author: COFFIN, Chief Judge.

text:
    UNITED STATES of America, Appellee, v. Harry F. SEUSS, Defendant, Appellant.
    Nos. 72-1226, 72-1227.
    United States Court of Appeals, First Circuit.
    Heard Dec. 11, 1972.
    Decided Feb. 16, 1973.
    Certiorari Denied June 4,1973.
    See 93 S.Ct,. 2751.

      A. David Mazzone, Boston, Mass., with whom Donahue & Donahue, Richard K. Donahue, Lowell, Mass., Moul-ton, Looney, Mazzone, Falk & Markham and Robert D. City, Boston, Mass., were on brief, for appellant.
    James B. Krasnoo, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges.
   COFFIN, Chief Judge.

Defendant, a meat inspector for the United States Department of Agriculture, was convicted on two counts of accepting a gift, money, or other thing of value from a person, firm, or corporation engaged in interstate commerce, under 21 U.S.C. § 90, now 21 U.S.C. § 622, and one count of conspiring to defraud the government of the honest, conscientious, and valuable performance of meat inspection functions, under 18 U.S.C. § 371. He attacks the statute as vague, the conviction as invalid for lack of proof that he accepted a thing of value from a statutorily defined offeror, and the admission of evidence with regard to the conspiracy count of 49 acts which occurred before the five-year period prior to indictment subject to scrutiny under the statute of limitations, 18 U.S. C. § 3282.

The evidence revealed a practice on the part of Colonial Provision Co., Inc., a meat processing company engaged in interstate commerce, to give meat inspectors, including defendant, meat products and other things of value on request. A quality control analyst of Colonial testified that on the two occasions made the subject of the substantive counts he personally prepared an inventory document with defendant’s initials on it and ordered and delivered food to defendant. He also stated that he and defendant violated federal sampling procedures on several occasions. Both the plant superintendent and the executive vice-president testified to the existence of the company policy and their authorization and personal approval, respectively, of the particular transactions involved. After defense motions to dismiss and for acquittal were denied, the case went to the jury which convicted defendant on two of the three substantive counts submitted to it and on the conspiracy count. The defendant appeals from the convictions and the concurrent sentences of two years imprisonment and suspended fines of $1,000 imposed by the court.

Appellant raises a sophisticated vagueness claim. He admits that the words of the statute are perfectly clear ■ — receiving a thing of value from a person, firm, or corporation engaged in interstate commerce. But he claims that they are so broad — e. g., covering birthday gifts hand-delivered by a mother who lives in New Hampshire to her son living in Massachusetts and promotional mailings that include free pencils, calendars or the like — -that Congress could not have intended to prohibit all matters literally covered. Thus, he concludes, an inspector has no way of knowing exactly which receipts are banned and which permissible. The government counters that the statute is generally clear, that there can be no doubt that it covers one who, like defendant, is a meat inspector who accepts meat products from a meat processing company, and that even if the gift-bearing interstate-travelling mother is arguably covered, one as to whom the statute clearly applies may not challenge the statute’s vagueness as to other, marginal cases.

Though the defendant challenges the statute for vagueness, see Goguen v. Smith, 471 F.2d 88 (1st Cir. 1972), we find that a reasonable, if not obvious, construction of the statute avoids any possible vagueness problems which are alleged to inhere in its overbreath. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954).

Part 3 of the statute, under which defendant was convicted, provides:

“[A]ny inspector, deputy inspector, chief inspector, or other officer or employee of the United States authorized to perform any of the duties prescribed by this subchapter [now sub-chapter I of Chapter 12 (Meat Inspection) of Title 21] . . . who shall receive or accept from any person, firm, or corporation engaged in interstate or foreign commerce any gift, money, or other thing of value, given with any purpose or intent whatsoever, shall be deemed guilty of a felony . . . .” 21 U.S.C. § 90, now 21 U.S.C. § 622.

We have found no judicial construction of this provision, which has been on the books for over half a century, but we draw support for our interpretation from the legislative purpose, the regulations promulgated by the Department of Agriculture to govern “employee responsibilities and conduct,” 7 C.F.R. §§ 0.-735-1 et seq., and the general bribery statute for federal officials, 18 U.S.C. § 201.

First, and most significantly, we think it clear that the statute prohibits the officials authorized to perform the prescribed inspection duties from accepting things of value in connection with or arising out of the performance of their official duties. This common sense interpretation stems first from consideration of the legislative purpose. The Meat Inspection Act of 1907, 34 Stat. 1264, passed in response to the unsanitary conditions in the meat packing industry, revealed in Upton Sinclair’s expose, “The Jungle”, was designed to insure that meat products sold to the consumer be clean and safe. A system of federal inspection was created and the inspectors subjected to strict regulation lest their corruption — or the appearance of it — undermine the quality of meat or the public’s trust in their supervision of meat quality. The statute’s amendment in 1967, which expanded the scope and severity of federal regulation, did not affect, except for two minor, technical changes, the instant criminal provision, or its purpose of preventing corruption of the regulators. P.L. 90-201, 81 Stat. 584, 1967 U.S.Code Cong. & Admin. News, pp. 636-658, 2188-2213. Although food purity statutes must be read broadly to protect the public from adulterated food, United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 84 S.Ct. 559, 11 L.Ed.2d 536 (1964); United States v. Cassaro, Inc., 443 F.2d 153 (1st Cir. 1971), and to insure public confidence in governmental regulation, they need not be stretched to cover more than their obvious purpose. Congress could not have thought that inspectors would be less rigorous in their scrutiny, nor the public less certain of their diligence, because they received birthday gifts from members of their family.

This self-evident construction of Congressional intent is reflected in the Department’s personnel regulation regarding “Gifts, entertainment and favors”, 7 C.F.R. § 0.735-12. The regulation first proscribes broadly the receipt by an employee of any thing of monetary value from one who (1) “[h]as, or is seeking to obtain, contractual or other . financial relations with the Department”, (2) “[cjonducts operations or activities that are regulated by the Department” or (3) “T'hjas interests that may be substantially affected by the performance or nonperformance of [the employee’s] duty.” Subsection (b) of the regulation then explains that this broad prophylactic rule shall not be interpreted to prohibit:

“(1) Acceptance of any of the usual courtesies in an obvious family or personal relationship (such as those between the employee and his parents, spouse, children, or close personal friends) when the circumstances make it clear that it is those relationships rather than the business of the persons concerned which are the motivating factors.”
or
“(4) The exchange of usual social courtesies which are wholly free of any embarrassing or improper implications.”

This regulation, and others concerning conflict of interest and relations to those regulated (§§ 0.735-13, 14, 21), thus recognize that meat inspectors are normal social beings — with family and friends — and that while some of their intimates may be persons engaged in commerce (a phrase discussed below), the exchange of gifts is a function of their personal rather than business lives. Although the regulations specifically direct each employee’s attention to all the statutory provisions, including the instant one, relevant to their duties, § 0.-735-24, we need not rest on these regulations, which are part of an internal personnel manual designed primarily as the basis for departmental disciplinary proceedings, see § 0.735-5, as the definitive construction of this criminal statute. See Champlin Refining Co. v. Corporation Comm’n of Okl., 286 U.S. 210, 242-243, 52 S.Ct. 559, 76 L.Ed. 1062 (1932). It is enough to note that the Department has already drawn the basic distinction which we find in the statute.

Our interpretation is also supported by 18 U.S.C. § 201, the general federal bribery statute and its construction in United States v. Irwin, 354 F.2d 192 (2d Cir. 1965), to which defendant refers us to pinpoint what he claims is the inadequacy of the statute before us. In Irwin, the court considered §§ 201(f) and (g) which prohibit, respectively, the giving to or accepting by a public official of anything of value “for or because of any official act performed or to be performed by such public official”. As the court there properly noted, those words, indicating a causal relationship to specific acts, could well be read as requiring a specific intent to alter official conduct. 354 F.2d at 197. Use of such words in § 622, which defendant suggests would provide adequate warning, would, however, destroy the explicit Congressional purpose not to require any intent in Part 3. Although words such as those we suggest above, requiring an objective jury determination that the gifts are in connection with or arising out of the performance of official duties, could concededly have been used here without subverting the no-intent clause, Congress might have thought such a phrase surplusage, in light of the statute’s evident meaning.

The defendant could not complain, nor did he, that the evidence here was insufficient to prove connection with his official duties or that the court’s instructions were erroneous because of the omission of a reference to this requirement. The evidence here was abundant in this regard and rendered the district court’s omission, obviously understandable in light of the lack of prior interpretation of this statute, harmless. Naturally, district courts in the future will, given our interpretation, instruct the jury that to convict they must find, beyond a reasonable doubt, a connection with official functions, although of course proof may, as with other elements, be by circumstantial evidence.

We turn then to defendant’s second and more impressive argument. He claims that since Part 1 of § 622, which covers the giving of intentional bribes, refers to “any person, firm, or corporation, or any agent or employee of any person, firm, or corporation” and Part 2, which covers the receipt of intentional bribes, refers to “any person, firm, or corporation, or officers, agents, or employees thereof”, the limitation in Part 3 to “any person, firm, or corporation engaged in interstate or foreign commerce” — without any mention of employees, agents, or officers — must mean that only businesses or proprietors of businesses engaged in interstate commerce are covered. Although his suggestion is facially plausible and attractive, we believe that it would improperly and unnecessarily restrict the intended scope of this statute. Defendant’s proposal would mean that even though the government had established a gift by an employee of a company engaged in interstate commerce, it would further have to prove that the employee was acting as the agent of his employer who was the real donor. But this agency element would defeat Congress’ purpose in avoiding even the appearance of impropriety, for it would mean that even acceptance of a car from a pool of employees of a meat packing concern, purporting to be a birthday gift, could not be punishable unless the government could present some proof that this gift was pursuant to the urging, suggestions, direction, or policy of the company’s board, officers, or supervisors. The mere fact that there is abundant proof of such a corporation policy in the case before us is no justification for so restricting the statute. Nor is such a narrow interpretation necessary to prevent improper application of this section to one who is a gift-bearing personal friend of the inspector but who happens to work for a corporation, such as an airline, engaged in interstate or foreign commerce. The requirement that there be a nexus between the donor’s interests or occupation and the inspector’s official functions, see n. 4 supra, is adequate protection.

Finally, reading the phrase “person engaged in interstate commerce” in Part 3 to cover employees, officers, and agents of a business engaged in interstate commerce, neither introduces a novel use of the phrase, see, e. g., 29 U.S.C. §§ 206(a), 207(a)(1), nor renders meaningless Congress’ more limited enumeration in this part. Parts 1 and 2 require a showing of specific intent to corrupt. A corporation or firm is not normally thought capable of such a mental state. For that reason, Congress felt obliged to enumerate the natural persons who could be shown to bear the evil purpose. In Part 3, Congress eliminated all intent requirements. It was thus unnecessary to specify particular agents and similarly unnecessary to restrict the term “person” to proprietors, as was done in the earlier parts.

Lastly, the defendant complains because proof of 49 acts which were said to have occurred before the relevant date set by the statute of limitations was admitted into evidence. Although the district court denied defendant’s motion to dismiss the conspiracy count because of its allegation of these 49 pre-statute of limitations overt acts, it permitted evidence of those acts to be introduced only to prove the nature and continuity of the conspiracy. The defendant admits that the pre-statute of limitations evidence was admissible “to show the nature of the scheme and the intent”, but only “if it is connected up with the scheme existing when the overt acts were performed”, properly citing United States v. Blosser, 440 F.2d 697, 699 (10th Cir. 1971), for the proposition. See also United States v. Borelli, 336 F.2d 376, 385 (2d Cir. 1964).

We do not disagree with the proposition but fail to see how it advances defendant’s case. It is true that at the time of the overt acts in 1967 (which also formed the basis for the substantive counts), defendant was not assigned to Colonial, as he had been in the first six months of 1965 when most of the pre-statute of limitations acts occurred. But the indictment was not limited to a conspiracy to corrupt his behavior only during the period of the alleged conspiracy or to corrupt him only by payments at the time he was assigned to Colonial. Rather it alleged a general conspiracy to defraud the government of the honest performance of defendant’s official duties free from the acceptance of things of value. The evidence as to the offer and acceptance of things of value by defendant in both 1965 and 1967, his violation of several federal sampling procedures in 1965, the rotating assignment, of meat inspectors to particular plants for six months, and the possibility that during an assignment to one plant, an inspector might work at another, was sufficient to allow the jury to infer that there was one conspiracy, starting in 1965 and continuing into 1967, and that the transfers in 1967 could have been either payments for past acts or inducements to misconduct in the future should defendant work at the Colonial plant again. In the absence of any evidence indicating defendant’s withdrawal from the conspiracy, or any evidence indicating such “a change in operations” as to vitiate any inference of agreement drawn from prior acts, Borelli, supra, 336 F.2d at 385, we do not see how the admissibility of the pre-statute of limitations evidence was erroneous.

Judgments affirmed.

      . To avoid confusion in subsequent cases, we will refer to this statute by its present designation, 21 U.S.C. § 622, although the renumbering and the two minor amendments to this section, see n. 5 infra, did not become effective until after the dates of the events in this case.

      . The government also argues that the defendant may not raise the issue because he failed to raise it before the trial court, by either a motion to dismiss or as a ground for his motion for acquittal. However, Fed.R.Crim.P. 12(b)(2) provides that “Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.” The defense of failure of an indictment to charge an offense includes the claim that the statute apparently creating the offense is unconstitutional. 8 Moore’s Federal Practice U 12.03 [2]. That objection may be raised for the first time on appeal. Carlson v. United States, 296 F.2d 909 (9th Cir. 1961).

      . Although the statute is written as one sentence, the parties have properly subdivided it for purposes of analysis into three, informally designated parts. Part 1 proscribes the giving or offering by any person, firm, or corporation, or any agent or employee of such, of money or other thing of value to an official authorized to perform the dirties prescribed by the Meat Inspection Act, with “intent to in-influenee” that official “in the discharge of any duty” under the Act. Part 2 is a parallel provision prohibiting the atí-ceptance by such official of a thing of value from a person, firm, or corporation, or officers, agents, or employees thereof, “given with intent to influence his official action”. Part 3, in contrast, specifically eliminates all intent requirements, and limits the covered donors to any person, firm, or corporation engaged in interstate or foreign commerce. See discussion infra. The indictments, which used the phrase regarding engagement in commerce and failed to allege any intent, obviously were intended to charge a violation of Part 3.

      . We do not mean by this to include within the statute’s ban gifts which could be merely used in connection with the performance of official duties, such as a watch, given by one whose occupation or interests display no nexus to the inspector’s functions, such as a friend who works for an airline. It is the donor, rather than the gift, which must be related to the official functions.

      . The word “commerce” was substituted for the words “interstate or foreign commerce” and the word “Secretary” for the title “Secretary of Agriculture”, because both of the new terms were defined for purposes of the Act in the amended definitional section, 21 U.S.C. § 601. See 1967 U.S.Code Cong. & Admin.News, pp. 637, 641-642.

      . The regulations were promulgated pursuant to Executive Order 11222 of May 8, 1965 and 5 C.F.R. § 735.104, which provide for agency regulations defining the ethical restraints on employees. Although § 622 also provides for summary discharge of those violating its proscriptions, the statute is essentially a criminal one and the Secretary of Agriculture is not given authority to define its meaning or terms.

      . We have already indicated we believe that the statute on its face is clear and gives meat inspectors adequate notice of what conduct is prohibited. We note in addition that the regulations were originally promulgated on June 18, 1966, 31 F.R. 8528, before the dates of the substantive offenses and the overt acts of the conspiracy committed by the defendant.

      . Tlie absence of a requirement that the government prove intent, either of the donor to influence official conduct, or of the recipient to alter his performance, does not mean that the statute is one of strict liability. The receiving or accepting official must, as the indictment stated and the district court instructed, at least do so knowingly — i. e., be aware that the transfer is one of value and the transferor one engaged in interstate commerce. Of course, as with other mental elements, the jury may infer its presence from the surrounding circumstances. But certainly Congress could not have intended to punish one who receives a birthday gift from an acquaintance, unaware that the latter was coerced or bribed into giving it by a meat processor, or one who wins a raffle prize, not knowing that the game was fixed in his favor.

      . Defendant suggests another horrible— that he could be prosecuted for receiving in the mail an unsolicited promotional circular containing a free pen or calendar. This fear is insubstantial for two reasons. First, there would be insufficient evidence of connection with official duties. As we noted in n. 4 supra,, it is not enough to show that the gift is useable in connection with the performance of inspection functions, as so many common gifts are — pens, watches, suits, ties, and the like. The person must bear some connection to the recipient’s official life. Second, we think the statute was obviously not intended to cover trivial gratuities like a pen. Again the regulation, from which defendant seems to have garnered his hypothetical horribles, indicates what we take to be the self-evident reading of the statute:
      “Acceptance of unsolicited advertising or promotional material, such as pens, pencils, note pads, calendars, and other things of nominal value.”

      is not prohibited. 7 C.F.R. § 0.735-12 (b) (3) [emphasis added]. We would only add that wo doubt that solicitation of a ball-point pen because one’s own ran dry, even from a meat processor in the course of a plant inspection tour, would be punishable.

      . Should we be wrong in this interpretation, and the term “person” in Part 3 be limited to proprietors, the defendant would not gain. There was abundant evidence here that the three employees named in the indictment wore acting on behalf of Colonial Provision. All testified to the general policy of the corporation to give meat products to meat inspectors, described the general procedures designed to implement that policy and their use in the particular transactions involved. Moreover, two were in policy-making positions and authorized or approved both the general corporate policy and the particular transactions alleged. There was no hint of a personal, non-corporate motivation or reason for any of these employees to provide defendant with the meat products.
      Nor coul'd the indictment be said to fail to charge an offense under the statute according to the more restricted interpreta- ■ tion, see n. 2 supra. Even if, pursuant to that view, it would be preferable to have alleged that the individuals were employees of a corporation engaged in interstate commerce, we could not say that this indictment failed to state an offense, given that a corporate gift could only be established by proof of the conduct of the corporate employees or agents.
      Finally, the court’s instruction could not be said to be erroneous, not to mention plainly erroneous, since no objections were preserved. The court instructed that there were five elements to the offense —the third of which was that “Colonial Provision Company was engaged in interstate commerce in meat and meat products” and the fourth that the defendant “accepted something of value from employees of the Colonial Provision Company.”


source: Caselaw Access Project

author: WALLACE, Circuit Judge:

license: Public Domain

text:
    Douglas A. BULLIS et al., Plaintiffs-Appellants, v. TWENTIETH CENTURY-FOX FILM CORPORATION, a Delaware corporation, Defendant-Appellee.
    No. 72-1211.
    United States Court of Appeals, Ninth Circuit.
    Feb. 15, 1973.
    W. Patrick O’Connor (argued), A. William Barlow, Honolulu, Hawaii, for plaintiffs-appellants.
    William L. Fleming (argued), of Cades Schutte Fleming & Wright, Honolulu, Hawaii, for defendant-appellee.
    Before ELY, CHOY and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

Plaintiffs-appellants sued their employer to recover damages for burns sustained in a fire. The fire occurred on board a mock-up vessel used by Twentieth Century-Fox Film. Corporation in the filming of the movie “TORA! TORA! TORA!” The mock-up had been constructed upon three floating barges and was designed to resemble the battleships USS Nevada and USS Arizona. About March 12, 1969, the defendant moved the mock-up from the shipyard where it was built to the vicinity of Ford Island at Pearl Harbor. It remained in that area until early May, 1969, when it was dismantled.

On April 12, 1969, the plaintiffs, all off-duty servicemen, were cast as extras in the filming of a battle scene. They were hired for that day only, and the record does not indicate that any of them worked for the defendant on a previous day or on a day subsequent to the day of their injuries. They were to portray crewmen of the USS Nevada during an attack and to act confused while running up and down ladders between decks of the superstructure.

The plaintiffs went aboard the mockup and were told about special-effects explosions and their locations. Shortly the mock-up was underway, under tow by a tug to a position a few hundred yards offshore. About an hour later, the filming began and lasted for five minutes. During the action, the plaintiffs were burned by the explosion of a nearby “fireball bomb,” a device rigged to propel flaming gasoline after an initial explosion. They were given prompt medical attention and transferred to hospitals. The mock-up redocked half an hour later after a two-hour voyage of about 500 yards.

In their suit, the plaintiffs alleged that their employer had been negligent in its direction of their acting and had failed to provide them with a safe and seaworthy place to work. Jurisdiction was alleged under diversity of citizenship, general maritime law (unseaworthiness) and the Jones Act, 46 U.S.C. § 688. After discovery, the defendant-employer moved for summary judgment, arguing that, as a matter of law, the plaintiffs were not seamen within the meaning of the Jones Act. Consequently, Fox argued, they were relegated to a compensation remedy under state or federal law. The trial judge granted the motion for summary judgment. This appeal followed; we affirm.

Plaintiffs argue that they are, in fact, Jones Act seamen. ■ Both parties agree that the classic three-part test of seaman status applies.

There are three essential elements in the term “seaman” as used in the Jones Act. First, the vessel on which the claimant is employed must be in navigation. Second, there must be a more or less permanent connection with the vessel, and third, the claimant must be aboard primarily to aid in navigation. Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273, 274 (5th Cir. 1966).

See also Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959); McKie v. Diamond Marine Co., 204 F.2d 132 (5th Cir. 1953); Puget Sound Freight Lines v. Marshall, 125 F.2d 876, 879 (9th Cir. 1942); Norris, Maritime Personal Injuries §§ 7-8 (2d ed. 1966). However, though the test seems simply stated, the result “depends largely on the facts of the particular case and the activity in which [the claimant] was engaged at the time of the injury.” Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190, 72 S.Ct. 216, 218, 92 L.Ed. 205 (1952).

The facts in this care are unique. The plaintiffs were obviously extra actors, but were they also Jones Act seamen? Fox concedes that the mock-up was in navigation at the time of the accident, but challenges the plaintiffs’ assertion that they satisfy the second and third elements of the test. Admittedly the Jones Act should be liberally construed “to accomplish its beneficient purposes.” Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 790, 69 S.Ct. 1317, 1321, 93 L.Ed. 1692 (1949). See also Williams v. Tide Water Associated Oil Co., 227 F.2d 791, 794 (9th Cir. 1955), cert. denied, 350 U.S. 960, 76 S.Ct. 348, 100 L.Ed. 834 (1956). As a result of that policy, courts have held diverse persons to be seamen, including a bartender, a telephone operator, a clerk, and a musician.

The second requirement for seaman status is that there be a more or less permanent connection with the vessel. Significantly the connection may be less permanent, but it cannot be temporary or transitory. In this case, the plaintiffs were to act for about five minutes while on board a mock-up for a cruise of some two hours. Thus their relation to the mock-up “was purely transitory — both in point of work to be done and the time of its duration.” Thibodeaux v. J. Ray McDermott & Co., 276 F.2d 42, 47 (5th Cir. I960). In no sense were they permanently attached to it; and consequently they cannot be Jones Act seamen. Since we have determined that the plaintiffs fail the second requirement, we need not discuss the third.

Though neither party raised the issue, the trial court’s summary judgment also dismissed the plaintiffs’ claim founded upon the alleged unseaworthiness of the mock-up. The duty to provide a safe place to work, that is, to furnish a vessel reasonably fit for its intended use, extends to those “doing a seaman’s work and incurring a seaman’s hazards.” Seas Shipping Co. v. Sier-acki, 328 U.S. 85, 99, 66 S.Ct. 872, 880, 90 L.Ed. 1099 (1946). The warranty is not available to passengers or to others who are not doing the work traditionally performed by seamen. The plaintiffs have not shown that their work was the type of work traditionally done by the ship’s crew. Consequently they were not entitled to a warranty of seaworthiness, and the trial judge correctly dismissed this claim also.

Affirmed.

      . The only similar case is In re Famous Players Lasky Corp., 30 F.2d 402 (S.D.Cal.1929). There the claimants were employed by the film company as seamen to sail a ship during the making of a movie. Although they acted in the movie, the court found that they were also “seamen in the true sense of that word” since they did “handle, reef, and steer” the ship. Id. at 404. The present plaintiffs merely acted.

      . The J. S. Warden, 175 F. 314 (S.D.N.Y.1910).

      . Keefe v. Matson Nav. Co., 46 F.2d 123 (W.D.Wash.1930).

      . The Sultana, 23 F.Cas. 379 (No. 13,602) (D.Mich.1857).

      . The Sea Lark, 14 F.2d 201 (W.D.Wash. 1926).

      . The requirement might be better phrased as a permanent attachment. See Norton v. Warner Co., 321 U.S. 565, 573, 64 S.Ct. 747. 88 L.Ed. 931 (1944).

      . Thibodeaux was a welder; he had worked on board the barge McDermott No. 5 for four days prior to his death. See also Rotolo v. Halliburton Co., 317 F.2d 9, 13 (5th Cir.), cert. denied, 375 U.S. 852, 84 S.Ct. 111, 11 L.Ed.2d 79 (1963).

      . The plaintiffs emphasize the short life of the mock-up (about two months). They argue that their relationship is thus more substantial. To relate permanency to the life of the vessel distorts the question. Had the mock-up sunk during the events of April 12, 1969, or had it remained afloat in film use for another two years, the result should be no different. The connection required depends upon the relationship of the claimant to the vessel and not upon the duration of the vessel’s life.

      . One court has suggested that the permanency requirement is the fundamental distinction between seamen and longshoremen. A. L. Mechling Barge Line v. Bassett, 119 F.2d 995, 998 (7th Cir. 1941). See also Weiss v. Central R.R., 235 F.2d 309, 313, 315 (2d Cir. 1956) (Lumbard, J., dissenting).

      . It is not inconceivable that an actor, under certain circumstances, might be a seaman in the same manner as a musician or bartender might qualify. See cases cited at nn. 5-8, supra. For example, if a cruise ship advertised a nightly Shakespearean festival en route, then the festival actors might well be seamen. They would probably contribute “to the function of the vessel or to the accomplishment of its mission.” Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959). Such was not the case here.

      . Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).

      . Kermarec v. Compagnie Generale Trans-atlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959).

      . See United Pilots Ass’n v. Halecki, 358 U.S. 613, 617-618, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 413, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Partenweederei, MS Belgrano v. Weigel, 299 F.2d 897, 901-902 (9th Cir.), cert. denied, 371 U.S. 830, 83 S.Ct. 49, 9 L.Ed.2d 67 (1962).


author: HAYNSWORTH, Chief Judge: WINTER, Circuit Judge

text:
    Mrs. Susan COHEN, Appellee, v. CHESTERFIELD COUNTY SCHOOL BOARD and Dr. Robert F. Kelly, Appellants, Equal Employment Opportunity Commission, Amicus Curiae.
    No. 71-1707.
    United States Court of Appeals, Fourth Circuit.
    Resubmitted Jan. 2,1973.
    Decided Jan. 15, 1973.
    Certiorari Granted April 23,1973.
    See 93 S.Ct. 1925.
    Winter, Circuit Judge, dissented and filed opinion in which Craven, and Butzner, Circuit Judges, joined.
    Samuel W. Hixon, III, Richmond, Va. (Williams, Mullen & Christian, Richmond, Va., and Frederick T. Gray, Robert E. Eicher, Richmond, Va., Oliver D. Rudy and Morris E. Mason, Chesterfield, Va., on brief), for appellants.
    Philip J. Hirschkop, Alexandria, Va. (John B. Mann, Richmond, Va., on brief), for appellee.
    John de J. Pemberton, Jr., Acting Gen. Counsel, Julia P. Cooper, Chief, Appellate Section, Ed Katze, Dist. Atty., Washington District Office, Washington, D. C., on brief, for E. E. O. C.
    Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, en banc.
   HAYNSWORTH, Chief Judge:

In this action brought under 42 U.S.C. § 1983, the plaintiff challenges the maternity leave regulation of the Chesterfield County School Board on the ground that it deprives her of her rights to due process and to equal protection of the laws guaranteed under the Fourteenth Amendment to the Constitution. The challenged rule requires, with limited flexibility, that teachers who become pregnant must go on maternity leave at the end of the fifth month of pregnancy. This appeal is taken from the District Court’s decision that the maternity leave rule deprived Mrs. Cohen of equal protection: “Because pregnancy, though unique to women, is like other medical conditions, the failure to treat it as such amounts to discrimination which is without rational basis, and therefore is violative of the equal protection clause of the Fourteenth Amendment.” Cohen v. Chesterfield County School Board, E.D.Va., 326 F.Supp. 1159, 1161.

When Mrs. Cohen became pregnant she was a social studies teacher at Mid-lothian High School in Chesterfield County. Her contract with the School Board required her to comply with all state and local school laws and regulations. In compliance with the Board’s maternity provisions, Mrs. Cohen notified the Board on November 2, 1970 that she was pregnant and that her estimated date of delivery was April 28, 1971. With the written opinion of her obstetrician that she could work as long as she chose, she requested an extension until April 1, 1971 of the date she would stop teaching. The School Board denied this request, granting her leave effective December 18, 1970. In a subsequent personal appearance before the Board, Mrs. Cohen made an alternate request of an extension until January 21, 1971 — the end of the semester. This request, supported by a recommendation of her principal, was also denied. The District Court found that the basis of the denials of the requested extensions was that “the School Board had a replacement available, and felt it proper to abide by its regulation.”

The plaintiff asserts no claim of arbitrariness in the denial of the alternative request of an extension until January 21, 1971. She has made no attempt to show that a qualified replacement would have been as readily available then, or in April, as in December. She stands squarely on a broader constitutional claim which would entirely exclude school officials from participation in the decision on the date of the maternity leave. That is for her, alone, to determine, she says, else she is subject to impermissible discrimination based upon sex.

We conclude, first, that the regulation is not an invidious discrimination based upon sex. It does not apply to women in an area in which they may compete with men. Secondly, school officials have a duty to provide, as best they can, for continuity in the instruction of children and, to that end, they have a legitimate interest in determining reasonable dates for the commencement of maternity leaves and a right to fix them.

We do not accept Mrs. Cohen’s premise that the regulation’s provision which denies her, with the advice of her doctor, the right to decide when her maternity leave will begin is an invidious classification based upon sex which may be justified only by some compelling state interest./Sueh invidious discriminations are found in situations in which the sexes are in actual or potential competition. , A statutory preference for men over women in the appointment of administrators was recently stricken by the Supreme Court as quite unjustified by considerations of administrative convenience.

Only women become pregnant; only women become mothers. But Mrs. Cohen’s leap from those physical facts to the conclusion that any regulation of pregnancy and maternity is an invidious classification by sex is merely simplistic. The fact that only women experience pregnancy and motherhood removes all possibility of competition between the sexes in this area. No man-made law or regulation excludes males from those experiences, and no such laws or regulations can relieve females from all of the burdens which naturally accompany the joys and blessings of motherhood. Pregnancy and motherhood do have a great impact on the lives of women, and, if that impact be reasonably noticed by a governmental regulation, it is not to be condemned as an invidious classification.

We are not accustomed to thinking, as sex classifications, of statutes making it a crime for a man forcefully to ravish a woman, or, without force, carnally to know a female child under a certain age. Military regulations requiring all personnel to be clean shaven may be suspect on other grounds, but not because they have no application to females. Prohibition or licensing of prostitution is a patent regulation of sexual activity, the burden of which falls primarily on females, but it has not been thought an invidious sex classification. What of regulations requiring adult women sunning themselves on a public beach to keep their breasts covered? Is that an invidious discrimination based upon sex, a denial of equal protection because the flat and hairy chest of a male lawfully may be exposed?

The situation confronting us is not unlike that which occasioned the memorable lament of Anatole France, “the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” Concern that the weight of the law falls more heavily upon the poor has been with us for years. Undoubtedly, some laws are directed to offenses which are unlikely to be committed by the wealthy, but there are also crimes which no poor person could commit. If the rich are unlikely to find spaces beneath bridges havens of rest, poor people are unlikely to find an opportunity to embezzle the funds of a national bank or to perpetrate a stock fraud. There are some laws which are not likely to be violated by the rich; there are others which are not likely to be violated by the poor. France stated his lament as he looked at some of such laws from the perspective of the poor, but the law may hold all of us accountable for antisocial conduct despite the differences in the temptations which confront us.

How can the state deal with pregnancy and maternity in terms of equality with paternity? It cannot, of course. The disabilities and preoccupations of maternity are visited but slightly upon the father. However sympathetic he may be, it is she who must shoulder the principal problems of pregnancy, the labors of childbirth and the care and feeding of the child in the early months of its life.

Pregnancy and maternity are sui generis, and a governmental employer’s notice of them is not an invidious classification by sex.

Still, the regulation must serve some reasonable objective. We think it does.

Here we may take note of the fact that Mrs. Cohen attempts to confine her attack to the rules under which the time of commencement of maternity leave is determined. There she likens pregnancy to illness and other physical disability, contending that failure to treat pregnancy as other disabilities is an unwarranted discrimination.

We think our view should encompass the whole regulation.

There are obvious difficulties in the way of drawing a perfect analogy, as Mrs. Cohen would, between the several conditions contemplated by the maternity leave regulations and physical disabilities.

In the first place, the maternity leave policy of this school system covers an indefinite period of time, after delivery, when the young mother may wish to breast feed her baby or otherwise devote herself primarily to its care. A few weeks after a normal delivery, a healthy young mother is suffering no physical disability. If she chooses to remain on maternity leave for some months thereafter, she does so because of a temporary preference for child-care over a return to teaching and not because of anything remotely resembling illness or physical incapacity.

Even pregnancy is not like illnesses and other disabilities. In this age of wide use of effective contraceptives, pregnancy is usually voluntary. No one wishes to come down with mononucleosis or to break a leg, but a majority of young women do wish to become pregnant, though they seek to select the time for doing so. Female school teachers, like other young women, plan to become pregnant.

Unlike most illnesses and other disabilities, too, pregnancy permits one to foresee its culmination in a period of confinement and to prepare for it. The employer of the pregnant woman need not wait until the clock has struck to search for a replacement. Unexpected illnesses and disabilities may compel resort to a pool of substitute teachers available for short periods of employment, but pregnancy assures an opportunity to secure a more permanent replacement. As planning precedes most pregnancies, planning for the arrangements they necessitate may go hand in hand with them.

That circumstance supplies the justification for the rule that puts the starting of maternity leave, after the fifth month of pregnancy, within the control of school officials rather than in that of each pregnant teacher.

Eighty per cent of the teachers employed in this school system are women. The system is large enough that the Board knows that a certain number of its teachers will become pregnant each year. It knows that many of them will be unable to perform teaching duties over a period of several or many months, while some will be unwilling to do so for several months after the baby’s delivery. The pregnant teacher’s absence is not only predictable; it is of much longer duration than absences caused by such relatively transitory things as respiratory infections and digestive upsets.

Extended absences of teachers can occasion highly objectionable discontinuity in the education of children. When an extended absence is foreseen, the interest of the children is served by the employment of a regular replacement rather than dependence upon a succession of substitutes. That interest is furthered by the rule which starts the maternity leave at the end of the fifth month of pregnancy with the provision that the superintendent may postpone the time upon the teacher’s request and with the approval of her doctor and her principal. Placing ultimate control in school officials rather than in each individual teacher, affords an opportunity for useful planning and specific commitments to replacement teachers, who, otherwise, might not be available.

Mrs. Cohen, in her contract, agreed to abide by the regulations. Her effort to avoid them insofar as she dislikes them in their application to her should not prevail, for the regulations are not without reason. Their purpose may reasonably be regarded as contributing to the better education of the pupils by enabling school officials to arrange a larger degree of continuity in their instruction.

Reversed.

WINTER, Circuit Judge

(dissenting):

Because I disagree with the conclusion of the majority and because the majority’s decision, if it prevails, may well be relied on to invalidate an aspect of the implementation of the Equal Employment Opportunity Act, Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(a),1 respectfully dissent.

The majority concludes that the regulation does not discriminate against women as such; it only discriminates between pregnant teachers and other teachers. “It [the regulation] does not apply to women in an area in which they compete with men.” As to the pregnant school teacher, so the argument runs, the discrimination is permissible because of the need to provide continuity of education in the classroom. Stated otherwise, a uniform date for the beginning of maternity leave is necessary to avoid disruption in the classroom by a sudden and unpredictable need to replace a teacher who delivers prematurely or who suffers a complication of pregnancy necessitating her absence from the classroom.

While superficially appealing, I am not persuaded by this argument and I think it a disingenuous one to be advanced on this record. The record is clear that there is not a high incidence of risk of premature delivery or complications of pregnancy in the beginning of the third trimester of pregnancy — the date that the regulation establishes as the beginning of maternity leave. And on the facts of this case, one can reasonably infer that continuity of the educational process would have been better preserved had Mrs. Cohen been permitted to complete the semester rather than to subject her students to a new teacher at an illogical and avoidable breaking point in the curriculum.

But there is a more fundamental defect in the majority’s opinion. That the regulation is a discrimination based on sex, I think is self-evident. The inescapable truth is as Chief Judge Brown of the Fifth Circuit has stated, dissenting from denial of a motion for rehearing in banc in Phillips v. Martin-Marietta Corporation, 416 F.2d 1257, 1259 (5 Cir. 1969), a case in which an employer who was willing to hire men with preschool-age children for a certain position but not women was held not to have violated Title VII of the Civil Rights Act of 1964:

The distinguishing factor seems to be motherhood versus fatherhood. The question then arises: Is this sex-related? To the simple query the answer is just as simple: Nobody — and this includes Judges, Solomonic or life tenured — has yet seen a male mother. A mother, to oversimplify the simplest biology, must then be a woman.

Chief Judge Brown’s analysis was echoed by Judge Wisdom, also in dissent in Schattman v. Texas Employment Commission, 459 F.2d 32, 42 (5 Cir. 1972), a case asserting the validity of a Texas regulation requiring a pregnant state employee to begin maternity leave not later than two months before her predicted delivery date: “Female employees are the only employees . . . who become pregnant; it follows that they are provisionally dismissed from work on account of their sex . . . .”

I need not concern myself with the applicable test to discriminate validly on the basis of sex — whether “rational relationship to a state objective,” Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), or a compelling state interest, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) — because under either, I think the regulation denies equal protection. The record is literally devoid of any reason, medical or administrative, why a pregnant teacher must accept an enforced leave by the end of the fifth month of pregnancy if she and her doctor conclude that she can perform her duties beyond that date. Of course her employer is entitled to reasonable notice of when the teacher and her doctor conclude her leave should begin, so as to enable the employer to provide an adequate substitute, but it would seem that in most instances notice of not more than thirty days would be ample for that purpose. If I put aside instances where a teacher, male or female, suffers a sudden illness or the need for emergency surgery, and where presumably the teacher has little or no notice of impending prolonged absence, I cannot find in the record, nor can I imagine, any justification for requiring greater certainty as to the effective leave date of a pregnant teacher than of any other teacher, male or female, who may be absent for a prolonged period as a result of elective surgical procedure.

To give an example of my last statement, prostatitis is peculiarly a male disease and in this sense sex related. A prostatectomy which may be required as a result of prostatitis or other chronic disease of the prostate, is rarely performed as an emergency surgicial procedure. Rather, within a reasonable time range, the date for a prostatectomy is scheduled for a date suiting the availability of the hospital and the convenience of the surgeon and the patient. Under general sick leave regulations, a male teacher planning to undergo a prostatectomy is not required to give advance notice of the contemplated operation or to begin sick leave at any specific date, even at a semester break if one should intervene, prior to the operation, or to seek permission to continue work until the operation. Lest it be thought that an elective prostatectomy among male teachers is a rare event, I stress that the general sick leave requirements contain no requirement of notice, a mandatory beginning of sick leave or continuation of employment after notice until surgery for any elective surgery for any teacher, male or female. Yet it cannot be said that the disruptive effect on the students or the burden on the school administration is any less in the case of any elective surgery than the disruption and burden occasioned by a pregnant teacher’s absenting herself to deliver. Indeed, it would be greater since the pregnant teacher would have been required to give notice of her impending confinement and thus school officials would have had ample time in which to find a replacement. To me, the discrimination is obvious.

I agree with the Sixth Circuit’s decision in LaFleur v. Cleveland Board of Education, 465 F.2d 1184 (1972) holding invalid, as a denial of equal protection of the laws, a maternity leave regulation which, like that in the case at bar, required a teacher to begin maternity leave not later than five months before the expected date of normal birth of her child, but which, incidentally, required only two weeks notice of the fact of pregnancy and prohibitied the teacher’s return to her duties earlier than three months after the child’s birth. Both the enforced leave before and after birth were held impermissible, because there was lacking, as here, medical evidence or any other valid reason to support the extended period of mandatory leave. While the court recognized that continuity of classroom instruction and relief of burdensome administrative problems would both be served if the regulation were upheld, it concluded that these problems were no more acute with respect to pregnant teachers than other teachers, male or female, who suffered other actual disabilities; and moreover, that administrative convenience could not be permitted to override “the determinative issues of competence and care” (Stanley v. Illinois, 405 U.S. 645, 657, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551 (1972)). Rejected also was the argument that the teacher was bound by her employment contract which required adherence to the regulation because “constitutional protection does extend to the public servant whose exclusion . is patently arbitrary or discriminatory.” Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216 (1952).

Additional support for my views is found in Robinson v. Rand, 340 F.Supp. 37 (D.Colo.1972); Doe v. Osteopathic Hospital of Wichita, 333 F.Supp. 1357 (D.Kan.1971); Williams v. School District (N.D.Cal.1972); Monell v. Dept. of Social Services (S.D.N.Y.1972); Bravo v. Board of Education, 345 F.Supp. 155 (N.D.Ill.1972); Heath v. Westerville Board of Education, 345 F.Supp. 501 (S.D.Ohio 1972). There is a contrary dictum in the split decision in Schattman v. Texas Employment Commission, supra, indicating that a maternity leave regulation requiring leave to begin not later than two months before the expected delivery date would be valid; but, without expressing any view on the correctness of the dictum, I agree with the Sixth Circuit in LaFleur that Schattman is distinguishable from the instant case on its facts.

CRAVEN and BUTZNER, JJ., authorize me to say that they join in this opinion.

      . Mrs. Cohen’s complaint sought relief also under the Equal Employment Opportunity Act, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) :
      “It shall be an unlawful employment practice for an employer—
      (1) to fail or refuse to hire or to discharge any individual, or otherwise to ^discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; * *
      At the time of the proceedings below, however, state agencies and educational institutions were specifically exempted from the Act. 42 U.S.C. § 2000e(b) ; 42 U.S.C. § 2000e-l. Subsequent to oral argument, these exemptions were repealed by the Equal Employment Opportunity Act of 1972, P.L. 92-261, signed by the President March 24, 1972 and effective immediately. Rules and practices of the defendant in effect when the defendant was exempt from the Equal Employment Opp. Act cannot be the basis for a violation of that Act. This opinion accordingly is limited to consideration of the rights and liabilities of the parties under the Equal Protection Clause of the Fourteenth Amendment.

      . The maternity leave provisions of the Chesterfield County School Board provides :
      “a. Notice in writing must be given to the School Board at least six (6) months prior to the date of expected birth.
      b. Termination of employment of an expectant mother shall become effective at least four (4) months prior to the expected birth of the child. Termination of employment may be extended if the superintendent receives written recommendations from the expectant mother's physician and her principal, and if the superintendent feels that an extension will be in the best interest of the pupils and school involved,
      c. Maternity Leave
      1. Maternity leave must be requested in writing at the time of termination of employment.
      2. Maternity leave will be granted only to those persons who have a record of satisfactory performance.
      3. An individual will be declared eligible for re-employment when she submits written notice from her physician that she is physically fit for full-time employment, and when she can give full assurance that care of the child will cause minimal interference with job responsibilities.
      4. Re-employmont will be guaranteed no later than the first day of the school year following the date that the individual was declared eligible for reemployment.
      5. All personnel benefits accrued, including seniority, will be retained during' maternity leave unless the person concerned shall have accepted other employment.
      6. The school system will have discharged its responsibility under this policy after offering re-employment for the first vacancy that occurs after the individual has been declared eligible for re-employment.

      . Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225.

      . A. France, The Red Lily (1894).

      . 18 U.S.C. §§ 644, 656.

      . 35 U.S.C. §§ 78n, 78ff.

      . Her reasoning would seem to invalidate the provision for extended post-delivery leave during which the teacher-mother has a continuing guarantee of reemployment.

      . Of course, all pregnancies among teachers, as with other women, are not voluntary. See Love’s Labor Lost: New Conceptions of Maternity Leave, 7 Harv.Civ. Rights — Civ. Liberties L.Rev. 260, 283-84, 288.

      . Since we conclude that continuity in instruction reasonably supports the rule we need not consider other personalized reasons advanced in support of the regulation.

      . In addition to Mrs. Cohen, two others began maternity leave in December, 1970.

      . There is no built-in protection against arbitrary application of the rule in particular cases. If extension were denied when no replacement was available or within weeks of the end of the school year, a different case would be presented.

      . Concurring in Healy v. James, 408 U.S. 169, 202, 92 S.Ct. 2338, 2356, 33 L.Ed.2d 266, Mr. Justice Rehnquist wrote:
      “Cases such as United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), and Pickering v. Board of Education etc., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), make it equally clear that the government in its capacity as employer also differs constitutionally from the government in its capacity as the sov-eign executing criminal laws.”

      . See, McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393.

      . The point is being widely litigated with diverse results. See, e. g., Schattman v. Texas Employment Commission, 5 Cir., 459 F.2d 32; LaFleur v. Cleveland Bd. of Educ., N.D.Ohio, 326 F.Supp. 1208; Doe v. Osteopathic Hospital of Wichita, D.Kansas, 333 F.Supp. 1357; Robinson v. Rand, D.Colo., 340 F.Supp. 37; Williams v. School District, N.D.Calif., 340 F.Supp. 438; Monell v. Dept. of Social Services, S.D.N.Y.; Danielson v. Bd. of Educ. of the City Univ. of N. Y., S.D. N.Y.; Bravo v. Bd. of Educ., N.D.Ill, 345 F.Supp. 155; Cerra v. East Stroudsburg Area School District, 3 Pa.Cmwlth. 665, 285 A.2d 206.

      . In addition to seeking redress of an alleged denial of equal protection, plaintiff’s complaint sought relief under the Equal Employment Opportunity Act, Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(a) :
      It shall be an unlawful employment practice for an employer—
      (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual witli respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ;
      At the time of the proceedings below, however, state agencies and educational institutions were specifically exempted from the Act. 42 U.S.C.A. § 2000e(b) ; 42 U.S.C.A. § 2000e-I. Subsequent to oral argument, these exemptions were repealed by the Equal Employment Opportunity Act of 1972, P.L. 92-261, signed by the President March 24, 1972 and effective immediately. On April 5, 1972, the Equal Employment Opportunity Commission adopted guidelines (a) declaring that exclusion of employees “from employment . . . because of pregnancy is in prima facie violation of Title VII” (29 C.F.R. § 1604.10(a), and (b) requiring employers to treat disabilities caused by pregnancy and childbirth like other temporary disabilities (29 C.F.R. § 1604.-10(b)).
      Although rules and practices of the defendant in effect when the defendant was exempt from the Act cannot be the basis for a violation of that Act, even though, as the amicus correctly points out, they are entitled to “great deference” in interpreting the Act, Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the majority’s holding is to the effect that constitutionally discrimination between pregnant women and other women and men, on account of pregnancy, is permissible. It would seem to follow that a contrary regulation would be in excess of the statutory grant of authority.

      . The record belies the benevolent purpose of the school officials ascribed to them by the majority: The principal of Mrs. Cohen’s school had previously requested that she be permitted to teach until the end of the first semester, January 21, 1971. From the standpoint of minimizing disruption of the education process of her students, this would seem to have been a sensible request. However, blind adherence to the regulation, or the board’s convenience in providing a replacement, or possibly the replacement’s convenience in beginning work, was permitted to prevail. The board itself never articulated the reason for rejecting the recommendation of one who could be expected to have more intimate and accurate knowledge of the needs of the pupils affected than it.


text:
    UNITED STATES of America, Appellee, v. Wayne Douglas KING, Defendant, Appellant.
    No. 72-1372.
    United States Court of Appeals, First Circuit.
    Heard Jan. 4, 1973.
    Decided Feb. 16, 1973.

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

This appeal is another chapter in the litigation we considered in United States v. King, 455 F.2d 345 (1st Cir. 1972) (King I), and more broadly governed by the principles we announced in United States v. Griglio, 467 F.2d 572 (1st Cir. 1972). It represents the increasing scope and depth of inquiry stimulated by the order of call defense. Hopefully, because of the recent change in the nation’s approach to acquiring its military manpower, it is one of the last of its genre.

When appellant was before us in King I, we remanded the case to the district court for a hearing before the court or a magistrate to receive documentary evidence concerning the bypass of sixty-one older registrants. There having been ten younger (not eleven as we erroneously said, 455 F.2d at 351) registrants who were ordered on January 16, 1969 for induction with appellant, the government had the burden of showing that at least fifty-one of the older registrants were properly bypassed. Hearing was held before a magistrate, who concluded that fifty-six were properly bypassed. The district court found that “50 or more” were properly bypassed. Although the government admits that it must meet its burden of proof as to 51 registrants, in light of the error just noted, the district court was correct in thinking that only 50 more need be established, since the defendant had conceded at the original trial that one of the 61 under challenge was not improperly bypassed. Thus, since the government has conceded five, it must still prove the propriety of the bypass of 50 of the 55 registrants still in dispute to sustain the conviction. Conversely, appellant must prove improper the bypass of six or more to overturn the conviction.

On this appeal, appellant challenges only 27 registrants. More than one ground is asserted for the allegedly improper bypass of some of these registrants. There are two major groups, accounting for 25 of the registrants: a group of 18 registrants who, because of their wives’ pregnancies, were put in an “awaiting Board action” category pending reclassification into Class III-A, and a group of 10 older registrants (including three members of the former group) whose physical examinations were delayed, to appellant’s alleged prejudice. Two other registrants are challenged on separate grounds.

We take as our standard for measuring error that which we enunciated in Griglio, supra, 467 F.2d at 577:

“. . . we will not deem a violation of a regulation as applied to third persons a deprivation of due process as to a registrant unless it is apparent that favoritism to another or discrimination against the registrant was intended, or unless the violation is so flagrant and serious that, whether intended or not, concern for fair and efficient administration justifies the sanction of voiding an induction adversely affected by the violation.”

Our review in this case indicates no purposeful discrimination, or, except as to two registrants, violation of a serious or flagrant nature.

The group of 18 fatherhood dispositions is variously attacked. All 18 were challenged because of the action of board employees, pursuant to a board directive, in placing the registrants then I- A in a category called “awaiting Board action” upon receipt of a letter indicating pregnancy. The evidence was not presented to the board until the birth occurred. There is here no assertion that board employees acted without board authority. We see no flagrant error or any prejudice in the failure of the board to review these files more promptly. The fact is that, as of January 16, 1969, all 18 qualified for a III-A deferment. As to 13 of the 18, appellant challenges the legal sufficiency of the medical diagnoses of pregnancy, for lack of reference to a medical test, as required by 32 C.F.R. § 1623.30(c)(3). As to one, the child had been born as of January 16, 1969 and as to the others later birth records verify their indisputable status as expectant fathers as of the same date. We are not persuaded by appellant’s reliance on technical defects in documents to prove the nonexistence of a condition which later events proved to have existed.

As to five of the 18, who held a II- S classification before and slightly after the effective date of the Military Selective Service Act of 1967, appellant argues that they were ineligible for a fatherhood deferment because they were “classified in Class II-S after [such] date.” 32 C.F.R. § 1622.30(a) (1967). While we agree with the appellant that the regulation could have been written more precisely — e. g., “classified into Class II-S”, “granted a II-S classification”, or “requested and received a II-S classification”, see Gregory v. Tarr, 436 F.2d 513, 517 (6th Cir. 1971), or, on the other hand, “holding a II-S classification”, we cannot deem unreasonable the Selective Service System’s interpretation of its own regulation, United States v. Groupp, 459 F.2d 178 (1st Cir. 1972), to mean only new classification action into II-S rather than the continuation of a pre-existing status. The regulation was designed to reflect Congressional concern that registrants could avoid the draft entirely by “pyramiding” deferments under the Act. Gregory, supra. We see the argument that this policy could be applied equally well to those receiving a II-S deferment in January, 1967 as to those receiving one in July, 1967. But it is equally reasonable to conclude that the President may have felt that those relying on the prior Congressional and administrative policy should not have their reasonable expectations disturbed.

Two of the 18 registrants filed a statement of preinduction order pregnancy after they were ordered to report. In both cases, the induction orders were “cancelled” apparently pursuant to a telephone conversation with state headquarters. Appellant challenges those cancellations as illegal. The relevant regulation, 32 C.F.R. § 1622.30(c)(3), provided at the time that:

“(3) No registrant shall be placed in Class III-A under paragraph (a) of this section because he has a child which is not yet born unless prior to the time the local board mails him an order to report for induction which is not subsequently cancelled there is filed with the local board the certificate of a licensed physician [Emphasis added.]

Although the regulations authorize the State Director to “postpone” an induction “for good cause, at any time after the issuance of an Order to Report for Induction”, 32 C.F.R. § 1632.2, the only provision for “cancellation” of an order to report is to be found in § 1625.14, which states that “The reopening of the classification of a registrant by the local board shall cancel any Order to Report for Induction.” In light of the careful use of these separate terms, we cannot equate them. See Davis v. United States, 410 F.2d 89 (8th Cir. 1969). Thus, the appellant correctly states that the orders in these two eases could have been validly cancelled only if the affected registrants’ classifications were properly reopened.

For that determination, we must fall back on the oft-litigated language of § 1625.2:

“the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.”

Here the Executive Secretary’s testimony clearly showed that the local board did not first make a specific finding to that effect; the staff placed the registrants in “awaiting Board action” status after receiving the letters and the matters were not placed • before the board until after appellant’s induction. Moreover, even if we assume that the board had made a general finding and that such a general finding satisfies this regulation, we still would find error. As all of the cases on point indicate, late assertion of a pre-existing pregnancy does not satisfy the requirements of § 1625.2 for a post-induction order change in status resulting from circumstances beyond one’s control. United States v. Watson, 442 F.2d 1273, 1281-1282 (8th Cir. 1971); United States v. Hulphers, 421 F.2d 1291, 1293 (9th Cir. 1969); Morgan v. Underwood, 406 F.2d 1253, 1255 (5th Cir. 1969). See also United States v. Walker, 424 F.2d 1069 (1st Cir. 1970) (late assertion of pre-existing conscientious objector claim does not satisfy § 1625.2). Thus the reopening and cancellation was improper, and the government has failed to show that these two registrants were properly bypassed.

Attacks on four more of the 18 fathers are insubstantial and merit no discussion.

The group of 10 registrants whose physical examinations were not scheduled so speedily as registrant’s consists of three subgroups. Three of these were in the group we have discussed, which awaited board action for a probable III-A classification. These, we have held, were properly bypassed.

As to a second subgroup of five registrants, older than appellant but not classified I-A until several months after him, appellant presents the sophisticated argument that they should have been called for physicals earlier than they were and, if they had been called with anything approaching the speed with which appellant was processed, and had been found acceptable, as two of them ultimately were (the other three never being subjected to examination), they would have been called for induction before him. His argument is premised on § 1628.11(b) which provides:

“The local board shall, so far as is practicable, select and order to report for armed forces physical examination . registrants [who have been classified in Class I-A] who are non-volunteers in the order of their liability for service.” >

He urges that the order of call is mandatory or that at least in the absence of a showing of impracticability in each particular case, the failure to follow this order of call for physicals is a serious and flagrant violation of the regulation which leads to an improper and prejudicial bypass of older registrants. The government on the other hand contends first that, as we said in King I, supra, 455 F.2d at 353-354, it “need only introduce such documents as are required to establish that the registrant should not have been ordered to undergo examination prior to King”, but that in any case, if it need go further, its burden is met if it shows the order of call for physicals “basically followed the regulations”.

We refuse to follow either suggested extreme. At the time of our comments in King, we were thinking of the more typical claim — that an older registrant classified I-A before the defendant was not ordered for a physical before him— and not of this more sophisticated claim as to those classified I-A after the defendant. Now that we are aware, we hold that a defendant may invoke § 1628.11(b) and its order-of-call provisions. As to appellant’s first contention, it is clear that the order is not mandatory ; the words “as far as is practicable” are not surplusage. Addressing his second contention, we also do not think that the requirement of impracticability is as strict as he suggests. It is one thing to require, as courts have repeatedly done, strict adherence to the statutorily-mandated order of call for inductions. We have canvassed in Griglio the reasons for that approach. But it does not follow that we must also insist on the same punctilio as to physicals, or other required steps, which, though necessary to the ultimate issuance of the orders to report for induction are not determinative of their issuance or ordering. While we would not tolerate purposefully discriminatory ordering of. physicals, or substantial though unintentional skewing of the order, we will not require particularistic explanations of impracticability when only five out of 421 orders for physicals in an eight-month period are shown to have been out of order.

The third subgroup of registrants includes two who had their physicals transferred to another board. The reports on those physicals did not arrive at the appellant’s board for some months. The appellant points to no irregularity, but only to the length of time involved.

Finally, the cases of two additional registrants, alleged to have been improperly bypassed for other reasons, do not merit prolonging this review. Since we find that only two registrants were improperly bypassed, the government has satisfied its burden of proof and the conviction must be sustained.

Affirmed.

      . Appellant raised, in his post-hearing memorandum, the issue that there has been an overcall, 47 registrants having been called in his month to fill a request for 43. Were this issue before us and decided for appellant, the government would have to prove that 55 of the 61 challenged registrants, or 54 of the remaining 55, were properly bypassed. Defendant, however, was made aware of this discrepancy at the original trial, when the government introduced as an exhibit the Delivery List for February, 1969, which stated that the “number called for” was 43 but the “number listed from this board” was 47. His failure to raise this issue before the close of even the second hearing deprived the government of an opportunity to introduce evidence to justify the call of 47. We therefore do not consider this challenge.

      . Here, as in the overcall argument, appellant added a ground after it could be exposed to contrary evidence — the argument that, even if their deferment was proper, putting these men into a I-A “awaiting Board action” category rather than into the III-A category had the effect of inflating the quota expected from appellant’s board. The government denies appellant’s assertion. We do not entertain the argument.


author: WISDOM, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUNNYLAND REFINING COMPANY, a Wholly Owned Subsidiary of Kane-Miller Corporation, Respondent.
    No. 72-2919
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 1, 1973.

      Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Walter C. Phillips, Director, Region 10, N. L. R. B., Atlanta, Ga., for petitioner.
    Joseph P. Carey, Industrial Relations, Kane-Miller Corp., New York City, for respondent.
    Before WISDOM, GODBOLD and RONEY, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   WISDOM, Circuit Judge:

The NLRB seeks enforcement of its order that the respondent, Sunnyland Refining Co., cease and desist from violating sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and by refusing to bargain with the certified representative of its employees. The company’s sole contention is that the board incorrectly determined the appropriate unit. The case turns on the correctness of the Board’s excluding certain dual function employees from the unit. See Berea Publishing Co., 1963, 140 N.L.R.B. 516. We grant enforcement.

I.

Sunnyland Refining Co., a wholly owned subsidiary of Kane-Miller Corp., maintains a plant at Birmingham, Alabama, where it is engaged in the manufacture, sale, and distribution of oleomargarine and related products. On October 20, 1971, the Teamster Local Union 612 filed a representation petition with the board requesting certification as the bargaining representative of a unit consisting of the company’s truckdrivers, mechanics, and tiremen employed at the Birmingham plant. The proposed unit included 34 shipper-drivers, a truck mechanic, his helper, and a tireman, all of whom work in the plant’s transportation department. The record indicates that the shipper-drivers spend an average of four days and nights per week on the road and make almost exclusively interstate deliveries. All shipper-drivers are ICC qualified and carry ICC log books. When they are not driving, most perform plant work incidental to their driving duties, such as loading and unloading trucks and labeling margarine. In general, however, the shipper-drivers have almost no time available for plant work. All are paid on a weekly salary basis.

The company contended that the unit should include 20 plant employees who both drive trucks and perform production and maintenance work unrelated to their driving duties. These “dual function” plant employees deliver about 15% of the company’s product, compared with the 60% delivered by the shipper-drivers and the 15% picked up by customers. Most of their deliveries are intrastate, and each dual function plant employee spends almost one day a week driving. The remaining time is spent in production and maintenance work. All dual function plant employees work a 40 hour week from 7:00 a. m. to 4:00 p. m. Fourteen of the dual function plant employees who drive are paid on an hourly basis; six are on salary. Only one of the dual function employees is on the same pay scale as the shipper-drivers.

On December 14, 1971, the board’s acting regional director, after a hearing, approved the union’s proposed unit. The director found that the shipper-drivers operate primarily interstate, while the dual function plant employees operate almost exclusively intrastate. Furthermore, the shipper-drivers spend almost all of their time away from the plant, while the dual function plant employees work primarily in the plant. The shipper-drivers and the dual function employees have separate supervision, are paid differently, and use different lounge facilities. The director concluded that the unit should consist of: “All shipper drivers at the Company’s Birmingham, Alabama plant including the mechanic, the mechanic’s helper and the tireman, but excluding all other employees. .” The board later upheld the director’s decision and ordered an election among the members of the unit. On January 10, 1972, an election was held in which a majority of the employees voted in favor of the union, and on January 18, the board certified the union as the collective bargaining agent for the unit. The company refused to bargain with the union.

II.

The company contends that the board departed from its prior decisions by refusing to include the 20 dual function plant employees in the unit because they spend less than 50% of their time performing work similar to the shipper-drivers’. The company points to the acting regional director’s statement in issuing his decision: “The fact that the twenty dual-function employees do some driving is insufficient to rebut the presumptive appropriateness of the unit sought by the Petitioner where, as here, they devote less than 50% of their time performing driving duties.” The company argues that this holding is inconsistent with Berea Publishing Co., 1963, 140 N.L.R.B. 516, 519, in which the board stated: “[W]e now believe that a dual function employee devoting less than fifty-one percent of his time to unit work may have sufficient interest to be included in the unit.”

We perceive no inconsistency between Berea and the present- case. The company reads Berea as requiring inclusion of dual function employees who devote less than 50% of their time to unit work. The board, however, held only that dual function employees cannot be excluded solely on the ground that they do not work with the unit more than 50% of the time. It did not hold that such employees must always be included in the unit. In each case, the question is whether the employees have a sufficient interest in the unit’s conditions of employment to be included in the unit. Berea Publishing Co., swpra.

In making this determination, the board must consider a number of factors, including (1) differences in methods of compensation, (2) different hours of work, (3) different employment benefits, (4) separate supervision, (5) degree of dissimilar qualifications, training and skills, (6) differences in job functions, (7) amount of working time spent away from the plant, (8) infrequency or lack of contact with other employees, (9) lack of integration with the work functions of other employees or interchange with them, and (10) the history of bargaining. Kalamazoo Paper Box Corp., 1962, 136 N.L.R.B. 134; E. H. Koester Bakery Co., 1962, 136 N.L.R.B. 1006; Ore-Ida Foods, Inc., 1964, 146 N.L.R.B. 464. In the present case, the board had to consider how similar the driving done by the plant employees is to the driving done by the shipper-drivers and how much driving the plant employees do.

There was ample indication that, weighing all pertinent factors, the dual function plant employees should have been excluded from the proposed unit. The intrastate driving duties occasionally performed by these employees was the only significant factor favoring their inclusion. In determining whether this alone was sufficient to overcome the other substantial differences and establish a true community of interest with the shipper-drivers, the regional director properly noted that the driving duties of the dual function plant employees were minimal and constituted only a small percentage of their working week. In these circumstances, inclusion in the unit was not warranted. See Giordano Lumber Co., Inc., 1961, 133 N.L.R.B. 205; Ballentine Packing Co., 1961, 132 N.L.R.B. 923; St. John’s Associates, 166 N.L.R.B. 287 enforced, 2 Cir. 1968, 392 F.2d 182.

Berea may also be distinguished on another basis. In Berea, the question confronting the board was whether particular employees were properly excluded from the unit. The board’s decision re-established the policy that dual function and part-time employees should be treated alike in terms of voting eligibility. In the present case, however, we are confronted with the question whether two separate bargaining units are appropriate. In such circumstances, the proper scope of inquiry is the aggregate similarities or dissimilarities between the conditions of employment of the two groups of employees. The percentage of working time that the dual function plant employees devote to driving duties is relevant to that question.

We conclude that the board’s order is supported by substantial evidence and that the dual function plant employees were properly excluded from the unit. The order of the board must be enforced.

Enforced.


author: PER CURIAM: GODBOLD, Circuit Judge

text:
    LERER REALTY CORPORATION and Apex Supply Company, Plaintiffs-Appellees, v. MFB MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    No. 72-1254.
    United States Court of Appeals, Fifth Circuit.
    Feb. 14, 1973.
    Rehearing Denied April 10, 1973.
    Rehearing and Rehearing En Banc Denied April 20, 1973.

      Goldbold, Circuit Judge concurred in part and dissented in part and filed opinion.
    R. B. Cousins, Larry L. Gollaher, Dallas, Tex., James L. Fetterly, Robert M. Wattson, Minneapolis, Minn., for defendant-appellant.
    Bill C. Hunter, Timothy J. Vineyard, Dallas, Tex., for plaintiffs-appellees.
    Before GODBOLD, DYER and CLARK, Circuit Judges.
   PER CURIAM:

Lerer Realty Corporation and Apex Supply Company (Lerer) recovered a jury verdict in their suit on a windstorm insurance policy issued by MFB Mutual Insurance Company (MFB). On this appeal MFB contends that Lerer’s expert witnesses were not qualified to express the opinions which went to the jury; Lerer didn’t meet its burden of proving its building was damaged exclusively by wind not contributed to by rain; and, alternatively, that actual cash value, not replacement cost, was the policy measure of recovery. We affirm on witness qualification and the sufficiency of the evidence, but modify the measure and amount of damages awarded.

Lerer owned a warehouse building which was discovered in a collapsed condition following a nighttime wind and rainstorm. There were no witnesses. No adjacent buildings showed wind damage. Clogged drainage outlets in a parapet around the warehouse’s relatively flat roof could have caused an accumulation of rainwater. Lerer produced a meteorologist who testified that the storm system in the vicinity on this evening was capable of producing a tornado vortex and that his examination of the site disclosed evidence that a vortex had touched down at Lerer’s building. Lerer also sponsored one witness who was a graduate structural engineer (now engaged in business as a building contractor) and another witness who was a graduate civil engineer. They testified that neither rain nor any accumulation of rooftop water caused or contributed to the collapse. The structural engineer-building contractor further opined that a strong negative pressure force on the exterior of the building — a tornado —had caused the damage.

MFB produced the testimony of a meteorologist to the effect that no tornadic vortex had occurred on the night in question and that there was no evidence of vortex contact at the Lerer building site. MFB also obtained the testimony of a professional consulting engineer who expressed the opinion that rainwater was probably the proximate cause but certainly a contributing cause of the damage.

The determination of the qualifications of an expert witness is committed to the sound discretion of the trial judge and that discretion will not be disturbed in the absence of a clear showing of abuse. Eastburn v. Ford Motor Company, 471 F.2d 21 (5th Cir. 1972). No precedential purpose would be served by detailing the minutiae of the bases for each witness’s observations. It is sufficient to say that an examination of the record indicates no abuse of discretion in the admission of all of these expert opinions. Clearly the resulting clash of these informed beliefs created issues for jury resolution under Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969). It is not necessary to reach or rule on whether Lerer had the burden of proving not only that a covered loss (wind damage) occurred, but also that an exception to coverage (rain or rainwater) had not contributed.

The policy liability was limited to actual cash value, not to exceed repair or replacement cost. By endorsement MFB extended the indemnification agreement to cover the cost, as of the date of loss, of replacement in a new condition with materials of like size, kind and quality, subject to the following conditions: (1) The repair, rebuilding or replacement had to be made within a reasonable time; (2) Total liability was not to exceed (a) the cost of repair, or (b) the cost to rebuild, or (c) the actual expenditure incurred in rebuilding, repairing or replacing. A reading of this “Repair or Replace” endorsement in context with the primary liability proviso of the policy discloses a clear and unambiguous undertaking to pay the insured the actual cash value of the damaged property at the time of loss, less depreciation, unless the insured actually repaired, rebuilt or replaced within a reasonable time. If restoration is made, then, and only then, the liability of MFB would be calculated under the endorsement.

Pursuant to the special verdict procedure of Rule 49, Federal Rules of Civil Procedure, the jury found that: Lerer’s delay in beginning repairs, replacement or rebuilding (two and one-half years as of the time of trial) was not unreasonable under the terms of the policy; 119,400 dollars was the replacement cost of the building; 73,000 dollars was the value of the building prior to damage; and 12,000 dollars was the value of the building after damage. Acting upon an interpretation of the policy language which would permit recovery of restoration costs without regard to actually restoring the structure, the trial court entered judgment for Lerer for 119,400 dollars. Judgment should have been entered for the actual cash value of the property destroyed. Thanks to the enlightening specificity of the special verdicts, we can readily calculate the actual cash value of the property destroyed — 73,000 dollars minus 12,000 dollars — á net of 61,000 dollars. Accordingly, we direct the district court to modify the final judgment to provide that Lerer (and Apex) recover from MFB the sum of 61,000 dollars with interest calculated as initially provided, and trial court costs. As modified, the judgment is affirmed.

The costs of this appeal shall be divided between the appellant and the appel-lees.

Affirmed as modified.

GODBOLD, Circuit Judge

(concurring in part and dissenting in part):

I concur in the majority opinion to the extent that it upholds the introduction of expert testimony and submission of the case to the jury, but I dissent from that portion modifying the damages.

The insurer, MFB, construes its policy provisions to mean that repair or replacement is a condition precedent to indemnification under the endorsement. An available and opposite construction is that the insurer must pay replacement costs unless the insured fails to replace within a reasonable time. Under this latter construction, MFB’s obligation under the endorsement continues until passage of a reasonable time without repair or replacement. Implicitly rejecting MFB’s construction and embracing the opposing view, the trial court submitted the following special interrogatory to the jury:

Do you find from a preponderance of the evidence that it has been a reasonable time for the plaintiffs not to have repaired, replaced, or rebuilt the building in question since its damage on May 6, 1969 ?
ANSWER “It has been a reasonable time for plaintiffs not to have repaired” or “It has not been a reasonable time for plaintiffs not to have repaired”
ANSWER It has been a reasonable time for plaintiffs not to have repaired.

Since the jury found that a reasonable time had not expired, the trial court awarded replacement costs to Lerer Realty. The majority reverse the implicit adoption by the trial judge of the construction favoring the insured and adopt, as a matter of law, the construction favoring MFB.

Boiled to its essence the issue is whether actual repair or replacement is a condition precedent or a condition subsequent to MFB's obligation under the endorsement. If actual repair or replacement within a reasonable time is a condition precedent, then the insurer’s obligation under the endorsement has never arisen. If, however, its obligation vests upon loss only to be divested upon passage of a reasonable time without repair or replacement, the insurer must lose on the strength of the jury’s finding that a reasonable time had not expired. The issue is to be viewed with the realization that the sole purpose of the endorsement is to extend to the insured, under certain conditions, coverage for replacement cost rather than actual cash value of the property lost. For this more extensive coverage the insured pays an additional premium.

With the issue so framed, I set out the crucial portions of the endorsement, which is stated in full in a footnote to the majority opinion:

[Tjhis Policy is hereby extended to indemnify the Insured for the difference between the actual cash value of such property and the cost ... of replacement in a new condition, all subject to the following conditions:
1. If property damaged or destroyed ... is not repaired, rebuilt, or replaced . . . within a reasonable time after loss or damage, this Company shall not be liable for more than the actual cash value of the property destroyed.

Under the wording of this endorsement, failure to repair or replace within a reasonable time is a condition subsequent. The endorsement has language indicating that the obligation is vested (“This Policy is hereby extended”) followed by language indicating that the obligation may become divested upon the occurrence of a subsequent condition (“all subject to the following conditions”). The endorsement consists, then, of language that “giveth” followed by language that “taketh away” upon expiration of a period of time. This type construction, particularly use of provisos such as “but if,” “provided however,” or “subject to the condition that,” traditionally has connoted conditions subsequent. See generally Restatement, Property § 157 (1936). Therefore, by its endorsement the insurer created a defeasible obligation that ceases only upon the expiration of a reasonable time. While research has disclosed no Texas insurance cases directly concerned with this issue, analogous language in deeds, trusts, and other instruments has been construed by Texas courts to create a condition subsequent. See, e. g., City of Dallas v. Etheridge, 152 Tex. 9, 253 S.W.2d 640, 641-642 (1952); Stevens v. Galveston, H. & S. A. Ry., 212 S.W. 639, 643-645 (Tex. Comm’n App., 1919, jdgmt adopted).

The obligation under the endorsement was subject to a second condition:

2. The total liability of the Company under this Policy for loss to property included under this endorsement shall not exceed the smallest of the following:
a. the cost to repair, or
b. the cost to rebuild or replace, all as of the date of loss, on the same site, with new materials of like size, kind and quality, or
c. the actual expenditure incurred in rebuilding, repairing or replacing on the same or another site.

As I read this provision, MFB’s obligation, construed at a time when actual replacement or repair has not been made but before expiration of a reasonable time, is the smallest of “a.” or “b.” In this case that amount is the amount awarded by the court below.

I think the Texas trial judge’s implicit acceptance of the insured’s construction and his like rejection of MFB’s construction was correct. But if I am in error, what is crystal clear is that there are two possible constructions. Ambiguous contracts of insurance are construed in Texas most strongly against the insurer. See 32 Tex.Jur.2d, Insurance § 60 (2d ed. 1962), and numerous cases cited therein. This requires affirmance.

Not only is the condition subsequent construction required, either as the single clear construction or as the necessary choice of an ambiguous contract, but also it comports with simple fairness. MFB’s construction permits the insurer, in some circumstances, by its own act of denying coverage, to decrease the amount of its potential liability under an endorsement the purpose of which is to increase that potential liability. If the insured is not financially strong enough to effect replacement through his own resources, he does not have the benefit of the increased coverage for which he paid. One need not be clairvoyant to predict that the Texas courts will not adopt a construction giving to an insurer any such leverage over the insured and bonus for denying coverage.

      . The specific policy language pertinent here was as follows :
      Subject to Article 6.13 of the Texas Insurance Code — -1951, V.A.T.S., liability hereunder shall not exceed the actual cash value of the property at the time of loss, ascertained with proper deduction for depreciation ; nor shall it exceed the amount it would cost to repair or replace the property with material of like kind and quality within a reasonable time after the loss, without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or X'epair, and without compensation for loss resulting from interruption of business or manufacture, nor shall it exceed the interest of the insured, or the specific amounts shown under “Amount of Insurance.”
      In pertinent part, the “Repair or Replace” endorsement reads:
      It is understood and agreed, subject to all the terms, conditions and stipulations of the Policy to which this endorsement is attached, not in conflict herewith, that in case of loss or damage to:
      All property covered under this Policy
      this Policy is hereby extended to indemnify the Insured for the difference between the actual cash value (ascertained with proper deduction for depreciation) of such property at the time of loss or damage and the cost, as of the date of loss, of replacement in a new ¡condition with materials of like size, {kind and quality, all subject to the following conditions:
      1. If property damaged or destroyed is useless to the insux'ed or is not repaired, rebuilt or replaced on the same or another site within a reasonable time after the loss or damage, this Company shall not be liable for more than the actual cash value (ascertained with proper deduction for depreciation) of the property destroyed.
      2. The total liability of this Company under this Policy for loss to property included under this endorsement shall not exceed the smallest of the following:
      a. the cost to repair, or
      ■ b. the cost to rebuild or replace, all as of the date of loss, on the same site, with new materials of like size, kind and quality, or
      c. the actual expenditure incurred in rebuilding, repairing or replacing on the same or another site.

      . Compare the endorsement in Bourazak v. North River Ins. Co., 379 F.2d 530 (7th Cir. 1967), which was described by the court as follows :
      “The Extended Coverage clause provided that if the building were completely rebuilt the insurer would be liable for the repair or replacement cost, not exceeding $22,500; that the insurer would not be liable for loss ‘unless and until actual repair or replacement is completed,’ and that any claim for such additional liability must be made ‘within 120 days after loss.’ ”

        Id. at 531.