of the United States Army, et al., 470 F.2d 289 at 292 (8th Cir. 1972).

      . The District Court stated :
      “ * * * Plaintiffs’ implicit concern that the ultimate judgment of Congress may be affected by the amount of previously authorized money that may actually be spent by the time it reviews the EIS is not a proper argument for the judicial forum. * * * ”
      Environmental Defense Fund, Inc. v. Froehlke, supra at 348 F.Supp. 354. We disagree. As the Court in Environmental Defense Fund, et al. v. Tennessee Valley Authority, et al., supra 468 F.2d at 1183, states:
      “ * * * [T]he more time and resources appellants are allowed to invest in this project, the greater becomes the likelihood that compliance with section 102 of the NEPA, and the reconsideration of the project in light of the provisions of section 101, will prove to be merely an empty gesture. Arlington Coalition on Transportation v. Volpe, supra, 458 F.2d at 1327, 1332-1334. * * * "

      As a practical matter, the amount of money already expended on pre-NEPA projects will enter into the calculus of decision-makers détermining whether or not to go ahead with the project. It is a factor which a court must take into account in determining whether to enjoin on-going construction. See, Environmental Defense Fund, Inc., et al., v. Corps of Engineers of the United States Army, et al., supra 470 F.2d at 301.


source: Caselaw Access Project

author: BIGGS, Circuit Judge. GIBBONS, Circuit Judge

license: Public Domain

text:
    Josephine JURINKO and Ida M. Seibert, Appellants, v. EDWIN L. WIEGAND COMPANY, a corporation and Local 1020, UAW, an unincorporated association. Josephine JURINKO and Ida M. Siebert v. EDWIN L. WIEGAND COMPANY, Appellant, a corporation and Local 1020, UAW, an unincorporated association.
    Nos. 72-1043, 72-1044.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 6, 1973.
    Decided April 17, 1973.
    As Amended June 25, 1973.

      Irving L. Bloom, Dent & Bloom, Greensburg, Pa., Robert Allen Sedler, College of Law, University of Kentucky, Lexington, Ky., for cross appellants in No. 72-1043 and appellees in No. 72-1044.
    Arnold D. Wilner, Theodore Goldberg, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, Pa., Roger Edgar, Bryan, Cave, McPheeters & Me-Roberts, St. Louis, Mo., Eric P. Reif, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellees in No. 72-1043 and appellant in No. 72-1044.
    Before BIGGS and GIBBONS, Circuit Judges, and HUYETT, District Judge.
   OPINION OF THE COURT

BIGGS, Circuit Judge.

The plaintiffs-appellees cross-appellants, Mrs. Josephine Jurinko and Mrs. Ida M. Seibert, alleged in Count II of their complaint filed against Edwin L. Wiegand Company (Wiegand) that Wiegand refused to employ them in its factory because they were married women, thereby discriminating against them on the basis of sex in violation of Title YII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e-2(a)(1) Jurisdiction is based on 42 U.S.C. § 2000e-5(f) and 28 U.S.C. §§ 1343(3) and 1331(a).

The Equal Employment Opportunity Commission found probable cause to believe that Wiegand had engaged in a discriminatory employment practice but could not mediate the matter. On February 14, 1969, Wiegand offered employment to Mrs. Jurinko and Mrs. Siebert, but on the advice of a representative of EEOC both rejected the offer. This action was instituted on February 28, 1969, and after trial to the court, Judge Teitelbaum found that Wiegand had no general policy of discriminating against married women, but he did find that Mrs. Jurinko and Mrs. Siebert were discriminated against and that such discrimination was not based on a “bona fide occupational qualification.” Judgment was entered in the plaintiffs’ favor awarding them $15,784 representing back wages, together with an award of an additional sum in the amount of $3,946 for attorney fees. Judge Teitelbaum also directed Wiegand to offer Mrs. Jurinko and Mrs. Siebert employment “at the next nearest opportunity.” ,

Wiegand appealed the court’s judgment at our No. 72-1044, asserting (1) that the plaintiffs’ claims are barred because charges were not filed with the Commission within 90 days of the occurrence of the alleged unlawful employment practice as required by 42 U.S.C. § 2000e-5(d), (2) that the evidence does not support the district court’s conclusion that the plaintiffs were discriminated against on account of their marital status, (3) that if there was such discrimination, it was based on a “bona fide occupational qualification” which the plaintiffs did not satisfy, and (4) that the damages awarded plaintiff Siebert were excessive. The plaintiffs have appealed at our No. 72-1043 insofar as the judgment holds that Wiegand’s general hiring policy for production department jobs did not discriminate against married women and insofar as it denied recovery of back pay after Feb. 14, 1969, and held that plaintiffs’ reinstatement should be as new employees without seniority. It should be noted that the plaintiffs have not appealed from the failure of the district court to treat this suit as a class action under Rule 23, F. R.Civ.P., 28 U.S.C. A pre-trial stipulation was entered into by the parties and filed, and reference will be made to it from time to time. The material facts are substantially uncontested, and as Judge Teitelbaum stated: “[I]t is the inferences to be drawn or not to be drawn from the facts that are the core of the controversy.” 331 F.Supp. at 1185.

According to the stipulation the plaintiffs were employees of Wiegand for a number of years prior to December 10, 1953; that at that time both were discharged from employment because of their respective marriages; that Wiegand’s policy of discharging women upon their marriages and of not hiring married women was instituted at the close of World War II for the purpose of providing jobs for “bread winners” returning after the war and that this policy was lawful at least until July 2, 1965, the effective date of the Civil Rights Act of 1964. In July, 1965, the plaintiffs approached Wiegand’s Personnel Director and requested that they be reinstated in their former jobs. The Personnel Director refused this request, stating they were not entitled to reinstatement and in any event the company was not then hiring employees. Thereafter, on September 7, 1965, Mrs. Jurinko submitted a written application for employment with Wiegand, and Mrs. Seibert submitted a similar request to Wiegand on January 10, 1966. At this time, both plaintiffs were informed that the company was not then hiring any employees but that their applications would be kept on file for future reference. In June, 1966, the plaintiffs again contacted the Personnel Director seeking employment and were again informed that Wiegand was not hiring at that time. The plaintiffs filed a charge of discrimination against Wiegand with the Equal Employment Opportunity Commission on July 29, 1966.

The district court stated as follows in respect to the contention of Wiegand that the charges were not timely filed: “The company contends that because the charge was filed with the Commission more than 90 days after the original meeting in June of 1965, it was untimely, and therefore this Court lacks jurisdiction of this action. Section 2000e-5(d) of 42 U.S.C. does provide that charges with the Commission shall be filed within 90 days of the occurrence of the alleged unlawful employment practice. It is clear, however, that the plaintiffs’ reapplication in June of 1966 represents the occurrence of an alleged unlawful employment practice, and consequently this Court is not without jurisdiction. See Cox v. United States Gypsum Co., 409 F.2d 289 (C.A. 7, 1969).” 331 F.Supp. at 1186, n. 3.

We are in agreement with the district court’s conclusion, for there were three separate and distinct acts, the latter of which occurred within the 90-day period. Therefore the 90-day statutory period commenced to run anew from the last allegedly unlawful employment practice. Molybdenum Corp. of America v. Equal Employment Opportunity Commission, 457 F.2d 935 (10 Cir. 1972). The ground raised by Wiegand, that the plaintiffs’ failed to timely pursue their administrative remedy, is thus without merit.

Turning to the contentions in the matter of the district court’s conclusions regarding discrimination, the statistical evidence and the attitude of Wiegand’s personnel directors are well set out in Judge Teitelbaum’s opinion, 331 F.Supp. at 1186, as follows: “Statistically, the evidence is that (1) at all relevant times the company employed, in production, approximately 900 persons; (2) of these approximately 900 persons, 59 were women on July 2, 1965, 58 on May 15, 1966, 56 on December 31, 1966, and 44 on March 1, 1971; (3) at all relevant times, of the women employed only three were married; (4) at all relevant times, only two married women, other than the plaintiffs, applied for employment in production [It must be noted in this regard that both of these women were hired in January of 1969, after the Commission had notified the plaintiffs of their right to sue Wiegand under the Civil Rights Act.]; and (5) during the period from May 15, 1966 to December 31, 1966, forty-three new employees were hired, all of whom were males. There is no evidence of the qualifications of the forty-three males hired. There is evidence, however, that the plaintiffs’ applications were on file during the period from May 15 to December 31, 1966, that the company was aware of their applications, and that prior experience and a good work record with the company (which each plaintiff had) were qualifications which favored an applicant. Asked why the plaintiffs had not been hired during that period, the then Personnel Director testified that he ‘ * * * really [didn’t] know * *- * ’ but that it ‘ * * * could [have been] many reasons * * *.’ A later Personnel Director testified that the company’s practice of permitting ‘bumping’ (by seniority) for each new job opening in production made it mandatory that new employees be physically able to perform each and every job in production (since the new employees were ultimately ‘bumped’ to the most physically taxing jobs) and that the assumption under which the company operated was that women were physically unable to perform each and every production job. In conclusion, both Personnel Directors testified that the company had not pursued a policy of discrimination against married women.”

On the basis of the above facts, the court concluded: “We do not think however, that the statistical evidence introduced in this case reasonably supports a conclusion that the company’s general hiring policy discriminated against married women. The low number of married women employees of the company must be considered in light of the company’s pre-Civil Rights Act policy and the number of married women who have applied for employment since the termination of that policy. The uncontradicted testimony is that from 1965 through 1968, the plaintiffs were the only married women who applied to the company for work in production. Two others apparently applied in early 1969 and both were offered employment. A general policy of discriminatory hiring cannot logically be concluded. With specific regard to the plaintiffs, however, the evidence of the company’s extensive hiring of men during a period when the plaintiffs, with prior experience and good work records, were actively seeking employment from the company, we think is sufficient to support, if only preponderantly, an unexplained inference of discrimination.” 331 F.Supp. at 1187.

The record shows that if Wiegand did change its prior policy of not employing married women in the production department it kept remarkably silent about it. Its Personnel Director, Bushnell, did state to the union on a form supplied by the Government that the company was obeying the Civil Rights Act of 1964, but Bushnell did not tell the union that the company was “going to be hiring married women from here on in.” Such forms were posted on the bulletin boards, but again, Bushnell never posted any notices that female employees in the production department would no longer be discharged upon marriage. Nevertheless, we cannot say that the district court’s conclusion that no general discriminatory hiring policy existed was unwarranted.

Nor was the evidence insufficient to support the finding of a violation of Title VII as to these particular plaintiffs. The evidence, especially the fact that during the six month period following the plaintiffs’ application (and when the plaintiffs were told that the company was not then hiring), 43 new male employees were hired despite the facts of plaintiffs’ prior experience and good work records with the company, does support an inference of discrimination as the district court found. Plaintiffs made out a prima facie case of unlawful discrimination, thereby shifting the onus of going forward with evidence to Wiegand. As was said in Hodgson v. First Federal Savings and Loan Association of Broward County, Florida, 455 F. 2d 818, 822 (5 Cir. 1972), “In discrimination cases the law with respect to burden of proof is well settled. The plaintiff is required to make out a prima facie case of unlawful discrimination at which point the burden shifts to the defendant to justify the existence of any disparities. See, e.g., Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Muniz v. Beto, 434 F.2d 697 (CA 5, 1970); Weeks v. Southern Bell Telephone and Telegraph Company, 408 F.2d 228 (CA 5, 1969); Gates v. Georgia-Pacific Corporation, 326 F.Supp. 397 (D.C.D.Or.1970). Once the plaintiff has made out his prima facie case we look to the defendant for an explanation since he is in a position to know whether he failed to hire a person for reasons which would exonerate him.” See also United States v. Hayes International Corporation, 456 F.2d 112 (5 Cir. 1971). In the case at bar, Wiegand was unable to offer any explanation for its having filled its 43 job vacancies solely with men to the exclusion of the plaintiffs, and it failed to rebut the inference, i.e., prima facie case, of discrimination. That the plaintiffs may not have been physically qualified to perform all jobs in the factory is not relevant to this issue, for the company did not determine this while plaintiffs’ applications were pending nor did it assert this as a reason for not hiring the plaintiffs. Nor are the two conclusions concerning the absence of a general policy of discrimination but the presence of discrimination against these plaintiffs inconsistent.

Wiegand originally took the position that discrimination against married females was not discrimination “on the basis of sex within the meaning of the Act.” This position was, of course, dropped in the light of Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971). In the Phillips case the Supreme Court made it clear that under Title VII of the Act, 42 U.S.C. § 2000e-2, an employer may not refuse to hire women with preschool age children while hiring men with such children. The facts of the Phillips case are somewhat different from those of the ease at bar but the analogy between Phillips and the instant case is plain. Employment practices which vary in their applicability to married females and married males constitute discrimination on the basis of sex, the only distinguishing characteristic being the sex of the married persons. A different standard is clearly applied to men than to women. See Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7 Cir.1971), cert. denied 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971). Wiegand now argues, however, that the plaintiffs failed to prove discrimination on the basis of sex since no showing was made as to whether the men hired while the plaintiffs’ applications were pending were married. Wiegand’s point is well taken, and we agree that the plaintiffs did not make out a case of sex discrimination based on their status as married women. Discrimination against married women constitutes discrimination on the basis of sex only if a different standard, i. e., the marital status of the person, has been applied to men and women. Absent proof of the standard applied to men, obviously the plaintiffs have not established that such standard differs from the one applied to women.

Although the judgment therefore cannot stand on the theory that the plaintiffs were discriminated against because they were married women, nevertheless, as discussed above, the evidence is sufficient to support the judgment on the theory that the plaintiffs were discriminated against because of their status as women. We recognize that the latter theory was not overtly an issue in the case, for the complaint alleged discrimination against married women and discrimination against women as such was not included in the list of contested issues contained in the pre-trial stipulation. An appellate court, however, may uphold a judgment on any theory which finds support in the record and may affirm the decision of a lower court if the result is correct “although the lower court relied upon a wrong ground or gave a wrong reason.” Under Rule 15(b), F.R.Civ.P., 28 U.S.C., a liberal provision is made for amendments to conform the pleadings to the evidence, and this court may consider issues so raised even though no formal application is made to amend. See Underwriters Salvage Co. of New York v. Davis and Shaw Furniture Co., 198 F.2d 450, 453 (10 Cir.1952). “The fact that this involves a change in the . legal theory of the action, is immaterial so long as the opposing party has not been prejudiced in presenting his case.” Nor do we think that the pretrial stipulation prevents this court from applying proper legal principles to the facts disclosed by the proof. The same considerations which govern under Rule 15(b) should also control the determination of whether a different theory is foreclosed by the stipulation, that is whether the defendant would be prejudiced, i. e., whether it had a fair opportunity to defend and whether it could offer any additional evidence on the different theory.

In the case at bar, we see no way in which Wiegand’s presentation of its case could have been prejudiced. There is no dispute as to the essential facts, only the inferences therefrom. Wiegand had full opportunity to justify its failure to hire the plaintiffs. Moreover, the company’s main line of defense to the plaintiffs’ alleged theory of discrimination against them on account of their status as married women was that women as a class were physically unable to perform each and every production job. See note 11, supra, for an explanation of the company’s policy which it contended set up the so-called “bona fide occupational qualification.” This defense is irrelevant to the issue of discrimination against women on account of their marital status, but it is relevant to the theory now being considered, discrimination against women as a class and the plaintiffs as members of this class. We therefore hold that the conclusion of the district court that the plaintiffs were discriminated against must be affirmed, albeit on a different theory than that relied upon below.

As to damages, the district judge stated: “Damages are computed as follows. The parties have stipulated that if the plaintiffs had been employed by the company for the years 1966, 1967 and 1968, Mrs. Jurinko and Mrs. Seibert would have earned $5,127.00, $5,855.00 and $5,959.00, and $5,099.00, $5,855.00 and $5,959.00, respectively. For the period from July of 1966 to February of 1969, Mrs. Jurinko would have earned a total of approximately $14,377.00 and Mrs. Seibert would have earned a total of approximately $14,363.00. In assessing back pay, however, § 706(g) of the Civil Rights Act requires that, ‘ * * [I]nterim earnings or amounts earnable with reasonable diligence by * * * persons discriminated against shall operate to reduce the back pay otherwise allocable.’ 42 U.S.C. § 2000e-5(g). The parties have also stipulated that during the period from July of 1966 to February of 1969 Mrs. Jurinko, working elsewhere, made a total of $6,478.00. Reducing $14,377.00 by $6,478.00 results in damages in the amount of $7,899.00 to Mrs. Jurinko. Mrs. Seibert, on the other hand, did not work during this period. While she testified that she undertook some efforts to obtain other employment, we think that Mrs. Jurinko’s successful efforts are a more accurate measure of ‘amounts earnable with reasonable diligence.’ The amount of Mrs. Seibert’s damages, then, are $14,363.00 less $6,478.00, or $7,885.00. In addition, the plaintiffs are to be offered employment in production with the company, of course, as new employees. An appropriate Order will be entered.” 331 F.Supp. at 1188.

Section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), authorizes appropriate judicial relief from unlawful discriminatory practices. “This grant of authority should be broadly read and applied so as to effectively terminate the practice and make its victims whole,” Bowe v. Colgate Palmolive Company, 416 F.2d 711, 721 (7 Cir. 1969), and we believe that courts have a duty to grant relief which so far as possible eliminates the discriminatory effects of the past as well as bars like discrimination in the future. Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965).

We can perceive no basis for the trial court to have refused to award back seniority or for its conclusion that “the plaintiffs are to be offered employment in production with the company, of course, as new employees.” Seniority is, of course, of great importance to production workers for it determines both opportunities for job advancement and the order of layoff in the case of a reduction in a company’s operating forces. It is our view that the plaintiffs are entitled to seniority and back pay dating from the time of the discriminatory employment practice up to the time they are actually reinstated. Only in this way will the present effects of the past discrimination be eliminated.

The trial court refused to accept this view, having found that the “discrimination ceased in February of 1969 when the company finally offered the plaintiffs employment,” for the “rejection of the offers was not within the control of the company and should not work to its disadvantage.” We cannot agree with this position. The terms of the 1969 job offers were within Wiegand’s control, and it did not offer the plaintiffs back seniority or back pay. The offer that was made did not rectify the effects of its past discrimination, and the plaintiffs were under no duty to accept such an offer. See Sprogis v. United Air Lines, supra. Even though the discrimination ceased with the job offers, as the district court found, the effects of such discrimination did not cease. Under the circumstances of this case, it is the latter which is the more significant factor in formulating an appropriate remedy. While it is true that acceptance of these job offers would have mitigated damages, plaintiffs did not act unreasonably in refusing the offers. Thus “amounts earnable with reasonable diligence” can not be equated with a compulsion to accept Wiegand’s offer, but rather, must be determined as to post February, 1969 earnings by the district court on remand.

Lastly, we do not think that the damages awarded to Seibert were excessive. The district court properly reduced the amount of damages awarded her by an amount it considered “earnable with reasonable diligence,” and we do not think the award, so reduced, constituted an abuse of discretion. See Local 53 of International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047, 1052 (5 Cir. 1969).

The district court is directed to modify its judgment to expand the award to the plaintiffs to include seniority and back pay from the date of the unlawful employment practice in June, 1966, up to the date on which they are actually reinstated. In all other respects, the judgment will be affirmed.

GIBBONS, Circuit Judge

(concurring).

I agree with the analysis of the issues in this case set forth in Judge Biggs’ opinion with one exception which in no way affects the outcome. It seems to me that the admitted policy of discrimination against married women, which antedated the enactment of 42 U.S.C. § 2000e-2 and which never operated against married men, together with the evidence establishing that a discriminatory policy continued to operate against the appellants who are married women after the passage of the Act, sufficiently establish that these married women were discriminated against on the basis of their sex. Thus, I do not agree that we must decide the cases on a theory different from that relied on by the district court.

      . Count I of the complaint was dismissed by Judge Teitelbaum on Wiegand’s motion that the cause of action asserted was barred by the statute of limitations. This ruling is not challenged before us in this court.

      . Section 703 of the Civil Rights Act, 42 U.S.C. § 2000e-2, provides as follows :
      “(a) It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire * * * or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s * * * sex. * * * (c) It shall be an unlawful employment practice for a labor organization — (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his * * * sex. * * *
      “(e) Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees * * * on the basis of his * * * sex * * * in those certain instances where * * * sex * * * is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. * * *”

      . The Commission’s findings are not controlling in this action. See Fekete v. United Steel Corp., 424 F.2d 331 (3 Cir. 1970).

      . See 42 U.S.C. § 2000e-2(e)(l), supra note 2.

      . The suit originally included a local union as defendant but Judge Teitelbaum found the union was free from fault and dismissed the action against it. This ruling is not challenged here.

      . Judge Teitelbaum’s opinion is reported at 331 F.Supp. 1184 (W.D.Pa.1971).

      . Judge Teitelbaum correctly stated in note 1 to his opinion, 331 F.Supp. at 1185: “This action was instituted as a class action on behalf of all similarly situated persons. The evidence, however, does not reveal any other similarly situated persons, and therefore the minimum prerequisite to the maintenance of a class action under F.R.Civ.P. 23, viz., that the class be so numerous that joinder of all members is impracticable, is not satisfied. Accordingly, this action is not properly maintainable as a class action and will not be treated as one.”

      . Pursuit of the administrative remedy is a prerequisite to a suit such as that at bar.

      . The production department is what we are concerned with; there has been no suggestion of discrimination against married women in Wiegand’s clerical force.

      . For example, the Personnel Director at the time plaintiffs’ applications were on file testified that he “really [didn’t] know . . .” why plaintiffs had not been hired.

      . Due to plant wide seniority provisions in Wiegand’s labor agreement, job vacancies were bid on by the existing labor force with the result that new employees were often “bumped” to the most physically taxing jobs in production. Wiegand therefore had a policy requiring that new employees be physically able to perform each job in production.
      This policy cannot provide the basis for a “bona fide occupational qualification.” It is clear that Wiegand proceeded on the assumption that women as a class were physically unable to perform each and every job in production, but as Judge Teitelbaum pointed out in his thorough and thoughtful opinion, 331 F.Supp. at 1187-1188: “In Ridinger v. General Motors Corp., 325 F.Supp. 1089 (D.C.S.D.Ohio, 1971), the Court decided that, ‘[A] bona fide occupational qualification is not established by an assumption or “stereotyped characterization” that very few women could perform a particular job.’
      “To establish a ‘bona fide occupational qualification,’ the Court held, requires reference to individual capacities of individual women. See Weeks v. Southern Bell Telephone and Telegraph Co., 408 F.2d 228 (C.A. 5, 1969) and Richards v. Griffith Rubber Mills, 300 F.Supp. 338 (D.C.Or., 1969). Wiegand’s assumption, therefore, falls short of establishing an acceptable qualification, and its discriminatory employment practices regarding the plaintiffs are thus rendered legally indefensible.” (Notes omitted.)
      We agree with the district court’s conclusions.

      . Contrary to the company’s argument, the plaintiffs did not have the burden of proving that they were so qualified in making their prima facie case of discrimination. Rather, we think that once plaintiffs have made a prima facie showing of discrimination it was incumbent upon the company to prove that the plaintiffs were not qualified in justification of its failure to hire them. See Hodgson v. First Federal Savings and Loan Association of Broward County, Florida, supra.

      . Paragraph 15 of the complaint states:
      “ [Defendant Company continued its practice of refusing to hire married women as production employees and of discharging any female production employee who became married.”

      . “Pretrial Stipulation * * * II. The contested issues raised by the written pretrial statements of the parties are:
      “(1) Did the Company refuse to hire the plaintiffs when they made application for employment in July of 1965 and at various times in 1966?
      “(2) If the answer to No. 1 above is yes, then was the failure to hire due:
      (1) to a policy of discrimination which required that the Company’s female production employees be and remain single as a condition of employment.”

      . See Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213 (2 Cir. 1972).

      . Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 158, 82 L.Ed. 224 (1937). Accord, J. E. Riley Investment Co. v. Commissioner of Internal Revenue, 311 U.S. 55, 61 S.Ct. 95, 85 L.Ed. 36 (1940). See also Securities and Exchange Commission v. Chenery Corporation, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Lum Wan v. Esperdy, 321 F.2d 123 (2 Cir. 1963).

      . 3 Moore’s Federal Practice ¶ 15.13 [2], at 985.

      . See New Amsterdam Casualty Co. v. Waller, 323 F.2d 20 (4 Cir. 1963).
      We do not think that we are foreclosed from considering this theory of recovery for the issue of discrimination against women as a class was injected into the case by Wiegand and was therefore tried below with Wiegand’s implied consent. By its own admission and evidence, Wiegand discriminated against women by employing a sterotyped characterization that women were physically unqualified for the jobs the plaintiffs had applied for. See note 11, supra. See F.R.Civ.P. 15(b) and 16. Rule 16 should be read in light of Rule 15(b). See 3 Moore’s Federal Practice ¶ 15.13 [1], at 982 and note 11 cited to that text.

      . Section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g) provides in part: “If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay. . . . Interim earnings or amounts earnable with reasonable diligence by the person or persons discrimimated against shall operate to reduce the back pay otherwise allowable.”

      . 331 F.Supp. at 1188.

      . 331 F.Supp. at 1188, n. 8.

      . 42 U.S.C. § 2000e-5(g) provides in part: “Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.”

      . The back pay, of course, must be reduced by the amounts which the district court found to be “interim earnings or amounts earnable with reasonable diligence.” Since such amounts pertained to pre-February, 1969 earnings, the post February, 1969 back pay to be awarded must be similarly reduced.


author: McENTEE, Circuit Judge.

text:
    Earl E. ROBINSON, Plaintiff, Appellee, v. POCAHONTAS, INC., et al., Defendants, Appellants.
    No. 71-1256.
    United States Court of Appeals, First Circuit.
    Heard March 8, 1973.
    Decided May 4, 1973.

      Frank H. Handy, Jr., Boston, Mass., with whom Viola B. Kneeland, Richard B. Kydd, and Kneeland, Splane & Kydd, Boston, Mass., were on brief, for appellants.
    Albert P. Zabin, Boston, Mass., with whom Schneider & Reilly, Inc., Boston, Mass., were on brief, for appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

This is a diversity suit in which plaintiff, Earl E. Robinson, a seaman, seeks recovery from the defendant, Sea Coast IV, Inc., the charterer of the vessel on which he was injured, for negligence under the Jones Act, 46 U.S.C. § 688 (1970), and for unseaworthiness and maintenance and cure under the general maritime law. The jury awarded the plaintiff verdicts of $45,000.00 on the Jones Act and unseaworthiness counts and $21,366.06 on the maintenance and cure claim, of which amount $10,000.00 was designated as punitive damages. On entering judgment the trial court added pre-judgment interest in the amount of $9,589.90, bringing plaintiff’s total recovery to $75,955.56. Arguing that the trial court erred in a number of respects in instructing the jury and that it abused its discretion in awarding pre-judgment interest, Sea Coast appeals.

The pertinent background facts are as follows. On April 20, 1967, Robinson, while a crewman on the M/V Arthur J. Minners engaged in fishing operations in the Gulf of Mexico, slipped on some fish slime and fell, injuring his back. After receiving preliminary treatment at a small Mississippi port, Robinson was hospitalized under the care of Dr. Alleman, a company physician, in Abbe-ville, Louisiana. Following testing, Dr. Alleman informed the Minners’ captain that he suspected plaintiff of malingering and also that he had syphilis. The captain then discharged Robinson who departed for his home in Virginia.

When Robinson arrived in Richmond on May 16, 1967, his back condition had become critical and he required immediate medical attention. After receiving this care, he was admitted to the United States Public. Health Service Hospital in Baltimore where physical therapy was administered and a myelogram taken. Although this test proved to be negative, indicating no serious back injury, plaintiff’s condition showed little improvement. After leaving the hospital on June 15, 1967, he placed himself under the care of a private physician in spite of Sea Coast’s order that he receive all treatment through the free Public Health Service Hospital. Thereafter, his condition was diagnosed as a herniated disc and in early 1968 corrective surgery was performed at a private medical facility. While this operation and the post-operative therapy which he received alleviated his symptoms to some extent, he still did not achieve a full recovery.

In the meantime Sea Coast was demonstrating a marked reluctance to honor its obligation to pay maintenance to the plaintiff. Initially payments were withheld on the pretext that Robinson, having contracted venereal disease, had been fired for cause. When this charge was not substantiated, however, payments were made,, but on an irregular basis. In late 1967, in spite of the fact that defendant was informed that Robinson would lose his home if he was not paid his back wages, defendant refused to authorize this expenditure and Robinson’s mortgage was foreclosed. Finally, in 1968, when plaintiff refused to accept a settlement offer which was characterized by his counsel as “totally inadequate,” all payments were terminated.

In December 1969 Robinson moved from Virginia to Baltimore and again received treatment at the Public Health Service Hospital. When his condition showed no further improvement, he returned to his private doctors and, following another myelogram, a second ruptured disc was discovered. Plaintiff’s experts testified that surgical intervention would again be necessary to correct this condition.

On this background, Sea Coast first takes issue with the trial court’s instruction that the jury might award plaintiff the private medical expenses he incurred if it found that he acted reasonably in seeking aid at facilities other than those of the United States Public Health Service. Specifically, Sea Coast argues that the evidence was insufficient to justify submitting this issue to the jury in view of the general rule that, absent unusual or emergency circumstances, a seaman who is ordered to receive treatment at a public marine hospital may not consult private physicians or incur additional medical expenses and expect to pass on these costs to his employer. Our review of the record, however, convinces us that this instruction was justified. During plaintiff’s initial stay in the marine hospital in 1967 a myelogram was taken and was reported to be negative. Thereafter, in spite of the fact that he showed little improvement, plaintiff received no treatment except physical therapy and no further diagnostic tests were made. His experience in 1969 was substantially the same. Again he was placed on a physical therapy program which did little to improve his condition and, since no myelogram was taken, his second ruptured disc was not discovered. Given these facts, it is clear that each time plaintiff entered the marine hospital his condition was incorrectly diagnosed. On this basis it is fair to infer that on both of these occasions the treatment he needed was either not tendered or would not have been forthcoming. Cf. Nunes v. Farrell Lines, Inc., 129 F.Supp. 147 (D.Mass.), modified, 227 F.2d 619 (1st Cir. 1955). Under these circumstances, we hold that the trial court’s submission of this issue to the jury was clearly appropriate.

Sea Coast next argues, in light of the absence of a specific demand for unearned wages in the maintenance and cure count of the complaint, that the trial court erred in instructing the jury that this item could be included in its award on this claim. This argument is not persuasive for at least two reasons. In the first place, at least since The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 47 L.Ed. 760 (1903), it has been settled that the right to recover wages through the end of the voyage or, as in this case, through the end of the fishing season, see Vitco v. Joncich, 130 F.Supp. 945, 949-950 (S.D.Cal.1955), aff’d, 234 F.2d 161 (9th Cir. 1956), is a recognized element of a disabled seaman’s claim for maintenance and cure. See, e. g., Bartholomew v. Universe Tankships, Inc., 279 F.2d 911, 913-915 (2d Cir. 1960); Manard v. St. Lawrence Carriers, Inc., 266 F.Supp. 500, 501 (D.Del.1967); Vitco v. Joncich, supra, 130 F.Supp. at 949 and cases cited; Gilmore and Black, The Law of Admiralty, § 6-12 (1957). In view of the unequivocal acceptance of this rule, although the better practice would be to spell out a claim for unearned wages in the pleadings, a demand for these wages would seem to be implicit in Robinson’s complaint. In addition, however, in the instant case Sea Coast never made its position clear that such an award would be beyond the scope of the pleadings until after the court had instructed the jury. During trial no objection was raised to Robinson’s testimony concerning his rate of compensation or the fact that these wages had not been paid. Indeed, Sea Coast rigorously cross-examined plaintiff on these issues. Under these circumstances, especially since the complaint could have been amended if this issue had been seasonably raised, Sea Coast may not now challenge the propriety of this award.

Sea Coast’s further contention that the trial court’s instruction permitting an award of punitive damages was erroneous as a matter of law is also without merit. Support for such an award is found in Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), where the Supreme Court held that a seaman could recover attorneys’ fees as damages where a shipowner was callous, willful, or recalcitrant in withholding these payments. Mr. Justice Stewart, dissenting primarily on the question of the extent of a seaman’s recovery for maintenance and cure but seemingly in agreement with the majority’s fundamental premise, stated:

"[I]f the shipowner’s refusal to pay maintenance stemmed from a wanton and intentional disregard of the legal rights of the seaman, the latter would be entitled to exemplary damages in accord with traditional concepts of the law of damages. McCormick, Damages, § 79. While the amount so awarded would be in the discretion of the fact finder, and would not necessarily be measured by the amount of counsel fees, indirect compensation for such expenditures might thus be made.” Id. at 540, 82 S.Ct. at 1004.

Such awards or the right thereto have been upheld in the progeny of Vaughan. See, e. g., Solet v. M/V Capt. H. V. Dufrene, 303 F.Supp. 980, 989 (E.D.La.1969); Roberson v. S/S American Builder, 265 F.Supp. 794, 800 (E.D.Va.1967); Stewart v. S.S. Richmond, 214 F.Supp. 135, 136-137 (E.D.La.1963). The answer to Sea Coast’s further argument that the right to maintenance is essentially a contractual right and that generally punitive damages are not awarded for the breach of such rights is also found in Vaughan, supra 369 U.S. at 532-533, 82 S.Ct. at 1000-1001, where the Court stated:

“Maintenance and cure differs from rights normally classified as contractual. As Mr. Justice Cardozo said in Cortes v. Baltimore Insular Line, supra, 371 [of 287 U.S. 367, 174 of 53 S.Ct. 173, 77 L.Ed. 368], the duty to provide maintenance and cure ‘is imposed by the law itself as one annexed to the employment. . . . Contractual it is in the sense that it has its source in a relation which is contractual in origin, but given the relation, no agreement is competent to abrogate the incident.’ [Footnote omitted.] ”

Finally, defendant’s assertion that the evidence was insufficient to warrant charging the jury on punitive damages merits little discussion. In view of the defendant’s initial use of the venereal disease charge to justify withholding these payments, its refusal to pay past due unearned wages when notified that plaintiff was in danger of losing his home, and its termination of all payments after plaintiff refused to accept its settlement offer, the appropriateness of this instruction seems clear.

Sea Coast’s final argument that the trial court erred in adding pre-judgment interest to the verdicts requires, at the outset, resolution of an issue on which the record is silent, namely whether this award was made pursuant to state or federal law. In this regard plaintiff argues, since this is a diversity action, that state law should have been applied and that the application of the “remedial” Massachusetts pre-judgment interest statute, 38 M.G.L.A. c. 231 § 6B, to the case at bar would be an appropriate state-law supplement to federal maritime policy. Sea Coast, on the other hand, contends that the federal admiralty rule, under which an award of pre-judgment interest would rest within the discretion of the trier of facts, see, e. g., American Union Transport Co. v. Aguadilla Terminal, Inc., 302 F.2d 394, 395 (1st Cir. 1962); O’Donnell Transportation Co. v. City of New York, 215 F.2d 92, 95 (2d Cir. 1954), should be employed since this suit was brought to enforce rights created by the general maritime law. On this issue it is clear that Sea Coast must prevail. In MooreMcCormack Lines, Inc. v. Amirault, 202 F.2d 893 (1st Cir. 1953), a diversity action in which the issue was whether this same Massachusetts statute should be applied to augment personal injury awards resulting from the collision of two vessels, this court said:

“But this is not a ‘typical diversity case’ under which a federal district court sitting in Massachusetts would be obliged to apply the local substantive law of Massachusetts in accordance with Erie R. R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. The claims sued on here were not based upon Massachusetts law, but were for maritime torts. It is well settled that by force of the Constitution itself, when a common law action is brought, whether in a state or in a federal court, to enforce a cause of action cognizable in admiralty, the substantive law to be applied is the same as would be applied in an admiralty court — that is, the general maritime law, as developed and declared, in the last analysis, by the Supreme Court of the United States, or as modified from time to time by Act of Congress. Jansson v. Swedish American Line, 1 Cir., 1950, 185 F.2d 212, 216, and cases cited. The fortuitous circumstance that in the present case there was diversity of citizenship between the parties plaintiff and defendant may give an added basis for jurisdiction in the federal district court, under 28 U.S.C. § 1332. But whether such diversity existed or not, it is still true that the substantive law to be applied in determining both liability and the amount of damages to be embodied in the money judgment is federal law, not state law.” Id. at 896-897.

See Canova v. Travelers Insurance Company, 406 F.2d 410 (5th Cir.), cert. denied, 396 U.S. 832, 90 S.Ct. 88, 24 L.Ed. 2d 84 (1969); Newburgh Land & Dock Company v. Texas Company, 227 F.2d 732 (2d Cir. 1955). In light of this express authority, we may assume that this pre-judgment interest award was entered pursuant to the federal maritime rule.

The further question which arises, of course, is whether the trial court abused its discretion in making this award. In this regard we find Newburgh Land & Dock Company v. Texas Company, supra, instructive. In that case, a diversity action in which the trial court added pre-judgment interest to a jury verdict for collision damages, the second circuit, in vacating this award, observed: “[i]t is the federal law that in actions at law when the award of interest rests in discretion, it is the jury who must exercise it. . ” Id. at 735. Given this rule, it is apparent that the trial court’s award of pre-judgment interest in the instant case violated the province of the jury and therefore may not stand. In addition, although plaintiff did include demands for interest in his complaint, since he did not request that the jury be instructed that it might, in its discretion, add pre-judgment interest to its award, we conclude that it would be inappropriate to remand this issue to the trial court for further consideration. See Newburgh Land & Dock Company v. Texas. Company, supra, at 735.

The judgment is modified by striking out the award of pre-judgment interest and, as modified, is affirmed.

      . The court instructed the jury as follows:
      “A seaman does not have a free hand in choosing his physician and deciding on his own treatment. The United States Public Health Service maintains marine hospitals at which seamen may receive low cost or free, in some instances, care and treatment. An ill or injured seaman who has been given a hospital ticket, as it is called, by the vessel and provided with transportation to the nearest marine hospital usually must accept the medical services available to him in that hospital. However, if on reasonable grounds a seaman refuses to accept medical treatment at a marine hospital and justifiably, in your view, gets treated by a physician or hospital other than the marine hospital, then he may recover as part of maintenance and cure expenses for medical bills that he actually incurred, . . . . ”
      We feel that this instruction accurately reflected the law on this issue.

      . We add that our conclusion that plaintiff is entitled to recover the private medical expenses he incurred in the past should not be read as relieving plaintiff of his duty to comply with defendant’s orders in obtaining medical care in the future. Thus, if defendant directs plaintiff to llave future surgery performed at tlie Public Health Service Hospital, absent a showing that these facilities are in some manner inadequate or unavailable, plaintiff must comply with this request or bear the cost himself. See Nunes v. Farrell Lines, Inc., supra, at 148.

      . Justice Stewart was of the same view.
      “The duty to provide maintenance and cure is in no real sense contractual, and a suit for failure to provide maintenance or cure can hardly be equated, therefore, with an action for breach of contract. ‘The duty . is one annexed by law to a relation, and annexed as an inseparable incident without heed to any expression of the will of the contracting parties.’ Cortes v. Baltimore Insular Line, 287 U.S. 367, 372 [53 S.Ct. 173, 174, 77 L.Ed. 368].” Vaughan v. Atkinson, supra, at 534, 82 S.Ct. at 1001.

      . We need not address Sea Coast’s further claim that it may not be held liable for punitive damages because no proof was offered (1) that the agent who represented it in the maintenance negotiations was incompetent, or (2) that it had participated in or ratified his callous acts since these issues were not preserved for appeal.

      . Plaintiff’s attempt to overcome the import of Amirault by suggesting that it was “expressly overruled” in Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed. 2d 368 (1959), is not persuasive. While it is true that in Romero the Supreme Court overturned the holding of Doucette v. Vincent, 194 F.2d 834 (1st Cir. 1952), that a civil action on a maritime claim might be maintained on the law side of the federal court, even in the absence of diversity of citizenship, as a claim arising under the Constitution within 28 U.S.C. § 1331 (1970), we do not view the jurisdictional rationale of Doucette as having been of seminal importance to the court’s choice of law decision in Amirault.


author: CHAMBERS, Circuit Judge:

text:
    H & J FOODS, INC., Plaintiff-Appellee, v. Gail REEDER, dba Nutrifoods Co., Defendant-Appellant.
    No. 71-1669.
    United States Court of Appeals, Ninth Circuit.
    April 25, 1973.

      Francis A. Utecht (argued), Fulwider, Patton, Rieber, Lee & Utecht, Long Beach, Cal., for defendant-appellant.
    James W. Geriak (argued), James J. Short, Lyon & Lyon, Los Angeles, Cal., for plaintiff-appellee.
    Before CHAMBERS, HAMLEY, and GOODWIN, Circuit Judges.

      . Circuit Judge Hamley lias not participated in the within opinion, being temporarily disabled.

   OPINION

CHAMBERS, Circuit Judge:

“Hunza” seems to be a word with some sales appeal when exploited in the rapidly growing health foods business.

A small operator, Floyd Hampson, who was using the name of Hunza for some of his products, registered the name as a trademark in the United States Patent Office in 1957. It was registered for: “Vitamin-Mineral Food Supplement, including Herbs and Grasses, in Powdered, Tablet and Tea Forms.” Hampson’s early advertising, before the health food business generally burgeoned, is marvelous. According to his claims, the Hunzas were a healthy little tribe of agrarians in the high mountains of Asia where the soil is especially rich and unique. Hampson had found himself a similar Eden, a farm near Cherry Creek hard by the little town of Duvall, Washington. There mud on the farm had the texture of hand cream. There Hunza grass was grown, but not allowed to mature. Its tender shoots were cut with a field chopper. Then it was idyllically processed by flash dehydration. One might remain lost in the puffery, except the great product, never touched by human hands, came down to reality with the postscript notation: “Does not contain alfalfa.”

Maybe Hampson was before his time (or maybe he just did not live in Southern California where one’s odd dreams can often be richly exploited), but he did not do well financially with his “great” product. Eventually in 1968 he sold his dreams and the trademark to Herman Jacobs, one of the owners of H & J Foods, Inc., for $500.00. Jacobs turned it over to the company. Tangibly, in addition to the copyright, there came along a lot of Hampson’s unused labels.

But somehow, someway, one Rowe, the predecessor of Reeder, the defendant, operating as Nutrifoods Co. in Southern California, became aware of the legend of Hunza and he started producing health foods, labelling them Hunza®. The printer’s bug ® is the historical symbol for a registered trademark. Neither Rowe nor Reeder ever attempted to register Hunza as a trademark. (H & J is also a Southern California food producer.)

Within a few months after the purchase, H & J had sued Reeder, seeking an injunction and an accounting of profits. The first count was for trademark infringement. The second was a pendent count for unfair competition. H & J Foods, Inc., received a judgment against Reeder of $26,519.07 plus interest and heavy costs, which included attorney fees of $14,040.00. The attorney fees are allowable under California’s statutory law on unfair competition. Fleischmann Distilling Corp. v. Maier Brewing Company, 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); Friend v. H. A. Friend & Co., 416 F.2d 526 (9th Cir. 1969).

On this appeal, the whole result is attacked. We affirm the granting of the injunction, but hold that the assignment carried no right to profits before the date of the assignment. Further, this result will necessarily require a heavy reduction in the attorney fees allowed. Also, some adjustment will have to be made in the amount assessed as the cost of the accounting.

Reeder does not challenge the validity of Hampson’s registration of “Hunza.” He does, however, challenge the assignment of the mark to Jacobs. Most of his objections are to the district court’s findings of fact.

The claim that Reeder presses most vigorously is that the assignment was invalid because it was “in gross,” and an assignment apart from the business with which the mark has been associated. See Mister Donut of America v. Mr. Donut, Inc., 418 F.2d 838 (9th Cir. 1969), and 15 U.S.C. § 1060.

While Hampson did not transfer much except the trifling amount of goodwill along with his trademark, the reason was that he had little else to transfer in the way of tangible assets related to “Hunza.” The district court found that “Herman Jacobs contacted Hampson and by assignment August 7, 1968, purchased from Hampson for $500 all right, title and interest in and to the trademark ‘Hunza,’ including the right to sue for past infringements, together with the goodwill of the business symbolized and appurtenant to the mark, Registration No. 644,085, and a quantity of ‘Hunza’ labels, advertising news releases, and promotional materials.”

Except as to past infringement, we believe the court’s finding is supported by the evidence, and is therefore proper. Hampson gave up the right to use the mark, “Hunza,” and Jacobs acquired all of Hampson’s related tangible assets of any conceivable value. In this case, this was sufficient. Cf. Sterling Brewers, Inc. v. Schenley Industries, Inc., 441 F. 2d 675 (C.C.P.A.1971).

Reeder further contends that H & J has used the “Hunza” mark on products so dissimilar to the registration specifications that the mark is invalid. Although we might have found differently, the district court found substantial similarity, and we do not believe that finding is clearly erroneous.

On H & J’s pendent claim arising under California’s unfair competition law, the court found that the public was likely to be deceived by Reeder’s use of the mark “Hunza,” and the bug,®. We express no opinion on the validity of the finding to the extent it involves use of ®. The finding of deception based on use of “Hunza” alone is sufficient, and it is supported by the evidence. See Payne v. United California Bank, 23 Cal.App.3d 850, 100 Cal.Rptr. 672 (1st Dist.1972). A specific finding of “palming off” was not necessary.

Much of the award stems from damages for infringement by Reeder prior to the assignment from Hampson to Jacobs. Such pre-assignment damages are disfavored, and they are allowed only when the right to sue is clearly spelled out in a valid assignment. George W. Luft Co., Inc., v. Zande Cosmetic Co., Inc., 142 F.2d 536 (2d Cir. 1944). Here, the only evidence of Hampson’s intent to assign the right to sue for past infringement is the following statement of Herman Jacobs. “[Hampson] also gave a remark. He said, ‘If you get the mark, you can sue that guy in Tulsa, Oklahoma, Akin [a former partner of Reeder], because he is using the mark illegally.’ ” We do not pass on the question whether this parol evidence was properly admitted. We do feel, however, this kind of testimony is insufficient to entitle H & J to pick up pre-assignment damages. The language, if admissible, is not express enough. This conclusion will have a heavy impact on the amount of damages, and as above indicated, the district court must reconsider on remand the amount of attorneys’ fees and the amount of costs.

The district court was not clearly erroneous in its implicit rejection of Reed-er’s “clean hands” argument.

As an epilogue, we note that probably counsel would have served their clients just as well without overridiculing each others’ briefs. The briefs, perchance, were written for their respective clients, not us.

The judgment is affirmed as to the granting of the injunction. Otherwise, the judgment is remanded for proceedings consistent with this opinion.

Each side will bear its own costs of the appeal.

      . United States Patent Office Trademark Registration No. 644,085.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Tommy Ray WEST, Appellant.
    No. 72-2428.
    United States Court of Appeals, Fourth Circuit.
    Submitted April 12, 1973.
    Decided May 7, 1973.

      William L. Cofer, Winston-Salem, N. C. (Court-appointed counsel), on brief for appellant.
    William L. Osteen, U. S. Atty., and Bradley J. Cameron, Asst. U. S. Atty., on brief for appellee.
    Before SOBELOFF and BOREMAN, Senior Circuit Judges, and WINTER, Circuit Judge.
   PER CURIAM.

On May 4, 1972, Tommy Ray West was convicted of possessing and concealing counterfeit Federal Reserve notes and was sentenced to imprisonment for 24 months. Upon motion of his counsel, the District Court extended West’s existing appearance bond until May 15, 1972, at which time he was directed to report to the United States ' Marshal to commence serving his sentence. West did not appear as ordered on May 15. Subsequently, he was convicted of bail jumping in violation of 18 U.S.C. § 3150 and received a 24-month sentence which was to be served concurrently with the sentence imposed on May 4.

West now contends that his failure to report to the United States Marshal as ordered is not an offense punishable under 18 U.S.C. § 3150, since the United States Marshal is neither a court nor a judicial officer.

Section 3150 provides in pertinent part:

Whoever, having been released pursuant to this chapter, willfully fails to appear before any court or judicial officer as required, * * * shall, (1) if he was released in connection with a charge of felony * * * be fined not more than $5,000 or imprisoned not more than five years, or both * * *. (Emphasis supplied.)

The term “judicial officer” is then defined by 18 U.S.C. § 3152(1) as “any person or court authorized pursuant to section 3041 of this title, or the Federal Rules of Criminal Procedure, to bail or otherwise release a person before trial or sentencing or pending appeal in a court of the United States”; and section 3041 does not mention the office of United States Marshal.

We have also examined the applicable rules of the Federal Rules of Criminal Procedure, Rule 46, and find no express or implied mention of a Marshal in connection with the authority to bail or otherwise release a person before trial or sentencing or pending appeal. In view of this restrictive definition of “judicial officer,” we agree with defendant that a United States Marshal is not a judicial officer under 18 U.S.C. § 3150.

Notwithstanding the fact that a United States Marshal is not to be equated with a judicial officer under § 3150, we affirm West’s conviction. The essence of the crime of bail jumping is willful failure to appear before “any court or judicial officer as required.” As a condition of defendant’s bond, the court ordered him to report to the United States Marshal at a specific time to begin serving his sentence. An unnecessary waste of judicial time and energy would result if we were to require that each person in West’s position appear before the court itself. No discretionary action at all is involved.

Under these circumstances it is appropriate to view the United States Marshal as the designated agent of the court for the limited purpose of taking West into custody. Cf. United States v. Cardillo, 473 F.2d 325 (4th Cir. 1972). Accordingly, we dispense with oral argument and affirm the judgment of the court below.

Affirmed.

      . 18 U.S.C. § 3041 provides in pertinent part:
      For any offense against the United States, the offender may, by any justice or judge of the United States, or by any United States magistrate, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any state where the offender may be found * * * be arrested and imprisoned or released * * *.

      . In a case involving construction of the same statutory language, the United States Court of Appeals for the Fifth Circuit held that a probation officer is not a judicial officer within the meaning of 18 U.S.C. § 3150. United States v. Clark, 412 F.2d 885 (5th Cir. 1969).


author: THOMSEN, District Judge:

text:
    John P. KINSEY and Edith B. Kinsey, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 644, Docket 72-2071.
    United States Court of Appeals, Second Circuit.
    Argued March 26, 1973.
    Decided May 7, 1973.

      John S. Murtha, Hartford, Conn. (Murtha, Cullina, Richter & Pinney, and Peter G. Gillin, Hartford, Conn., on the brief), for petitioners-appellants.
    William A. Friedlander, Atty., Tax Div., Dept. of Justice (Scott P. Crampton, Asst. Atty. Gen., and Meyer Rothwacks, Atty., Tax Div., Dept. of Justice, on the brief), for respondent-appellee.
    Before FRIENDLY, Chief Judge, LUMBARD, Circuit Judge, and THOMSEN, District Judge.

       Of the District of Maryland, sitting by designation.

   THOMSEN, District Judge:

This appeal by taxpayers John P. Kinsey (Kinsey) and his wife presents the question whether they were entitled to exclude from gross income the liquidating dividends received by DePauw University on shares of stock of Container Properties, Inc. (Container), which Kinsey had given to DePauw after the directors and stockholders of Container had adopted a plan of liquidation under § 337 of the Internal Revenue Code, had already made distributions in liquidation of a major portion of its assets, and had taken steps to dispose of the rest.

The facts, which are not disputed, are set out in the opinion of the Tax Court, 58 T.C. 259 (May 10, 1972).

Container was a Connecticut corporation organized in 1948 to own and lease real property. On April 26, 1965, immediately before the transactions involved in this case, 572 shares of its stock were outstanding. Kinsey owned 425 shares (74.30%), his wife 40 shares (7.00%); Kunkel and Banta, who were employees and directors of Container, owned 63 shares (11.01%) and 42 shares (7.34%) respectively; the remaining 2 shares (.35%) were owned by Seeton.

Container owned all of the issued and outstanding shares of two other corporations (LaPorte and Carolina), both of which were engaged in the business of owning and leasing real property.

At a meeting of Container’s board of directors on April 26, the directors unanimously recommended the liquidation of Container under § 337 of the Internal Revenue Code of 1954. On the same day, Container’s shareholders unanimously approved the board’s recommendation.

On April 30, Container’s directors authorized, as the first step in the liquidation, the distribution by Container of all its LaPorte and Carolina stock to Container’s shareholders of record as of April 30, 1965.

At the time of the adoption of the liquidation plan there was in existence an agreement, made in 1963, under which Container was obligated to sell and Boise Cascade Corp. (Boise) was obliged to purchase all the real estate leased by Container and its subsidiaries to Boise and its predecessor in title. Container had the right to designate the date on which the sale would take place, upon giving 120 days notice. By letter to Boise dated May 14, Container designated September 15, 1965, as the closing date.

Kinsey is an alumnus of DePauw, and at a meeting in New York in May he agreed to make a gift to his alma mater. On July 7, in satisfaction of his commitment, Kinsey transferred to DePauw 325 shares of Container stock and similar proportional amounts of LaPorte and Carolina stock, which had been distributed to him by Container. On July 12, Robert E. Crouch, the secretary of alumni affairs for DePauw and a personal acquaintance of Kinsey for about 15 years, acknowledged receipt of the certificates representing the shares so transferred. No restrictions were placed upon the further transfer of those shares.

It was the normal policy of DePauw to sell any stock it received as a gift. The shares in question were not sold, because Kinsey had advised Crouch to hold the stock pending advice from Kinsey as to how it could be liquidated. No such advice was requested by DePauw or given by Kinsey before DePauw received Container’s distribution in liquidation in October 1965.

The 325 shares transferred to De-Pauw represented a 56.80% interest. Under Connecticut law a vote of two-thirds of the shareholders is required for a corporation to adopt a resolution of liquidation or to terminate such a resolution previously adopted by the shareholders. After the transfer of shares to DePauw, the liquidation proceeded in accordance with the plan adopted on April 26. No action was ever taken by anyone to terminate the liquidation of Container, LaPorte or Carolina. On September 15, Container transferred all of its real property to Boise for $533,334.

At special meetings of the respective boards of Container, LaPorte and Carolina on September 15, the directors of each corporation resolved to dissolve the corporation on October 31, 1965, to pay all claims owed to creditors and to distribute in complete liquidation all remaining properties of the corporations to their respective shareholders. From the date of adoption of the plan of liquidation in April until the completion of the sale of its assets in September, Container had continued to earn rental and interest income and to incur some operating expenses.

On October 22 and December 6 distribution of the remaining assets of all three corporations was made. Container mailed checks to DePauw totaling $237,499.66, representing distributions in liquidation with respect to and in exchange for the 325 shares of Container stock which had been transferred by Kinsey to DePauw. Container filed a certificate of dissolution with the Secretary of State of Connecticut on November 17.

On their tax return for taxable year 1965, the Kinseys claimed a charitable deduction in the amount of $237,499.66 based upon the transfer of 325 Container shares to DePauw on July 7, 1965. As noted above, the question at issue in this case is whether Kinsey was entitled to exclude from his gross income the capital gain resulting from the distribution in liquidation of those shares.

Kinsey argued in the Tax Court and argues here that an outright gift of 325 Container shares was made to DePauw on July 7; that all incidents of ownership inherent in that block of stock vested in DePauw on that date; that the gift preceded the time when an enforceable right to the liquidation proceeds accrued; that the 325 shares represented a controlling interest in Container; that the amount of the liquidating distributions could not be determined at the time of the gift and could not be correctly ascertained until September 15, when the Container board passed the final resolution of dissolution; that the plan of liquidation was revocable, without Kinsey’s concurrence, from the time of the gift until the final liquidation distributions were authorized.

The Commissioner argued and argues that the transfer of 325 shares to De-Pauw constituted an anticipatory assignment of income which, however devised, should not serve to insulate Kinsey from the incidence of taxation with respect to the liquidating distribution attributable to those shares. Referring to the corporate actions set out above, the Commissioner argued and argues that despite any remote, technical possibility of a rescission of the plan of liquidation, and the fact that a liquidating dividend had not yet been formally declared at the time of the gift, the taxpayer had for all practical purposes transferred nothing but a right to receive a liquidating dividend, and that this reality controls the tax consequences.

After discussing the facts and law, the Tax Court held that the liquidation had proceeded to a stage where the transfer of Container shares was in substance a transfer of the liquidation proceeds soon to come due on such shares, and concluded: “On the facts presented us here, petitioners cannot be allowed to insulate themselves from the incidence of taxation with respect to the liquidating distributions ascribable to the shares donated to DePauw.” 58 T.C. at 266.

In Hudspeth v. United States, 471 F.2d 275 (8 Cir. 1972), the leading authorities are carefully and accurately analyzed; that analysis need not be repeated here.

A close case on the facts is Jacobs v. United States, 280 F.Supp. 437 (S.D. Ohio, 1966), affirmed, 390 F.2d 877 (6 Cir. 1968). In Jacobs the taxpayers owned 1935 out of 1935 shares of outstanding stock of a Kentucky corporation. After its shareholders had adopted a plan of liquidation under § 337 of the Code and approved a sale of the corporation’s assets, and after part of the sale price had been received and the corporation had filed a notice of the plan with the Commissioner, taxpayers transferred to the Jacobs Family Foundation 90 shares of the corporation’s stock. The district judge, whose opinion was adopted by the Sixth Circuit, held that the taxpayers had made a gift of 90 shares of the corporation to an “exempt charitable organization rather than an assignment of a right to liquidation dividends and is therefore entitled to judgment”. He based his conclusion on the following finding: “In spite.of the arguments concerning the unlikelihood of a repudiation of the dissolution proceedings prior to their finality, the fact remains that such abandonment was entirely possible.” 280 F.Supp. at 439.

The facts in Hudspeth, supra, are also generally similar to the facts in the instant case. In Hudspeth the taxpayer had made the gift to a charity after the plan of complete liquidation had been adopted and steps to carry it into effect had been taken. The gift in Hudspeth left the donor with a majority of the stock. The district court found the crucial issue to be whether, after adoption, the plan of liquidation was irreversible under state law. If so, the taxpayer was “absolutely and indefeasibly entitled in the immediate future to the liquidating distributions on the stock donated by him”, Hudspeth v. United States, 335 F.Supp. 1401, 1404 (E.D.Mo.1971), and there had been an assignment of income. The court, after examining state law, found that the adopted plan had been reversible and, therefore, following Jacobs, held that no assignment of income had occurred.

The Eighth Circuit disagreed, saying, 471 F.2d at 277:

“In viewing the applicable Missouri statutes we find the lower court’s interpretations to be untenable as the dissolution proceedings were, in fact, ‘started’ at the time of the shareholders’ approval of the plan of complete liquidation. As a result, the liquidation would have been irreversible as of April 10, 1964, under the laws of Missouri in effect at the time of this dissolution, and on the basis of the test outlined by the District Court we would have to conclude that the taxpayers’ gifts were anticipatory assignments of the inherent gains and thus taxable to him.
“However, a review of the pertinent Federal law in this area convinces us that we must further reject the lower court’s finding that the crucial question in this case is, in effect, a determination of whether it was technically possible under Missouri law for the taxpayer to abandon the impending dissolution between the time of his gift and the time of the actual liquidation distributions. While Jacobs suggests such a test, we cannot concur in its application herein. Instead, we must sustain appellant’s contention that the realities and substance of the events must govern our determination, rather than formalities and remote hypothetical possibilities. Corliss v. Bowers, 281 U.S. 376, 50 S.Ct. 336, 74 L.Ed. 916 (1930); Howard Cook, 5 T.C. 908 (1945).”

Among the cases discussed in Hudspeth was the Tax Court’s decision in the instant case, Kinsey v. Commissioner, 58 T.C. 259. The Eighth Circuit analyzed the Tax Court decision as follows:

“* * Although the donee had received a majority interest in the corporation, the court distinguished Rushing [52 T.C. 888], by noting that a two-thirds vote of the shareholders would have been required to rescind the earlier authorization to liquidate and thus the donee could not have suspended the dissolution on its own. The taxpayer in Kinsey had argued, like the taxpayer herein, that the date of the gift preceded the time when an enforceable right to the liquidation proceeds accrued (i. e., when the corporation’s board passed the final resolution of dissolution), but the court held:
“ ‘With so much having transpired not only before the date of Kinsey’s gift but also before the date of the final resolution to dissolve in September, we cannot consider the September 15 resolution a necessary and important accessory to the April authorization to liquidate. This final resolution was truly a mere formality, required by state law to officially bring the liquidation to an end.’ ” 471 F.2d at 280.

The Eighth Circuit continued:

“Similarly, the corporation’s filing of the Articles of Dissolution and Liquidation with the state of Missouri [i. e. the filings by MMS, the corporation involved in Hudspeth] were merely ministerial acts necessary to complete the liquidation under state law. We cannot countenance transfers such as presented herein and eviscerate established principles of anticipatory assignment of income by considering remote, hypothetically possible abandonments in the face of unrebutted evidence that the taxpayer intended to and did, in fact, complete the liquidation of his corporation. Through his continued control of the corporation he had foreclosed the possibility of having his intent vitiated. He had made contributions not of stock, but of the proceeds of the liquidation, and he is properly taxable on the gain arising therefrom.” 471 F.2d at 280.

The Missouri law and the retention by the donor of a majority of the stock in Hudspeth made it a stronger case for the Commissioner than the instant case. But we believe that the basic principle stated by the Eighth Circuit — “that the realities and substance of the events must govern our determination, rather than formalities and remote hypothetical possibilities” — is applicable here, and should control.

The realities and substance of the events in this case are that a plan of liquidation of Container under § 337 had been adopted by its directors and shareholders; that said decision could only have been reversed by a two-thirds vote of the shareholders; that although De-Pauw had a majority of the shares it did not have two-thirds; and if one or more of the other shareholders sufficient to make up two-thirds had joined DePauw in attempting to stop the liquidation, the practical effect would have been to jeopardize the right of the shareholders to treat the previous distributions as capital gains rather than ordinary income and to subject the corporation to a tax on the property sold to Boise. Moreover, it would have been contrary to DePauw’s policy of liquidating shares of stock given to it, whereas the completion of the liquidation was in accord both with that policy and with the obvious intention of Kinsey.

Realistically considered, in the light of all the circumstances, the transfer of the Container stock to DePauw was an anticipatory assignment of the liquidation proceeds. Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731 (1930); Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940).

The decision of the Tax Court is affirmed.

      . All dates referred to are in 1965, unless otherwise indicated.

      . In their 1965 return Kinsey and his wife included, as a distribution in liquidation, entitled to capital gain treatment, the gain realized by them upon the distribution by Container of the LaPorte and Carolina stock.

      . Under the agreement Container was to receive $533,334, Carolina $800,000 and LaPorte $666,666.

      . Within a specified three-year period, beginning September 15, 1965.

      . Conn.Gen.Stat.Anno., § 33-376 (c), § 33-329(d).

      . On the same date, Carolina transferred all of its real property to Boise for $800,000, and LaPorte transferred all of its real property to Boise for $666,660.

      . With the exception of assets in the amount of $26,335.47, which were retained to satisfy accounts payable and taxes and to provide a reserve for expenses.

      . During the 1965 taxable year Container distributed $961,935.01 to the Kinseys. The major portions of this amount, $365,-821.20 and $485,322.79, represented the value of the stock of Carolina and LaPorte, respectively, which was distributed to the Kinseys on April 30, 1965.