author: ROSENN, Circuit Judge.

text:
    UNITED STATES of America, ex rel. Gary G. RUSH #42029, Appellant, v. Edward G. ZIEGELE, Superintendent of Leesburg (NJ) State Prison.
    No. 72-1513.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 8, 1973.
    Decided March 5, 1973.

      Ralph J. Kmiec, Kmiec & Palumbo, Camden, N. J., for appellant.
    George F. Kugler, Jr., Atty. Gen. of New Jersey, Fred H. Kumpf, Deputy Atty. Gen., Department of Law & Public Safety, East Orange, N. J., for appellee.
    Before McLAUGHLIN, VAN DU-SEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

State prisoner Gary G. Rush appeals from the order of the District Court for the District of New Jersey denying his petition for a writ of habeas corpus. Rush claims that he is-being held in custody unconstitutionally because (1) an involuntary confession was admitted into evidence during his trial, and (2) a number of trial court errors, when taken as a whole, amounted to deprivation of his right to a fair trial. We find no merit in either of appellant’s claims and therefore affirm the order of the district court.

Rush was tried and convicted in 1964 for the January 18, 1962, felony murder of the co-owner of the Farm Tavern, Camden County, New Jersey. A confession that he was involved in the murder, which Rush had made to detectives on December 26, 1962, was entered into evidence. Its admissibility had been approved by the trial court judge after a suppression hearing was held outside the presence of the jury.

Evidence presented at the suppression hearing established that Rush was 17 years old at the time he was questioned while confined as a juvenile offender at the Annandale Reformatory. He had a below average IQ, had been treated for mental illness at the Trenton State Mental Hospital from July 3 to September 17, 1962, and may have been schizophrenic at age 13. The testifying doctors also stated that Rush had been discharged from the state hospital because he had undergone a remission. The detectives who questioned Rush testified that the interrogation from 1:00 P.M. to 4:45 P.M. on December 26 had been conducted without threats, beatings or use of profanity. They said Rush had been allowed to attend supper and had voluntarily returned to confess after the meal.

A quite different version of the interrogation — eight hours of constant questioning accompanied by beatings, threats and profanities — was given by Rush at trial, but he refused to testify at the suppression hearing:

MR. KMIEC [Attorney for Rush]: If your Honor pleases at this time, I think the defendant Gary Rush wishes to make a statement for the record.
GARY RUSH: I’d rather not take the stand. At this point I would rather tell my story to the jury.
THE COURT: All right.
MR. KMIEC: I have advised Mr. Rush it’s his decision to make, and that was his response to me, and I wish to make it clear for the purposes of the record.
THE COURT: All right, I would like to ask the defendant, is this a decision of your own free will ?
GARY RUSH: Yes sir it is.
THE COURT: All right.

Based on the evidence presented at the hearing, the trial judge found that Rush was mentally sane at the time of his confession and that “he did know the nature and quality of his acts.” He concluded:

I am satisfied that the testimony of the State Police officers is quite accurate, there appears to be nothing from their testimony which I have here which would lead me to any different conclusion than that these confessions were voluntary and [it] should be noted at this time that the defendant on his own motion has declined to take the stand to deny any of the testimony or to shed any light on the situation, which might have otherwise been helpful to the court.

On direct appeal, the trial court’s determination of voluntariness was affirmed. The New Jersey Supreme Court stated that the admissibility of the confession could not be questioned because Rush advanced no sufficient reason to explain his refusal to testify at the suppression hearing. 212 A.2d at 382. On petition for a writ of habeas corpus, the district court also denied Rush’s claim that the confession was made involuntarily. It held no evidentiary hearing, evidently believing that a full and fair hearing had been given by the state court. 335 F.Supp. at 436-437.

On this appeal of the denial of a writ of habeas corpus, appellant Rush bases his claim that the confession was given involuntarily on his statement of the facts surrounding the interrogation, as he testified to them at trial. He claims the interrogation was coercive in light of the protracted time it took, Johnson v. Pennsylvania, 340 U.S. 881, 71 S.Ct. 191, 95 L.Ed. 640 (1950), and the low mental capacity of defendant, Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957). The State, relying on the description of the interrogation given by the detectives, argues that Rush’s will was not “overborne,” and thus the confession was voluntary. United States ex rel. Russo v. New Jersey, 438 F.2d 1343 (3d Cir. 1971); United States ex rel. Bishop v. Rundle, 309 F.Supp. 312 (E.D.Pa.1970).

The trial judge must determine whether a confession was made voluntarily before allowing it to be submitted to a jury. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Rush’s trial was completed before Jackson was written, but the Court’s holding is to be given retroactive effect. See Johnson v. New Jersey, 384 U.S. 719, 727-729, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Linkletter v. Walker, 381 U.S. 618, 639 n. 20, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Factual findings in state court proceedings are presumed correct unless the fact-finding procedures were not adequate to afford a full and fair hearing, or unless material facts were not adequately developed. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), now codified in 28 U.S.C. § 2254(d)(2) and (3). Determination of whether a confession was made voluntarily, however, is a mixed question of fact and law. Federal courts exercising habeas corpus jurisdiction, therefore, cannot abdicate their responsibility to assess whether state court judges have correctly applied federal constitutional standards. Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949); United States ex rel. Thomas v. New Jersey, 472 F.2d 735, 738 (3d Cir. 1973). Two questions thus are presented by appellant’s claim that his confession should not have been submitted to the jury: (1) Was an adequate fact-finding hearing conducted by the state trial court? and (2) Was the trial court correct in determining Rush’s confession was given voluntarily?

We find that the fact-finding procedure employed in the state court was adequate to give appellant a full and fair hearing. Rush was given an opportunity to rebut the statements of detectives as to the details of the interrogation. Had Rush testified at the suppression hearing, as he did subsequently at trial, to eight hours of beatings and threats, the trial judge would have had to weigh his credibility against that of the detectives. In the absence of Rush’s testimony, however, the judge did not have such an opportunity. Rush’s refusal to testify at the hearing was a knowing and voluntary waiver of his right to present evidence to demonstrate the involuntariness of the confession. Inexcusable neglect of a defendant to present evidence crucial to his constitutional claims precludes defendant from having the right to a second opportunity, such as a habeas corpus hearing, to set forth evidence supporting his allegations. Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); compare Price v. Johnston, 334 U.S. 266, 289-290, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924).

The trial judge here explicitly asked Rush whether his refusal to testify was voluntary. Rush said it was. Rush’s lawyer informed the court that he had discussed this decision with his client. Rush has not alleged in his petition for habeas relief that his decision not to testify was involuntary, or that it was based on a misunderstanding of the possible consequences of refusal. In light of such a waiver, Rush is foreclosed from arguing at this point that he has a right to a second hearing on the voluntariness of his confession. Respect for the integrity of the state fact-finding process demands that defendants not be allowed to intentionally withhold information from it in order to assure a second federal hearing on the same issue. The state suppression hearing was, therefore, as full and fair a fact-finding process as appellant would allow it to be.

Having found that the state suppression hearing was adequate, it is still necessary to determine whether the trial court applied the correct federal standards in determining the confession was voluntary. The evidence presented at the hearing, although not demonstrating that Rush was insane at the time of the confession, did portray him as a man with a history of mental illness and low mental capacities. Such proof is important in determining what amount of coercion will render a confession involuntary. Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). The evidence before the trial judge at the suppression hearing, however, did not indicate the presence of coercion. Questioning had continued for less than four hours when detectives told Rush the interrogation was completed and allowed him to go to dinner; he voluntarily returned after dinner to make his confession. In the absence of any showing of coercion, we cannot find that Rush’s mind was overborne, despite his history of intermittent mental illness. The trial court was correct in its determination that Rush’s confession was voluntary and could be submitted to the jury.

Although a different conclusion as to whether the confession was made voluntarily might be drawn if all, or even parts, of Rush’s at-trial story of the interrogation were accepted, those facts were not before the trial judge at the crucial point in the judicial process when the determination as to voluntariness was made. A defendant may waive his right to exclude from the jury evidence, even evidence obtained unconstitutionally, as long as his waiver is made knowingly and voluntarily. After such a waiver, a defendant cannot ask that the issue of admissibility be retried de novo.

Moreover, in compliance with his request at the suppression hearing, petitioner had an opportunity at trial to state his version of the allegedly coerced confession to the jury. He sought by his testimony before the jury to show them that he had been subjected to physical and psychological coercion by the police during their questioning of him at An-nandale. The trial judge instructed the jury to “disregard . . . completely and accord no evidential weight whatsoever” to the confession unless they determined it was given voluntarily.

Appellant’s other contentions, which he claims taken together amount to a deprivation of the right to a fair trial, include: (1) precautionary instrue-tions given the jury, telling it to consider admissions made by Rush to psychiatrist Spradley only in connection with the issue of Rush’s mental competency, were inadequate; (2) two pictures of the murder victim should not have been allowed into evidence; (3) prosecutorial closing remarks were prejudicial; and (4) Rush should have been granted a severance from his co-defendants. Contentions (1) and (4) are fully discussed in the district court opinion, 335 F.Supp. at 437-439, and we find them without merit. Neither the admission of the pictures nor the prosecutor’s comments rendered appellant’s trial unfair nor denied him due process.

The order of the district court will be affirmed.

      . The district court opinion is reported at 335 F.Supp. 434 (D.N.J.1971).

      . The facts of the crime are more fully set out in the affirmance of Bush’s conviction on direct appeal. State v. Ordog, 45 N.J. 347, 212 A.2d 370 (1965).

      . Long periods of interrogation have been deemed to constitute coercion which will render a confession involuntary, Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961); Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949); Johnson v. Pennsylvania, 340 U.S. 881, 71 S.Ct. 191, 95 L.Ed. 640 (1950) ; but none of these eases involved a period as short as four hours.

      . Appellant also argues that his confession was involuntary because he was given no Miranda warning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), however, was not given retroactive effect. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

      . The issue of defendant’s admissions to a psychiatrist here differs from the unconstitutional use of similar admissions in United States ex rel. Smith v. Yeager, 451 F.2d 164 (3d Cir. 1971), in two important respects: (1) no claim is made in this appeal that there was any error in the trial judge’s finding that Rush’s admissions to the psychiatrist were made voluntarily ; and (2) the jury here was explicitly instructed to consider the admissions only with regard to the issue of defendant’s sanity, not as in Smith to consider the admissions as proof of defendant’s commission of the charged offense.


source: Caselaw Access Project

author: BIGGS, Circuit Judge. KALODNER, Circuit Judge

license: Public Domain

text:
    Margaret Coll BOLENDER, Administratrix of the Estate of James P. Coll, Deceased, Appellant, v. FARM BUREAU MUTUAL INSURANCE COMPANY and Nationwide Insurance Company.
    No. 71-2000.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 30, 1972.
    Decided March 7, 1973.

      Kalodner, Circuit Judge, filed dissenting opinion.
    Norman Paul Harvey, Harvey, Pennington, Herting & Renneisen, Timothy B. Barnard, Philadelphia, Pa., for appellant.
    John J. Walsh, Jr., LaBrum & Doak, Edward R. Paul, Philadelphia, Pa., for appellee.
    Before BIGGS, KALODNER and ADAMS, Circuit Judges.
   OPINION OF THE COURT

BIGGS, Circuit Judge.

This appeal is concerned with the proper application of the Pennsylvania statute of limitations, 12 P.S. § 31 (1953), to a proceeding by Bolender, ad-ministratrix of the estate of Coll, to recover as a third party beneficiary pursuant to a contract of insurance issued by the appellees to Laura L. Longs-treth. Jurisdiction is founded upon diversity of citizenship, 28 U.S.C. § 1332 (1970). The law of Pennsylvania applies.

A judgment in favor of Bolender in the amount of $22,000 was entered on May 9, 1956 in wrongful death and survival actions against William Longs-treth, the son of Laura Longstreth who had been given permission by the latter to operate her automobile, and Bishop, who was operating the automobile at the request of William Longstreth when said car struck and killed Coll. Farm Bureau Mutual Insurance Company had defended William Longstreth in the lawsuit under a reservation of rights agreement and had refused to defend Bishop. The judgment remaining unsatisfied, Bolen-der filed the present suit against the insurer on December 27, 1967, claiming that either or both William Longstreth and Bishop were covered under the insurance policy issued to Laura Longs-treth and that the insurer was estopped from asserting the policy limitation of $10,000 due to its lack of good faith in defending the prior suit and negotiating a settlement.

Bolender is suing to enforce the following promise of the insurer contained in the insurance contract: “Coverage F —Bodily Injury Liability: To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.” Bolen-der’s right to sue the insurer directly as a third party beneficiary of such promise to pay stems from the following provision: “No action shall lie against the Company, unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this policy, nor until the amount of the Insured’s obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.

“Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy it

The appellees do not contest Bolender’s right under the above policy provision to bring an action against the insurer as a third party beneficiary of the insurance contract, and Pennsylvania law is clear that such a suit may be maintained. But in light of the fact that this action was instituted 11% years after the judgment against the insured was rendered, the court below granted appellees’ motion to dismiss on the ground that this action was barred after six years by the Pennsylvania statute of limitations applicable to contract actions, 12 P.S. § 31. We agree.

It is of course fundamental that a statute of limitations does not begin to run until a cause of action has accrued. But determining the time when a cause of action has accrued is often the subject of dispute, and this case is no exception. Pennsylvania law is replete with simplistic statements concerning the times causes of action accrue. For example, it is said that “the time specified in a statute of limitations does not begin to run until there is an existing right to sue forthwith.” New York and Pennsylvania Co. v. New York Central R. R. Co., 300 Pa. 242, 245-246, 150 A. 480, 481 (1930). In Philadelphia, Baltimore, and Washington R. R. v. Quaker City Flour Mills Co., 282 Pa. 362, 367, 127 A. 845, 847 (1925), the Pennsylvania Supreme Court said, “A cause of action accrues at the moment the party has a legal right to sue.” And in Bell v. Brady, 346 Pa. 666, 669, 31 A.2d 547, 549 (1943), the Court stated that “a cause of action accrues . . . when one has the right to institute a suit.” If the contract is conditional, the statute runs from the time the condition is performed or exists. Tonkin v. Baum, 114 Pa. 414, 7 A. 185 (1886).

Application of the above rules requires affirmance of the dismissal of this action. Bolender’s right to sue to enforce the insurer’s promise to pay was complete at the time the prior judgment was rendered. As is stated in the policy, “[a]ny person or organization or the legal representative thereof who has secured such judgment . . . shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy.” (Emphasis added.) Securing judgment was a condition precedent to Bolender’s right to sue the insurer directly, and upon satisfying this term, she clearly had “an existing right to sue forthwith,” which under Pennsylvania law, starts the running of the statute of limitations.

In an effort to escape the obvious, Bolender contends that since the insurance policy contains no time limitation on an injured party’s right to claim payment, that right exists as long as the judgment against the insured remains valid and enforceable. The lack of such an express limitation in the policy is irrelevant, however, for the law, 12 P.S. § 31, imposes one. Bolender’s position that a refusal of payment by the insurer is necessary to start the statute running is untenable. Refusal by the insurer is not a prerequisite to the right to institute suit to enforce the insurer’s promise to pay, a right which Bolender ignored for 11V2 years, and the promise to pay was not part of a continuing contract.

We would end this opinion here were it not for our Brother Kalodner’s dissent. We believe that the fundamental misconception of the dissent is its belief that the policy grants the right to sue on a judgment. The right to sue is on the contract, and the judgment is only relevant insofar as it is a condition precedent to the creation of the third-party beneficiary right in the plaintiff.

The judgment will be affirmed.

KALODNER, Circuit Judge

(dissenting).

The insurance policy here involved provides that an action may be instituted against the insurer for recovery of a judgment against its insured to the extent of the policy’s coverage, without specification as to the time in which the action must be brought.

The majority holds that the suit here is upon the contract and not upon the judgment, and that accordingly, it is barred by the Pennsylvania Statute of Limitations, 12 P.S. § 31, which fixes a six-year limit for action on a contract.

The Achilles’ heel of the stated holding is that it limits its consideration to the single circumstance that the policy confers the right-to-sue on a judgment and disregards the inherent attributes of a judgment and its force insofar as time limitation for its enforcement is concerned. The majority, in other words, has seen fit to focus its attention on the packaging, and not the content, of the judgment privilege.

I disagree with the majority’s disposition for these reasons:

It is settled Pennsylvania law that (1) an action on a judgment is not governed by the six-year Pennsylvania Statute of Limitations applicable to contract actions, and (2) the vitality of a judgment prevails undiminished for a period of twenty years inasmuch as a presumption of payment arises only after a lapse of twenty years.

The policy here provides that the insurer may be sued for recovery of a judgment obtained against its insured to the extent of its coverage. It does not fix a time limit for the institution of such an action although it could have done so under prevailing Pennsylvania law.

Since the policy fixes no time limitations respecting the exercise of its right-to-sue provision we must resort to Pennsylvania decisions applicable to the construction of an insurance policy.

These settled Pennsylvania principles are applicable:

“It is well settled that an insurance policy will be construed most strongly against the insurer who has prepared it,” and “[i]n case of doubt and ambiguity, a provision of an insurance policy will be construed against the insurer who drafted the instrument.”
“In determining what constitutes the obligation of a contract, no principle is more firmly established than that the laws which were in force at the time and place of the making of the contract enter into its obligation with the same effect as if expressly incorporated in its terms.” Beaver County Building and Loan Association v. Winowich, 323 Pa. 483, 489, 187 A. 481, 484 (1936) (emphasis supplied).

The majority has not given effect to the foregoing principles.

It has not construed the policy “most strongly against the insurer who has prepared it.”

It has not accorded the appellant the benefit of the Pennsylvania rule that an action on a judgment is not subject to the six-year Pennsylvania Statute of Limitations.

It has barred a suit upon a judgment which is less than twenty years old although it concedes that the vitality of the judgment exists for twenty years under Pennsylvania law. (footnote 4, majority opinion).

It has made a shambles of the right accorded by a policy to sue the insurer on a judgment by its ruling that when such an action is instituted it must be regarded as a suit upon the contract and not upon the judgment.

The net effect of the majority’s ruling is that it makes a judgment subject to the impact of the six-year Pennsylvania Statute of Limitations, applicable to contracts, in disregard of the Pennsylvania rule that a judgment is not governed by this statute.

“Rich gifts wax poor when givers prove unkind.”

In paraphrase: “Rich gifts wax poor when judges prove unkind.”

There remains this to be said:

There is no precedent in Pennsylvania, or any other jurisdiction, state or federal, for the majority’s holding that when a policy grants a right to sue the insurer on a judgment, such an action must be regarded as a suit upon a contract and not upon a judgment.

The majority here sets an unfortunate precedent of transcending importance in insurance law.

I would vacate the Order of the District Court.

      . Appellee Farm Bureau Mutual Insurance Company, which had issued the insurance policy in question, was merged with or otherwise acquired by appellee Nationwide Insurance Company several years prior to the institution of the present proceeding.

      . In 1963, Bolender filed a Writ of Execution on the judgment, but according to Bolender, “[t]he whereabouts of Bishop being unknown and Longstreth having become a clergyman, the Writ was not acted upon.”

      . Rose and Son, Inc. v. Zurich General Accident Co., 296 Pa. 206, 145 A. 813 (1929); Ferguson v. Manufacturers’ Casualty Insurance Company of Philadelphia, 129 Pa.Super. 276, 195 A. 661 (1937); Philadelphia Forrest Hills Corporation v. Bituminous Casualty Corporation, 208 Pa.Super. 461, 222 A.2d 493 (1966).
      Absent such a clause, Bolender could not sue the insurer directly to recover on the judgment rendered against the insured. Ferguson v. Manufacturers’ Casualty Insurance Company of Philadelphia, supra; Philadelphia Forrest Hills Corp v. Bituminous Casualty Corp., supra. A second remedy is also available however, that of issuing an attachment execution naming the insurer as garnishee. Ferguson v. Manufacturers’ Casualty Company of Philadelphia, supra at 280, 195 A. at 663; Wilkosz v. Employers’ Liability Assurance Corp., 13 Pa.Dist. & Co.R.2d 746, 748 (1957).

      . Under Pennsylvania law, a judgment is presumed discharged after 20 years. Smith v. Shoenberger, 176 Pa. 95, 34 A. 954 (1896).

      . Contrast Thorpe v. Schoenbrun, 202 Pa. Super. 375, 195 A.2d 870 (1963).

      . Paragraph 6 of “CONDITIONS” of the policy, captioned “Action Against Company” provides as follows:

        “No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this policy, nor until the amount of the Insured's obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.

        “Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. Nothing contained in this policy shall give any person or organization any right to join the Company as a co-defendant in any action against the Insured to determine the Insured’s liability.
      “Bankruptcy or insolvency of the Insured or of the Insured’s estate shall not relieve the Company of any of its obligations hereunder.”
      (Emphasis supplied).

      . Evans v. Cleary, 125 Pa. 204, 211, 17 A. 440, 442 (1889); Stewart v. Peterson’s Executors, 63 Pa. 230, 234 (1870); Vincent v. Watson, 40 Pa. 306, 309 (1861); Henry’s Estate (No. 1), 28 Pa. Super. 541, 543 (1905); 22 Pennsylvania Law Encyclopedia, Limitation of Actions, § 29.

      . Smith v. Shoenberger, 176 Pa. 95, 34 A. 954 (1896); Gregory v. Commonwealth, 121 Pa. 611, 15 A. 452 (1888); Reed v. Reed, 46 Pa. 239, 242 (1963); Peoples Loan & Investment Co. v. Perl, 45 Lackawanna Jurist 199 (C.P.1944); Baker’s Estate, 48 Pa.Dist. & Co.R. 163, 166 (C.P. Montgomery County 1943).

      . Ferguson v. Manufacturers’ Casualty Insurance Company of Philadelphia, 129 Pa. Super. 276, 280-282, 195 A. 661, 663-664 (1937). There the policy granted a right to sue the insurer for recovery of a judgment against the insured provided such suit was “brought within ninety (90) days after the right of action accrues. . . .”

      . Blue Anchor Overall Co. v. Pennsylvania Lumbermens Mutual Insurance Company, 385 Pa. 394, 397, 123 A.2d 413, 415 (1956).

      . Walter v. Dunlap, 368 F.2d 118, 120 (3 Cir. 1966) (citing Pennsylvania cases). See, too, Miller v. Boston Insurance Company, 420 Pa. 566, 570, 218 A.2d 275, 277 (1966); Papadell v. Harleysville Mutual Casualty Company, 411 Pa. 214, 216, 191 A.2d 274, 275 (1963).

      . Hamlet, Act III, Scene i.

      . The District Court’s Order under review is premised solely on the conclusion “that plaintiff’s claim is barred by the statute of limitations.” The majority has directed its consideration to the stated premise of the District Court’s disposition. This dissent lias likewise done so.


author: MULLIGAN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Lemuel Leon ORR, Jr., Appellant.
    No. 506, Docket 72-1864.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 22, 1972.
    Decided March 13, 1973.

      Alfred Lawrence Toombs, New York City, for appellant.
    John W. Nields, Jr., Asst. U. S. Atty., New York City (Whitney Nor.th Seymour, Jr., U. S. Atty. for Southern District of New York, and George E. Wilson, Sp. Asst. U. S. Atty., New York City, of counsel), for appellee.
    Before MOORE, FEINBERG and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal by Lemuel Orr, Jr., from a judgment of conviction entered on June 14, 1972 after a non-jury trial before Hon. Edward Weinfeld, United States District Judge. Orr was found guilty of unlawfully failing to report for induction into the Armed Forces (50 U.S.C. App. § 462(a)) and was sentenced to a prison term of six months.

Affirmed.

I.

The evidence shows that appellant registered with Local Board 12 in New York City in September 1969. He also submitted his classification questionnaire (SSS Form 100) in which he asserted a claim for conscientious objector status. On July 2, 1970, the Board mailed to appellant the Special Form for Conscientious Objectors (SSS Form 150). He, however, did not return the form and the Board, on October 27, 1970, classified him I-A, noting on his file “doubt sincere C.O.” He was duly notified of his classification and of his right to a personal appearance and an appeal.

On November 18, 1970, appellant made a personal appearance before Board Chairman David Edwards, who prepared a written summary of the interview:

Registrant appeared and was sworn. States he failed to return Form 150 because it was lost or destroyed in a fire. States he is a member of the Muslim religion and has been so for the past 8 or 9 months. He participates regularly in their activities and works in one of their health food stores. Produced membership card.
He claims conscientious objector exemption by reason of his religious beliefs and membership in the Muslim religion that he should not take part in wars which take human lives. However, he states he is not opposed to participation in all wars; that he would participate in a war in self defense which he thought was a threat to him, his family, his mosque, his loved ones or intimate community. Board believes he is sincere in his beliefs. Registrant informed to complete & return form 150 and consideration to be given upon receipt of same.

Appellant returned SSS Form 150 in which he made the following statement in describing the nature of his belief:

We believe that we who declared ourselves to be rightous [sic] Muslims, should not participate in wars which take the lives of humans. We do not believe this nation should force us to take part in such wars, for we have nothing to gain from it, unless America agrees to give us the necessary territory wherein we may have something to fight for.

On December 16, 1970, the Local Board noted:

Unable to determine sincerity without personal interview. Call in for interview.

Thus, the appellant made a second personal appearance on February 16, 1971. The Board summarized the interview as follows:

Registrant appeared and affirmed to tell the truth. He is a member of Muslim religion. He cannot participate in armed services as his present work is more meaningful. Present wars and conflicts have no value to him.
However, he could participate in a war that has value or meaningful benefit to him. Not eligible for C.O. classification. Reopening not warranted.

Appellant’s conscientious objector claim was rejected by the Local Board by a vote of 4-0, and on March 25, 1971 the Appeal Board unanimously (5-0) classified him I-A. Appellant was then ordered to report for induction on May 11, 1971. Upon his failure to report, this prosecution was commenced.

II.

The issue before a district court reviewing a Selective Service Board’s decision to deny a registrant conscientious objector status, is indeed the narrow one of whether or not the Board had a “basis in fact” for that decision. United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); Lovallo v. Resor, 443 F.2d 1262 (2d Cir. 1971). It would also seem clear that it was not the intent of Congress that the district judge permit a trial de novo as to whether or not he would classify the registrant as a conscientious objector; rather, Congress intended that the judge decide only whether there was a “basis in fact” for the classification in the Selective Service file. United States v. Lloyd, 431 F.2d 160, 166 (9th Cir. 1970), cert. denied, 403 U.S. 911, 91 S. Ct. 2210, 29 L.Ed.2d 688 (1971). Finally, in applying the tests for conscientious objector status “the Selective Service System must be concerned with the registrant as an individual, not with its own interpretation of the dogma of the religious sect, if any, to which he may belong.” Clay v. United States, 403 U.S. 698, 700, 91 S.Ct. 2068, 2070, 29 L.Ed.2d 810 (1971).

In light of these principles we affirm the decision below. The major attack of the appellant here is that the district court erred in failing to recognize the applicability of Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955). There the Supreme Court held that the willingness of a Jehovah’s Witness to participate in a “theocratic war,” in the “Armageddon” where the forces of good would clash with the forces of evil but without “carnal weapons,” did not prevent his classification as a conscientious objector. Appellant’s scholarly brief and argument on appeal are in effect an attempt to equate the Black Muslim tenets with those of Jehovah’s Witnesses in the area of conscientious objection to war. In view of the holdings of the Supreme Court we have referred to, the question is not the tenets of the church but the beliefs of the registrant as expressed to the Board which had the responsibility of classifying him. Judge Weinfeld carefully considered Sicurella in his opinion and there is little we need add to his scholarly analysis.

Orr’s statement to the Board on his SSS Form 150 provided it with an ample basis in fact to determine that his objection to war, was selective and conditional. He was not opposed to all wars. His willingness to fight in a war was conditioned on America’s giving the Black Muslims “the necessary territory wherein [he would] have something to fight for.” The appellant now urges that the territory was really theocratic like the Kingdom of Jehovah and the fighting would be without “carnal weapons” but by means of the power of Allah operating through the bodies of his followers. The Board, on the basis of Orr’s statement, had the right to consider that the territorial acquisition suggested would be material, not spiritual, and that the “war” to defend it would be conventional. Appellant is relying not on evidence before the Board but on extrapolations of his own testimony before Judge Weinfeld who, although trying the case without a jury, had to caution Orr’s counsel on several occasions not to lead the defendant. Orr admittedly did not simply repeat the testimony he had given before the Board but stated that when he had appeared he had just come into the temple and did not have a full understanding of what he said or “should have said.” We do not believe that Orr’s evolving understanding of what he believes is an appropriate criterion for judging whether or not the Board had a basis in fact for the determination it was required to make from the record before it. Nevertheless, if any error was committed by Judge Weinfeld in permitting the examination of Orr to continue as to his present views which were not held or articulated at the time of his appearance before the Board, it was not prejudicial to the appellant.

Appellant contends that the failure of the Appeal Board to provide a “statement of reasons” precludes a meaningful judicial review and the conclusion of Judge Weinfeld that the Appeal Board was not required to state reasons was “plainly erroneous.” This contention has no merit. The emerging doctrine in the Selective Service cases, that the Board must furnish reasons, is based on general administrative law principles. SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943). We know of no authority which precludes an appellate administrative tribunal from affirming the findings of a subordinate board without restatement. The Local Board’s stated reason was in effect that Orr was not “conscientiously opposed to participation to war in any form.” Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). Had the Local Board proceeded on more than one ground and if one of them was in fact invalid, a simple affirmance would make it impossible for a court to determine the basis of the decision. No such problem exists here.

Appellant argues further that the Local Board erred by finding that Orr’s willingness to use force to defend himself, his mosque, his loved ones or intimate community “foreclosed him from the C.O. exemption.” While the use of force to repel an assailant or an attack on one’s family or friends would not be inconsistent with conscientious objector status, United States v. Purvis, 403 F.2d 555, 563 (2d Cir. 1968), there is nothing in the record to suggest that the Board based its decision on this position. As Judge Weinfeld pointed out in his opinion below the only mention made by Orr of his willingness to fight in a war in self defense, was in his November 18, 1970 appearance before the Board. It was after this appearance that the Board provided him with a C.O. form (SSS Form 150) advising him to fill it out and that consideration would be given upon its receipt. The Board did not deny him C.O. status on the basis of this view. It was only after he returned the form and the Board called him back for a second personal interview on February 16, 1971 that he was denied C.O. status. The Board then clearly indicated that its reason was that Orr was willing to participate in a war which had “value or meaningful benefit to him”, i.e., to defend territory given by America to the Black Muslims.

Appellant’s argument that the Board based its decision on the erroneous “self defense” position, is based not on the record but on Chairman Edwards’ testimony before the Court regarding the Local Board’s policy and practice. This is testimony which the appellant curiously urges was erroneously admitted citing Lenhard v. United States, 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1972), which vacated our affirmance of Lenhard’s conviction, 455 F.2d 1406 (2d Cir. 1971), and remanded the case for our consideration of points raised in the memorandum of the Solicitor General; those points have no application here. In Lenhard the local board had dismissed a claim of conscientious objection without stating reasons. Thus there was no opportunity to rebut the local board’s position on appeal — there was no opportunity for a meaningful administrative review. Here there is no question of the reasons for the Board’s decision. Whether or not Edwards’ testimony was properly admissible, no prejudice is established by the defendant. In fact, Edwards had no independent recollection of Orr’s case and could only testify as to general procedures of the Board.

Having considered all of the arguments made on this appeal, we affirm.

      . The District Court opinion, filed on May 11, 1972, is reported at 343 F.Supp. 178 (S.D.N.Y.).

      . Orr did not dispute the fact that he intentionally and willfully failed to report for induction. Rather, he claimed that he had erroneously been denied conscientious objector status under 50 U.S.C. App. § 456(j) which provides that any registrant who “by reason of religious training and belief, is conscientiously opposed to participation in war in any form,” is entitled to exemption from military service.

      . Congress in the 1971 amendments to the Selective Service Act of 1967 (Act of Sept. 28, 1971, Pub.L.No.92-129, 85 Stat. 348) provided that “[i]n the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision.” (50 U.S.C. App. § 471a (b)(4)). This section however, does not by its terms, purport to be retroactive. As we noted in United States ex rel. Checkman v. Laird, 2 Cir., 469 F.2d 773 (1972), “it is arguable” that a local board’s statement of reasons was required prior to the 1971 amendments, see also Fein v. Selective Serv. Sys., 405 U.S. 365, 380-381, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972); but we did not indicate that the argument would have equal force with regard to an appeal board, when the local board has given reasons.

      . See generally, Clay v. United States, 403 U.S. 698, 704-705, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971).

      . This Court first considered the Lenhard ease in 437 F.2d 936 (1970). There, noting that neither the Local Board nor the State Appeal Board had given any explanation for their denial of the C.O. classification, we remanded the case to the district court to allow the government to show the reasons upon which the Board had acted. In view of new testimony by Local Board members that they had found Lenhard’s claim insincere, the district court reinstated the conviction and sentence, and we affirmed without opinion (455 F.2d 1406 (1971)). On remand from the Supreme Court’s vaeature of judgment (405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1972)) we reversed Len-hard’s conviction. 461 F.2d 1268 (1972).


author: PHILLIPS, Chief Judge.

text:
    Jeanette GRAY, Plaintiff-Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 72-1416.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 30, 1972.
    Decided and Filed March 1, 1973.

      John L. Wolfe, Akron, Ohio, for plaintiff-appellant.
    Donald D. Weisberger, Asst. U. S. Atty., Cleveland, Ohio, for defendant-ap-pellee; Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, on brief.
    Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
   PHILLIPS, Chief Judge.

The legitimacy of a minor child is the issue presented in this Social Security case. The District Court, 340 F.Supp. 680, upheld the decision of the Secretary to the effect that the child is not the daughter of the wage earner. We reverse.

The child is Tamara Lynn Gray, who was born November 24, 1962. Her mother, the plaintiff-appellant in this case, contends that Tamara is the legitimate daughter of Freddie M. Gray, who died in 1970 while insured under the Social Security Act.

Mr. and Mrs. Gray were married August 11, 1960. They lived together until January 1961, a period of four to five months. Mr. Gray sued for divorce. Mrs. Gray filed a cross-petition asking for alimony and contesting the divorce petition. She stated that she did not consent to a divorce at that time because she was still in love with her husband and was hopeful for a reconciliation. Mrs. Gray further testified that after their separation her husband continued to visit her sporadically for two or three days at a time and that these visits continued until the end of January 1962. She testified further that she was visited by her husband on the last day of January or the first day of February 1962, and during that visit they had sexual relations which were carried to completion on at least two occasions so as to make conception possible. She denied having sexual relations with any other man prior to that time or during the months immediately following that time. Subsequent to the alleged visit by her husband she missed her menstrual periods, and in April was advised by an obstetrician that she could expect a baby approximately on November 3, 1962. Mrs. Gray said that the baby was three weeks past due when she was born, and that she weighed nine pounds, two ounces, and was 21 inches long.

Prior to his death Mr. Gray denied that he ever had any sexual relations with his wife after their separation. He further alleged that he had undergone an operation for a vasectomy in 1950, making it impossible for him to become father of a child. The allegation of sterility resulting from the vasectomy was supported by Mr. Gray’s surgeon, who conceded, however, that this operation is less than one hundred per cent effective. Mr. Gray refused to submit to a blood test.

After all reconciliation attempts had proved ineffective, a divorce was granted on January 15, 1965, in a contested proceeding in the Common Pleas Court of Summit County, Ohio. Mr. Gray’s attorney informed the Common Pleas Court of his client’s claim of sterility, but the court expressly found that “one child, Tamara Lynn Gray, has been born to the plaintiff during lawful wedlock as the issue of said marriage.”

On January 25, 1965, Mrs. Gray filed a claim with the Social Security Administration on behalf of herself and the child. Despite the finding of the Ohio Court to the contrary, the Secretary found that Tamara was not the daughter of Freddie Gray. Although the record contains substantial evidence supporting the findings of the Secretary, we hold that under the particular facts of this case and in consideration of the law of Ohio, the Secretary should have followed the holding of the State court.

Section 216(h)(2)(A) of the Social Security Act (42 U.S.C. § 416(h)(2) (A)) provides:

“In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.”

The controlling question is whether, under the law of Ohio, Tamara would be entitled to share in the distribution of Mr. Gray’s intestate personal property as his child. If Tamara is deemed to be a legitimate child of Freddie Gray, she would be entitled to a share under the Ohio statute of descent and distribution. § 2105.06, Ohio Rev. Code.

Ohio follows the common law rule that a child conceived during the existence of a lawful marital relation is presumed to be the legitimate issue of the marriage. This presumption is not conclusive. It may be rebutted by clear and convincing evidence to the contrary. State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944). The presumption applies to questions of heirship. Harris v. Seabury, 30 Ohio App. 42, 164 N.E. 121 (Fayette Cty.Ct. of App.1928).

In the present case the right of the child to Social Security benefits is controlled by the Ohio law of intestate succession of personal property. We have no doubt that an Ohio probate court, in determining an issue of intestate succession, would follow an adjudication of legitimacy made by an Ohio Court of Common Pleas in a contested divorce case.

Although the Secretary is not bound by the decision of a State trial court in a proceeding to which he was not a party, we hold that he is not free to ignore an adjudication of a state trial court where it is fair and consistent with the law as enunciated by the highest court of the State. Legory v. Finch, 424 F.2d 406 (3rd Cir. 1970). We are convinced that the Supreme Court of Ohio would hold, under the facts of the present case, that the right of Tamara Lynn Gray under the Ohio law of intestate succession would be controlled by the decision of the Common Pleas Court in the contested divorce proceedings.

Since this is a situation falling within the general category of domestic relations, special deference should be given by federal tribunals to the resolution by the State court. Traditionally the states, not the federal government, have been considered the exclusive arbiter of these problems. In re Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500 (1890); Harris v. Turner, 329 F.2d 918 (6th Cir.), cert. denied, 379 U.S. 907, 85 S.Ct. 202, 13 L.Ed.2d 180 (1964), rehearing denied, 379 U.S. 985, 85 S.Ct. 673, 13 L.Ed.2d 578 (1965); Carqueville v. Woodruff, 153 F.2d 1011 (6th Cir. 1946).

We therefore hold that the Secretary should have accepted the determination made by the State court. Such a holding is proper in the present case where the following prerequisites are found: 1) An issue in a claim for social security benefits previously has been determined by a State court of competent jurisdiction; 2) this issue was genuinely contested before the State court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.

We find that the present case is distinguishable from the cases relied upon by the Secretary. In both Cruz v. Gardner, 375 F.2d 453 (7th Cir.), cert. denied, 389 U.S. 886, 88 S.Ct. 160, 19 L.Ed.2d 184 (1967), and Cain v. Secretary of Health, Education and Welfare, 377 F.2d 55 (4th Cir. 1967), ex parte State trial court decisions were involved. Both decisions speak of serious questions as to the consistency of the decision of the trial courts with the law enunciated by the highest State court. Our decisions in Dowell v. Gardner, 386 F.2d 809 (6th Cir. 1967), and Old Kent Bank & Trust Co. v. United States, 362 F.2d 444 (6th Cir. 1966), also involved ex parte trial court decisions.

We reemphasize that the divorce decree which adjudicated Tamara Lynn Gray to be the lawful issue of the marriage of her mother and Freddie M. Gray, was rendered in a contested proceeding. This finding was in accord with the strong presumption under Ohio law that a child conceived during the existence of a lawful marriage is the legitimate issue of the marriage and is consistent with the law enunciated by the appellate courts of Ohio.

Reversed and remanded for a determination of benefits.

      . The Act was amended in 1965 by the addition of § 216(h)(3) (42 U.S.C. § 416 (h) (3)). The amendment provides that a child of an insured not qualifying under § (h) (2) may nevertheless be deemed a child of the insured if:
      “(B) in the case of an insured individual entitled to disability insurance benefits, or who was entitled to such benefits in the month preceding the first month for which he was entitled to old-age insurance benefits—
      “(i) such insured individual — •
      “(I) has acknowledged in writing that the applicant is his son or daughter,
      “(II) lias been decreed by a court to be the father of the applicant, or
      “(III) has been ordered by a court to contribute to the support of the applicant because the applicant is his son or daughter,
      and such acknowledgment, court decree, or court order was made before such insured individual’s most recent period of disability began
      This 1965 amendment was not in effect at the time the application was filed in the present case.

      . The record in the present case reveals that Tamara Lynn Gray was listed as Mr. Gray’s heir when his estate was released from administration by the Probate Division of the Common Pleas Court of Stark County.

      . For results contrary to Cruz and Cain see Collins v. Celebrezze, 250 F.Supp. 37 (S.D.N.Y.1966); and Zeldman v. Celebrezze, 252 F.Supp. 167 (E.D.N.Y.1965).


author: BOREMAN, Senior Circuit Judge:

text:
    Mrs. Cornelius Cuthbertson HILL, Appellee, v. W. A. ROWLAND and B. S. Treadaway, Appellants.
    No. 72-1258.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 3, 1972.
    Decided March 14, 1973.
    J. J. Wade, Jr., Charlotte, N. C. (R. C. Carmichael, Jr., G. Patrick Hunter, Jr., and Wade & Carmichael, Charlotte, N. C., on brief), for appellants.
    George S. Daly, Jr., Charlotte, N. C., submitted on brief, for appellee.
    Frank G. Carrington, Jr., Executive Director, Americans for Effective Law Enforcement, Inc., on brief, for amicus curiae, Americans for Effective Law Enforcement, Inc.
    Before BOREMAN and BRYAN, Senior Circuit Judges, and CRAVEN, Circuit Judge.
   BOREMAN, Senior Circuit Judge:

This is a civil action wherein the plaintiff, Mrs. Cornelius Cuthbertson Hill, seeks to recover compensatory and punitive damages from the defendants, police officers of the City of Charlotte, North Carolina.

On August 18, 1969, Mrs. Hill, black, a 40-year old widow, was employed as a taxi-driver in Charlotte. At about 10 A.M. on that day, she parked her cab across from, and started across the street toward, an establishment known as “Mr. Fred's,” her purpose, as subsequently stated by her, being to arrange with the proprietor to have her shoes repaired at a later date. “Mr. Fred’s” had been under surveillance by the Charlotte police during the preceding week due to an informant’s tip that an illegal lottery was there being operated. On three separate days during the surveillance, and shortly after several other persons had entered and left, Mrs. Hill had been observed entering the premises, staying only one or two minutes, then returning to her taxi and driving away. At the moment of her arrival on the morning of August 18, Charlotte police officers, including defendants W. A. Rowland and B. S. Treadaway, who were inside the premises known as “Mr. Fred’s” executing a search warrant, had seized certain evidence of an illegal lottery and had arrested several persons present including the proprietor who was found with “tickets,” money and an adding machine on a table.

Mrs. Hill testified that she had started across the street after parking her cab when she saw a policeman, not in uniform, who was a “boyfriend” of hers leaning across a car parked in front of her cab, and she spoke to him but he did not answer. Someone at that time, “was hollering something about don’t go there, or something.” Mrs. Hill “started back across the street to slap the hell out of him because he didn’t speak to me,” but was, she claimed, grabbed from behind by a white man who pushed her into “Mr. Fred’s.” She was not able to identify the person who had so pushed her and there was no evidence that the officers inside the premises being searched had any knowledge that her entry was involuntary or accomplished by force. Upon her entrance, officers Treadaway and Rowland recognized Mrs. Hill as the black female observed on previous occasions during the surveillance. According to his testimony, officer Treadaway had been told by a reliable informer that she was periodically “taking away the [lottery] tickets.” Mrs. Hill was officially placed under arrest by officer Rowland.

Mrs. Hill was searched by a female police officer who was participating in the raid and who testified that she first identified herself as “Officer Gillespie.” No evidence of participation in a lottery was found on plaintiff’s person. A pistol, which was described as a “.38 special” and which she carried in a holster on her hip, was taken from her. Mrs. Hill testified: “And then she [the female officer] started unbuttoning my blouse. I had on a blue blouse and she started unbuttoning it down the front. And then I started cursing and reached for my gun . . . and they grabbed my gun because I was going to shoot anybody trying to take my clothes off.” The female officer denied searching the “upper portion of Mrs. Hill” and testified that the gun was confiscated prior to the search.

Mrs. Hill was taken before a Magistrate at the recommendation of defendant Treadaway. Evidence was presented to the Magistrate but, at the request of Treadaway, no warrant was issued for her arrest and she was released. However, the police kept her pistol temporarily and required her to produce evidence of lawful ownership. She was released and upon her return with persuasive evidence of lawful ownership of the pistol it was delivered to her.

Mrs. Hill instituted this suit in the district court against the several named defendants and advanced various theories of liability. The case ultimately went to the jury for a determination whether the arresting officers, Rowland and Treadaway, were liable to Mrs. Hill for (1) a violation of her civil rights under 42 U.S.C. § 1983, which violation assertedly arose from her warrantless arrest without probable cause, (2) false imprisonment, and (3) assault and battery, the latter two theories presented in plaintiff’s complaint under the common law of North Carolina. The jury found each defendant liable under the first two theories but not under the third, and further found Mrs. Hill entitled to recover damages in the amount of $2.50 from each of the two defendant officers for each wrong. Rowland and Treada-way prosecute this appeal, not because of the amount of damages awarded but, as they say, because of the principle involved.

The issue is not unimportant. It concerns the standards by which police officers are to be governed and which they must observe and satisfy when making an arrest without a warrant if they are to avoid civil liability under § 1 of the Civil Rights Act of 1871, 17 Stat. 13, now 42 U.S.C. § 1983. In their answer to the complaint, under “First Defense,” the police officers alleged a “good faith” defensé by stating: “ .' . . Plaintiff was temporarily detained in good faith by some police officers on suspicion of operating a lottery, with reasonable grounds and probable cause to do so.” Under “Motions” in their answer, the police officers additionally stated that they were acting upon reasonable grounds and probable cause while attempting to locate and arrest persons charged in warrants with criminal offenses. The defendants requested that the jury be instructed as follows:

“4. The defense of good faith and probable cause is available to the defendants, and if you find that any defendant arrested the plaintiff, and that said defendant reasonably believed in good faith that the arrest was constitutional, then it would be your duty to render a verdict for the defendant even though the arrest was in fact unconstitutional.”

This requested instruction was based upon Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), a case which arose under § 1983 and which concerned the standard of civil liability for arrests made under a law later held unconstitutional. The Court there stated:

“We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.” 386 U.S. at 557, 87 S.Ct. at 1219.

The district court refused to instruct the jury as requested for the stated reason that Pierson v. Ray “is not a pertinent authority in this case.” Instead, the court instructed the jury:

“The standard for arrest without a warrant amounts, instead, to a requirement that the arresting officer have probable cause and this is an objective standard, not personal to the law enforcement officer, and this standard has been very succinctly expressed by the Supreme Court a few years ago in Beck against Ohio [379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)] as follows: Whether an arrest is constitutionally valid depends upon whether at the moment the arrest was made the officers had probable cause to make it, whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man to (sic) [in] believing that the petitioner had committed or was committing an offense, bearing in mind that as in the case of searches the warrant is the procedure of choice.
“ . . . The basic question is not the rights of law enforcement officers nor what the attitude of this community is towards, or the feeling of people of this community towards arrests, but the question is whether as between the individuals here the circumstances gave these officers probable cause to believe that a violation of law was taking place by Mrs. Hill at the time she was arrested. And this is the simplest statement I know to make of the question, the first question you’ve got to decide.
“The concept of probable cause is not a personal thing. We are not here trying any case whether the defendants are mean or not, whether they acted in good faith belief that what they were doing was correct. The standard which, as I read the constitution and the decisions, the standard which applies doesn’t challenge the good faith of the defendants. It simply asks you to decide whether under the circumstances, at the time of the arrest, a reasonably prudent man in their circumstances, knowing what they did, had probable reason or probable cause to believe that Mrs. Hill was then and there committing or had at that time committed a crime.”

We think the lower court was in error in instructing the jury that the test of liability in this § 1983 action was the objective test of “probable cause” rather than the partly subjective test of the reasonable good faith belief of the police officers in the legality of the arrest.

In Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 456 F.2d 1339 (2 Cir. 1972), the court reviewed the defense of good faith and probable cause which “[a]t common law the police officer always had available to him,” stating that such defense “has been consistently read as meaning good faith and ‘reasonable belief’ in the validity of the arrest or search. Restatement (Second) of Torts § 121(b) (1965); 1 Harper & James, The Law of Torts § 3.-18 at 277 (1956).” Bivens, supra, 456 F.2d at 1347. The court held that this defense was available to FBI and Federal Narcotic Agents in civil suits against them for damages for unconstitutional arrest or search. Since federal officers were the defendants in Bivens and were not purporting to act under color of a state statute, ordinance, regulation, custom, or usage, § 1983 was not directly involved. It is clear, however, that the Second Circuit thought the standards for federal and state officers should be the same, Bivens, supra, 456 F.2d at 1346-1347. judge Medina summarized in Bivens:

“Therefore, to prevail the police officer need not allege and prove probable cause in the constitutional sense. The standard governing police conduct is composed of two elements, the first is subjective and the second is objective. Thus the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable. And so we hold that it is a defense to allege and prove good faith and reasonable belief in the validity of the arrest and search and in the necessity for carrying out the arrest and search in the way the arrest was made and the search was conducted. We think, as a matter of constitutional law and as a matter of common sense, a law enforcement officer is entitled to this protection.” 456 F.2d at 1348.

We approve the holding in Bivens as reflected in the court’s opinion. We hold that the principles therein enunciated are applicable to the instant case.

In her brief Mrs. Hill does not take issue with Bivens, but rather argues that the district judge complied with its requirements since he defined probable cause in terms of “reasonably trustworthy information” sufficient to satisfy a “prudent man” that a crime had been or was being committed. We do not agree. As Judge Lumbard so clearly explained in his concurring opinion in Bivens, 456 F.2d at 1348:

“Thus there are two standards to be considered. The first is what constitutes reasonableness for purposes of defining probable cause under the fourth amendment for the protection of citizens against governmental overreaching. The other standard is the less stringent reasonable man standard of the tort action against government agents. This second and lesser standard is appropriate because, in many cases, federal officers cannot be expected to predict what federal judges frequently have considerable difficulty in deciding and about which they frequently differ among themselves. It would be contrary to the public interest if federal officers were held to a probable cause standard as in many cases they would fail to act for fear of guessing wrong. Consequently the law ought to, and does, protect government agents if they act in good faith and with a reasonable belief in the validity of the arrest and search.”

We conclude that Judge Lumbard’s analytical statement with respect to standards applicable to federal law enforcement officers should be held to apply with equal force to state law enforcement officers.

Bivens has recently been approved and applied by the Sixth Circuit in Jones v. Perrigan, 459 F.2d 81 (1972). And in Richardson v. Snow, 340 F.Supp. 1261 (D.Md.1972), the district court stated its views which we quote with approval as follows:

“This court believes that the reasoning of the Second Circuit in Biv-ens, supra, is as valid and as applicable in actions under § 1983 involving state or local law enforcement officials as it is to federal law enforcement officers. As stated in Whirl v. Kern, 407 F.2d 781 at 790 (5 Cir. 1969), ‘An arrest is often a stressful and unstable situation calling for discretion, speed, and on-the-spot evaluation.’ To require the police officer, under penalty of personal liability for damages if he is in error, to make on-the-spot complex and intricate legal determinations of the existence or absence of probable cause under the Fourth and Fourteenth Amendments when the courts, acting in a more leisurely and relaxed atmosphere, have difficulty in making these decisions is to place the policeman in just such a position of acting at his peril as was declared to be intolerable in Pierson v. Ray, supra, 386 U.S. at 555, 87 S.Ct. at 1218. It is no answer to this intolerable burden to cite cases such as Beck v. Ohio, 379 U.S. 89, at 97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), where a subjective good-faith test for actions of the policemen in an arrest was rejected since those cases deal with constitutional standards applicable to the admission of evidence in the trial of a criminal case rather than to the question of civil liability of a policeman who, in good faith and with a reasonable belief in the legality of his acts, has attempted to perform his duty to protect society. Such a distinction in this court’s view is entirely compatible with the balancing of the interest qf society in attempting to protect itself from the effects of criminal behavior and of the interests of the individual in the enjoyment of his constitutional rights.” 340 F.Supp. at 1266.

In her complaint, and in addition to her claim of a cause of action under § 1983, plaintiff alleged that, on the facts as set forth by her, she had “a right to recover damages for false imprisonment, under the common law of the State of North Carolina.” At trial the defendants requested that the jury be instructed upon North Carolina statutory law governing arrest without a warrant, N.C.Gen.Stat. § 15-41 (1965 Repl.Vol.). The court did instruct the jury, in essence, as to the substance of subsection (1) of the statute but without any elaboration or explanation.

The court then instructed the jury further:

“[Plaintiff’s] contention also is that the defendants admitted on the spot that they had no basis to keep her and that, whether the original arrest was lawful or not, continued acts of false imprisonment took place, starting from the time they admitted they made a mistake and that everything that happened to her following her search there at the premises, the taking of her to the police station and subjecting her to identification and fingerprint procedures, the extended withholding of her property, that is, the pistol, that all of those things, even on the view of the case presented by the defendants, were unlawful and were violations of her rights, constitutional or otherwise. And on that phase of the question the Court charges you that the fact that somebody is under investigation does not justify his imprisonment and that if you believe the testimony of the defendants on that subject, that taking her to the police station and the other things that happened to her after that were done, such parts of that as you find were done by Mr. Rowland or were supervised or directed by Mr. Treadaway did constitute violations of her rights. This is without regard to what you might find about the lawfulness of the original arrest.
“Now, with regard to the circumstances that occurred after the original arrest, here again, as the Court advised you a while ago, unless the original arrests were lawful, there could be no justification for doing the things that were done after she had been searched unless there remained as of the time of the search some reason to keep her, not just suspicion, not just investigation, but some continuing-legal reason within the standards that have been advanced, then there’s been no showing of any basis for her continued imprisonment and she would be entitled to recover for whatever damages she sustained by being taken to the police station and fingerprinted and kept and then having to go to the trouble of getting her gun back.” [Emphasis supplied]

In addition to the confusion apparent in the charge as quoted immediately above the court made no attempt to discuss or clarify N.C.Gen.Stat. § 15-41 (1) as the court would interpret and apply it in the context of a civil action such as here involved. Although the “good-faith” issue was discussed at length by counsel and the court in relation to the constitutional question under § 1983, there is nowhere in the record to be found any argument or discussion as to the applicability of the “good-faith” defense to the action for false imprisonment under either the North Carolina statute or the common law. Independent investigation indicates the possibility that conflicting inferences might be drawn from existing authority. Cf. Perry v. Gibson, 247 N.C. 212, 100 S.E.2d 341 (1957), with Hicks v. Niven, 210 N.C. 44, 185 S.E. 469 (1936).

In determining the proper disposition of this appeal there is an additional consideration. It is clear from the transcript of the trial proceedings, from the instructions of the trial judge, and from the issues as to liability as propounded to the jury, that the predominant issue at trial was the one presented under § 1983 and the members of the jury were given little or no information or instruction which would enable them mentally to separate successfully the issue of false arrest from the issue of false imprisonment. The court submitted to the jury the following questions as to each defendant, indicating that each question be answered categorically:

Was the plaintiff denied due process of law by arrest without probable cause under the circumstances, or otherwise ....
Was the plaintiff unlawfully arrested and deprived of her liberty ....

The jury answered “Yes” to each question as to each defendant. The first question, it would seem, was designed to present for determination the issue arising under § 1983; the second, apparently, was intended to present for determination the issue of false imprisonment under North Carolina law.

Without reference to the law of North Carolina we note that an improper or illegal arrest and a period of detention, of whatever length, may carry with it an implication of false imprisonment. The jury, in answering the second question in the affirmative, may have found that Mrs. Hill was falsely imprisoned due solely to the fact that they had determined that she was arrested without probable cause. The questions to be answered categorically reflect this situation. It would appear that if the first question were answered “Yes” the second could not be answered otherwise than in the affirmative. However, the determination in response to the first question above was made under improper instructions from the court. Thus we find it necessary to reverse and remand for a new trial as to both issues which were determined by the jury in favor of the plaintiff.

Reversed and remanded.

      . “Mr. Fred’s” was a one-story shack of cheap construction. Mrs. Hill did not then have with her the shoes to be repaired. Shoe repair was not done at “Mr. Fred’s.” Mrs. Hill testified that the actual work was done “about a block down the street,” but that pick-up and delivery were accomplished at “Mr. Fred’s” since the repair man had another job and was not always at his shop.

      . The lottery was referred to during the trial and by the court in its charge to the jury as “numbers rackets” and “butter and eggs racket.”

      . Plaintiff testified that none of the officers said anything about who they were, and that she did not realize they were police officers until about 15 minutes after entering “Mr. Fred’s” when “a man took out some kind of radio and called for some police cars and that’s when 1 knew it was the police.”

      . The court expressly stated, “We believe this to be the same defense held applicable to cases arising under Section 1983. Pierson v. Ray, supra, 386 U.S. 547, 87 S.Ct. 1213 (1967).” 456 F.2d at 1347.

      . § 15-41. When officer may arrest without warrant. — A peace officer may without warrant arrest a person :
      (1) When the person to be arrested has committed a felony or misdemeanor in the presence of the officer, or when the officer has reasonable ground to believe that the person to be arrested has committed a felony or misdemeanor in his presence.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAYUGA CRUSHED STONE, INC., Respondent.
    No. 240, Docket 72-1631.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 20, 1972.
    Decided March 8, 1973.

      Roger Hartley, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, Atty., Washington, D. C., of counsel), for petitioner.
    James L. Burke, Elmira, N. Y., for respondent.
    Before MOORE, MULLIGAN and TIMBERS, Circuit Judges.
   MULLIGAN, Circuit Judge:

The National Labor Relations Board has petitioned this court pursuant to Section 10(e) of the National Labor Relations Act, as amended (29 U.S.C. § 160(e)), to enforce its order of February 23, 1972 (195 N.L.R.B. No. 108) against Cayuga Crushed Stone, Inc. (Cayuga). The Board affirming the Trial Examiner, found that Cayuga had violated Sections 8(a)(1) and (5) of the Act (29 U.S.C. §§ 158(a)(1) and (5)) by withdrawing recognition of the International Union of Operating Engineers, Local 545 and the International Brotherhood of Teamsters, etc., Local 65, as joint representatives of its employees, before a reasonable period of bargaining had taken place. As an alternative ground, the Board found that Cayuga had insufficient evidence upon which it could question the Unions’ representative status. Since the Board’s findings are based on substantial evidence, we grant enforcement of the Board’s order directing that Cayuga cease and desist from further violations, bargain with the Unions and post the usual notices of the proceedings.

Cayuga is engaged in quarrying, crushing and selling crushed stone in South Lansing, New York. On March 29th and 30th, 1971, nine of thirteen employees constituting a concededly appropriate bargaining unit, signed union authorization cards. Eight of the employees designated the Operating Engineers and one the Teamsters as their representative for collective bargaining purposes. The Unions promptly advised Cayuga in a joint letter on March 30, 1971 that they represented a majority of the employees at the quarry in South Lansing and requested recognition as Bargaining Representative for the purpose of entering a collective bargaining agreement concerning wages, hours and working conditions. The Unions also filed a pétition dated April 5th with the Board requesting an election. By letter dated April 6th the Board notified Ca-' yuga of the petition. The letter advised Cayuga of its right to be represented by counsel, adverted to the right of its employees to election information and requested certain data from Cayuga. On April 6th or 7th, 1971, Mr. Besemer, Cayuga’s General Manager, met with representatives of the two Unions and although there was a refusal by the Unions to show the authorization cards to him, he accepted their majority representation and orally agreed to sign a recognition agreement. On April 9th, 1971, the agreement was executed. In essence, it provided that Cayuga recognized the two Unions as bargaining agents and agreed to commence negotiation of a collective bargaining agreement.

Since Cayuga had agreed to recognize the Unions, Besemer told a Union representative to cancel the petition for certification. The Unions withdrew the petition and the Board advised Cayuga of this fact on April 15th.

The parties met on April 12th, April 29th and May 18th discussing job classifications, pension plans and, at the last meeting, a 16 page contract presented by the Unions. Agreement was reached only on the question of the assignment of overtime work. A May 27th meeting was cancelled and it is undisputed that on or about June 1st, Cayuga determined to withdraw recognition of the Unions. Subsequent efforts by the Unions to communicate with Cayuga, including a further Union demand letter dated June 15th, proved unsuccessful.

The alleged reason for the failure of Cayuga to continue negotiations was its belief that the Unions no longer represented a majority of the employees in the unit. Cayuga’s position that the Unions had lost majority support was primarily based on Besemer’s testimony that one employee, Rogers, had indicated that in his view a majority of the workers were not happy with the Unions. Rogers wrote to the Board stating:

I and my fellow employees . do not have a Union. We find out [sic] that our boss has agreed to have the Teamsters and Engineers represent us. Most of us do not want this.
Will you please send me forms so that we can send them in, and have an election.

The Board responded by letter dated June 15th indicating that if the employer had recognized the Unions at a time when the Unions did not represent a majority of the employees they could file a charge: “If you feel there has been a violation of the Act, contact this office and you will be given assistance in filling out and filing of [sic] a charge.” Rogers showed his letter as well as the Board’s response to Besemer.

On June 11, 1971, the Unions jointly filed an unfair labor practice charge, and the General Counsel issued a complaint against Cayuga on August 10, 1971. At the hearing held on October 5, 1971, the sole issue to be determined was whether or not Cayuga had refused to bargain in violation of Section 8(a) (5) of the Act. The Board found that Cayuga’s refusal, on June 15, 1971 and thereafter, to bargain at the Unions’ request constituted such a violation.

We think the Board’s finding that Cayuga had in fact no reasonable basis to question in good faith the Unions’ majority status is amply supported by the record. (See NLRB v. Rish Equipment Co., 407 F.2d 1098, 1101 (4th Cir. 1969); NLRB v. Master Touch Dental Laboratories, Inc., 405 F.2d 80, 82-83 (2d Cir. 1968)). Rogers, the employee, admittedly could not speak for the majority of the members of the unit and his feeling that most of the members did not want the union, was in effect a personal reaction without any objective substantiation. After the issuance of the order here Cayuga did file a “Motion to Allow Submission of New Evidence” on April 21, 1972. The motion was based upon the receipt of a letter from all of the affected employees announcing that they all had second thoughts about signing the cards and “feel a Union could not help us at this time.” The Board treated the motion as one for reconsideration of the Decision and Order and denied it as lacking in merit. The Board cited Franks Bros. Co. v. NLRB, 321 U.S. 702, 705, 64 S.Ct. 817, 819, 88 L.Ed. 1020 (1944), for the proposition that “ ‘a bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed.’ ”

There is no doubt that if the bargaining relationship between the employer and the Unions had been established by Board certification after an election, the representative status of the Unions absent unusual circumstances would be irrebuttably presumed to continue for one year and after that time the presumption could be rebutted. Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954). The Board has not fixed any period of mandated collective bargaining where uncertified unions are involved but has maintained that the employer must bargain for a reasonable time. Here the Board found that the three bargaining meetings lasting not more than ten hours, in a one month period, were not adequate.

There is no doubt but that an election supervised by the Board which is conducted secretly and presumably after the employees have had the opportunity for thoughtful consideration, provides a more reliable basis for determining employee sentiment than an informal card designation procedure where group pressures may induce an otherwise recalcitrant employee, to go along with his fellow workers. It is further true that Justice Frankfurter in Brooks referred to the solemnity of the election and decertification process in approving the so-called “one year certification” rule of the Board. 348 U.S. at 99, 75 S.Ct. 176. The Court also recognized the fact that the one year rule was not applied by the Board or the courts either before or after the Taft-Hartley Act where the collective bargaining relationship was established by card check rather than a certification election. 348 U.S. at 101 n. 9, 75 S.Ct. 176. See also NLRB v. Gissel Packing Co., 395 U.S. 575, 598-599 & n. 14, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). There is, however, no intimation in the cases that a voluntary recognition after a card check designation, which admittedly creates a lawful bargaining status for the Unions, can be unilaterally disregarded before there has been an opportunity for a reasonable period of bargaining. The rationale of Brooks, as well as the holdings in other circuits in fact compel the conclusion that the Unions’ status must be recognized for a reasonable period despite the loss of majority employee support.

From the record it appears that a majority of the employees had voluntarily signed cards which in unambiguous language designated the Unions as representatives for the purpose of collective bargaining. The employer had freely entered into an agreement recognizing the status of the Unions as bargaining agents. Both employer and employees were fully cognizant of their rights. Certainly the employer would have access to counsel who could have advised it of the right to demand an election if there was any question of lack of majority support.

Having voluntarily determined that the Unions had a majority status which entitled them to recognition as the representatives of its employees and having foregone the right to request an election, we cannot accede to the proposition that the employer can now unilaterally determine that the Unions no longer represent a majority of the employees and refuse to bargain with them. It may well be that as of April, 1972, Cayuga did have a reasonable basis to determine objectively that the Unions had lost majority status. However, this was after almost a year of failure on the part of Cayuga to negotiate. While the Board here has not found that Cayuga has committed any other unfair labor practices, the refusal to bargain itself, except for a few preliminary meetings, erodes the status of the Unions and discourages union membership. Franks Bros. Co. v. NLRB, 321 U.S. 702, 704, 64 S.Ct. 817, 88 L.Ed. 1020 (1944).

We agree that there is an interest in and policy in support of the principle that employees should have a freedom in selecting or rejecting bargaining representatives. However, as Brooks recognized, there is a competing interest in providing stability for bargaining relationships which have been lawfully established. While the procedures giving rise to recognition here were not clothed in the solemnities of an election, there is nothing suspect in the agreements which were freely chosen by the parties who voluntarily rejected the formal election proceedings. It is within the Board’s discretion to determine that the status thus created is entitled to some reasonable period of gestation rather than the abortion proposed. The Board has here been charged with the responsibility of accomplishing the purposes of the National Labor Relations Act and the determination to proceed by ordering bargaining for a reasonable time as well as determining what a reasonable time should be, is properly a decision for the Board and judicial intervention is not appropriate. See NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); cf. Brooks v. NLRB, 348 U.S. 96, 103, 75 S.Ct. 176, 99 L.Ed. 125 (1954).

The order of the Board will be enforced.

      . The thirteen member unit consisted of all employees at Cayuga’s Portland Point plant, except clerks, guards and supervisors.

      . Cayuga which initially raised jurisdictional questions with respect to the appropriate determination of the time interval for measuring its annual interstate sales (i. e., most recent calendar year versus 12 months immediately preceding the hearing), has withdrawn its objection and concedes jurisdiction. See NLRB v. George J. Roberts & Sons, Inc., 451 F.2d 941, 944 (2d Cir. 1971).

      . See NLRB v. Frick Co., 423 F.2d 1327 (3d Cir. 1970); NLRB v. San Clemente Publishing Corp., 408 F.2d 367 (9th Cir. 1969); NLRB v. Montgomery Ward & Co., 399 F.2d 409 (7th Cir. 1968); NLRB v. Universal Gear Serv. Corp., 394 F.2d 396 (6th Cir. 1968).

      . In NLRB v. Gissel Packing Co., 395 U.S. 575, 591, 89 S.Ct. 1918, 1928 (1969) the Court noted the Board’s abandonment of the Joy Silk doctrine (Joy Silk Mills, Inc., 85 N.L.R.B. 1263 (1949), enforced, 185 E.2d 732, 87 U.S.App.D.C. 360 (1950)) and sanctioned the new Board policy:
      When confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, an employer need not grant recognition immediately, but may, unless he has knowledge independently of the cards that the union has a majority, decline the union’s request and insist on an election, either by requesting the union to file an election petition or by filing such a petition himself under § 9(c)(1)(B).

      . We note that this rule appears to be in accord with a general Board policy of protecting validity established bargaining relationships during their embryonic stages. See, e. g., Montgomery Ward, 62 L.R.R.M. 1642 (1966); Keller Plastics Eastern, Inc., 157 N.L.R.B. 583 (1966).