author: SEITZ, Chief Judge.

text:
    UNITED STATES of America v. Norman F. LeFEVRE, Appellant.
    No. 73-1093.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) June 5, 1973.
    Decided July 16, 1973.

      Hector R. Uribe, El Paso, Tex., for appellant.
    Ralph F. Keil, U. S. Atty., Bruce L. Thall, Asst. U. S. Atty., Wilmington, Del., for appellee.
   OPINION OF THE COURT

SEITZ, Chief Judge.

The defendant was convicted by a jury on seven counts of willfully preparing false and fraudulent income tax returns. 26 U.S.C. § 7206(2) (1970). The district court denied his motion for a mistrial made at the close of the summation and his subsequent motion for acquittal or a new trial; both motions were based on the ground that the closing arguments of the Assistant United States Attorney were improper and prejudicial. The defendant appeals the denial of these motions.

We have examined the entire trial record and find that the evidence of guilt is so overwhelming that we can say with confidence that the errors hereinafter delineated do not constitute reversible error; indeed, we believe them harmless beyond a reasonable doubt. Nevertheless, we must consider such errors because of their recurrence in criminal trials and the consequent importance of emphasizing the impropriety of such practices by prosecuting officers.

We reiterate what this Circuit has emphasized:

A United States attorney in a criminal case has an even greater responsibility than counsel for an individual client. For the purpose of the individual case he represents the great authority of the United States and he must exercise that responsibility with the circumspection and dignity the occasion calls for.

United States v. Kravitz, 281 F.2d 581, 587 (3d Cir. 1960), cert. denied, 364 U.S. 941, 81 S.Ct. 459, 5 L.Ed.2d 372 (1961); accord, United States v. American Radiator & Std. San. Corp., 433 F.2d 174, 191 (3d Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 929, 28 L.Ed.2d 231 (1971). See ABA Code of Professional Responsibility, EC 7-13 (Final Draft, 1969) (hereinafter cited as “ABA Code”) and ABA Standards Relating to The Prosecution Function and The Defense Function, Standard 1.1(c) and Commentary (Approved Draft, 1971) (hereinafter cited as “ABA Prosecution Standards”). Against this background we consider the allegedly improper and prejudicial closing arguments of the prosecutor, which fall into two categories: (1) the prosecutor’s expressions of his personal opinion as to the defendant’s credibility and as to the defendant’s guilt, and (2) the prosecutor’s statements based on facts not in evidence.

Prosecutor’s Expressions of Personal Opinion as to Credibility and Guilt.

During his summation, the Assistant United States Attorney repeatedly expressed his personal opinion as to the credibility of the defendant. Additionally, some of his remarks could have been construed by the jury as expressing a personal opinion as to the guilt of the defendant. In its opinion denying defendant’s motions, the district court stated: “[T]his sort of remark is frequently made by counsel in summation.” We do not read the quoted language as necessarily implying approval of the practice, particularly since the judge apparently considered the comments relevant only to defendant’s credibility. However, to remove any doubt as to its impropriety, we adopt Standard 5.8(b) of the ABA Prosecution Standards:

It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence of the guilt of the defendant.

See ABA Prosecution Standards, Commentary to Standard 5.8(b). Further, such expressions are in violation of the ABA Code of Professional Responsibility. ABA Code DR 7-106(C) (4) and EC 7-24.

As we stated in United States v. Schartner, 426 F.2d 470, 477 (3d Cir. 1970):

[A]lthough we cannot condone prose-cutorial expression of personal belief in an accused’s guilt, such expression is not reversible error when the remarks fairly construed refer only to belief based on the evidence and not to an opinion formed from facts not in evidence.

Accord, United States v. Meisch, 370 F. 2d 768, 773 (3d Cir. 1966). Thus, both our previous decisions and the ABA Standard, which we now formally adopt, condemn such prosecutorial comments, even if based on the evidence. However, such comments, if based on the evidence, are not reversible errors per se under Schartner.

It is clear here that the comments of personal opinion by the prosecutor in his closing statement were based on the evidence. We recognize the line between permissible and impermissible comment is a thin one, and precision of expression can be difficult. Nevertheless, we strongly disapprove expressions of personal opinion by prosecutors on credibility and guilt. However, we do not find those here sufficiently prejudicial, in light of the overwhelming evidence against defendant, to constitute reversible error.

Prosecutor’s References to Non-Record Matters

In addition to interjecting personal opinion into his summation, the prosecutor also made comments based on facts outside of the record. The district court referred to only one instance of such misconduct — the prosecutor’s statement of his own experience concerning the effects of a drug which defendant testified he had used. However, we think there were actually three such instances. The district court noted that it was the prosecutor’s first trial, that it lasted seven days, and that the court instructed the jury to consider only the evidence. In these circumstances, the district court did not consider the error sufficient to warrant a new trial.

As to the impropriety of such prosecutorial statements, we find the view of Standard 5.9 of the ABA Prosecution Standards compelling and therefore adopt it. The Standard states:

It is unprofessional conduct for the prosecutor intentionally to refer to or argue on the basis of facts outside the record whether at trial or on appeal, unless such facts are matters of common knowledge based on ordinary human experience or matters of which the court may take judicial notice.

Since we find that none of the improper statements were within the exception established under the Standard, further inquiry is required as to whether they warrant reversal of defendant’s conviction.

We do not believe that prosecutorial statements which refer to facts not in evidence constitute reversible error per se. Rather, the court is under an obligation in such instances to consider the entire record to determine whether the errors were sufficiently prejudicial to have tipped the scales and thereby denied defendant a fair trial. We have examined the record in the instant case; our examination discloses that the evidence of defendant’s guilt was overwhelming. Consequently, on this record, we cannot say the prosecutor’s deviations were sufficiently egregious to justify this court in ordering a new trial.

We do emphasize that the trial judge should be alert to each of these deviations from professional norms. Since such comments have the clear potential of adversely affecting the defendant’s right to a fair trial, the judge should take prompt action to correct them without relying upon defense counsel to object. The court should then take such corrective action, either in or out of the presence of the jury, as seems most appropriate in each individual instance.

The judgment of the district court will be affirmed.

      . We note that Schartner dealt solely with personal expressions of guilt in regard to reference to matters not in evidence.


source: Caselaw Access Project

author: HAYS, Circuit Judge:

license: Public Domain

text:
    James M. MORRISSEY et al., Plaintiffs-Appellants-Appellees, v. Joseph CURRAN et al., Defendants-Appellees-Appellants, Martin Segal and Leon Karchmer, Defendants-Appellees.
    Nos. 689, 1089-1091, Docket 72-2443, 73-1082, 73-1363 and 73-1383.
    United States Court of Appeals, Second Circuit.
    Argued April 11, 1973.
    Decided June 18, 1973.
    Certiorari Denied Jan. 7, 1974.
    See 94 S.Ct., 865.

      Arthur E. Mclnerney, New York City (Duer & Taylor, New York City, on the brief), for plaintiff s-appellants-appel-lees.
    Joseph P. Altier, New York City (Ira Gammerman, Bromsen, Gammerman, Al-tier & Wayne, New York City, on the brief), for defendants-appellees-appel-lants Joseph Curran and Shannon Wall.
    Simon H. Rifkind, New York City (Neil H. Cogan, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on the brief), for defendant-appellee-appel-lant Abraham E. Freedman.
    Arthur S. Olick, New York City (Kreindler, Relkin, Olick & Goldberg, New York City, on the brief), for defendant-appellee-appellant William Perry.
    Roy L. Reardon, New York City (Melvyn L. Cantor, Ronald L. Ginns, Simpson, Thacher & Bartlett, New York City, on the .brief), for defendant-appel-lee Martin Segal.
    Herman E. Cooper, New York City (Surrey, Karasik, Morse & Seham, New York City, on the brief), for defendant-appellee Leon Karchmer.
    Before SMITH, HAYS and TIMBERS, Circuit Judges.
   HAYS, Circuit Judge:

This action was brought under the provisions of Section 501 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 501 by plaintiffs as members of the National Maritime Union of America. Defendants Curran and Wall were the President and Secretary-Treasurer of the NMU. Defendants Karchmer, Segal and Freedman were trustees of the NMU Officers’ Pension Plan. Defendant Perry is the former Assistant to the President of the NMU.

In the original complaint plaintiffs asked for several forms of relief:

(a) an accounting of monies expended by the NMU and the trustees of the NMU Officers’ Pension Plan for pension benefits on behalf of non-elected officers and employees of the Union; (b) damages from certain of the defendants; (c) an injunction against the trustees to restrain them from paying any pension benefits to non-elected officers and employees of the Union; and (d) an award of counsel fees.

The origin of the dispute is to be found in a trust agreement executed in 1952 by the National Council of the NMU pursuant to its authority to provide pensions for its officers and employees. Originally, the trust agreement provided for pensions only for officers, and in 1953, the trustees under the agreement adopted a pension plan for the officers of the NMU. The funds of the trust came from an initial contribution from the Union supplemented by quarterly installments.

In 1961 the trust was amended to include in the pension plan certain employees of the Union. The Union contributed additional funds to cover the cost of the expanded pension plan.

In 1964 the pension plan was again altered to include some full time employees of the Union not previously covered.

In this action, originally brought in 1969, plaintiffs charged that the 1961 and 1964 amendments to the trust agreement including non-elected employees in the pension plan were void because they were adopted on behalf of the NMU by the National Office rather than the National Council. The district court granted plaintiffs’ cross-motion for summary judgment, holding that the inclusion of certain non-officer employees of the NMU Officers’ Pension Plan was improper. The district court ordered the defendants to account, enjoined the trustees from paying pension benefits to non-officers, and directed the trustees to return to the Union all moneys received by them for the benefit of non-officers.

This court affirmed the decision of the district court, Morrissey v. Curran, 423 F.2d 393 (2d Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 52, 27 L.Ed.2d 56 (1970) and remanded the case to insure that the accounting and the return of funds to the Union treasury proceed as ordered. The Supreme Court denied cer-tiorari.

On remand, the district court entered judgment against the trust fund and in favor of the Union in the sum of $520,283.39, the amount of contributions made to the plan on behalf of the employees who were held to be ineligible. Although the district court found that the trustees had made unlawful pension payments to employees in the amount of $371,271 it held that except with respect to the payments made to Perry, none of the defendants could be surcharged. As to Perry it held that Freedman, one of the trustees of the pension plan, was personally liable for the payments.

Plaintiffs contend that the judgment of the district court is inadequate because it does not include moneys paid on account of the NMU officers who were appointed rather than elected. Plaintiffs also claim that the trustees should have been surcharged for payments made by them to Irving Brauch, a non-officer employee, that defendants Cur-ran and Wall should have been surcharged for the payments to Perry, that defendants Karchmer and Segal should have been surcharged for the payments to Perry, and that the award of fees to their attorneys and accountants was inadequate. Defendants Curran and Wall appeal on the grounds that the award to plaintiffs’ attorneys and accountants was excessive. Defendant Freedman appeals on the grounds that he should not have been surcharged with respect to payments to Perry.

I.

The first issue raised by plaintiffs is whether the district court correctly ruled that agents, field patrolmen and patrolmen, who were appointed, not elected officers of the NMU, were entitled to pensions under the Officers’ Pension Plan. As the district court found, eligibility for payments under the pension plan depended not on whether the persons in question were elected or non-elected.but on whether they were officers or only employees. Under the NMU constitution patrolmen, field patrolmen and agents were clearly designated as officers, though by virtue of amendments to the constitution some of these officers were at some times appointed rather than elected.

The plaintiffs contend that on the prior appeal this court interpreted the NMU constitution to deny coverage to non-elected officers. That issue was not before us on the previous appeal and we did not decide it one way or the other. There is nothing in our prior opinion which prevents our accepting the ruling of the district court which seems to us to be correct.

II.

The district court held that none of the three trustees was liable for the payments to Brauch, and that Segal and Karchmer could not be surcharged for the payments to Perry, but that Freedman should be so surcharged.

A. Surcharge of Karchmer and Segal

The district court correctly held that the exculpatory provisions of the 1952 Trust Agreement exonerated the trustees except for wilful misconduct and that Karchmer and Segal were not involved in any wilful misconduct in their actions concerning these payments.

The 1952 Trust Agreement provided, in relevant part:

“4. The Trustee shall not be liable for the making, retention, or sale of any investment or reinvestment as made by them, as herein provided, nor for any loss to, or diminution of the Fund, except due to their own wilful misconduct.
“5. The Trustees shall be protected in acting upon any paper or document believed by them to be genuine and to have been made, executed, or delivered by the proper party purporting to have made, executed or delivered the same, and shall be protected in relying and acting upon the opinion of legal counsel (including opinion of legal counsel who is or may be a trustee hereunder) in connection with any matter pertaining to the administration or execution of this Trust Fund. No Trustee shall be liable for any action taken or omitted by him unless such act or omission is the - result of wilful misconduct, nor for the acts of any agent, employee, or attorney selected by the Trustees with reasonable care, nor for any act or omission of any other Trustee.” (Emphasis added.)

The plaintiffs, arguing that the amendments to the trust agreement “in effect creat[ed] new trusts . . . ”, contend that the effective date of the trust agreement was not 1952, but October 28, 1961 and September 28, 1964, the dates of the amendments. This point has significance because between 1952 and 1961 Section 501(a) of the LMRDA became law. That section reads:

“A general exculpatory provision in the constitution and bylaws of such a labor organization or a general exculpatory resolution of a governing body purporting to relieve any such person of liability for breach of the duties declared by this section shall be void as against public policy.”

Thus, according to plaintiffs, Section 501(a) invalidates the trustee exculpatory clause, at least as it applies in this case.

There is no reason to treat the amendments of 1961 and 1964 as anything other than they purported to be — that is amendments to the basic agreement which otherwise remained in full force and effect. The amendments made no change whatsoever in the original agreement as far as the exculpatory clause of that agreement is concerned.

Moreover, even if the effective date of the agreement were held to be subsequent to the enactment of Section 501(a), the plaintiffs could not prevail. The ban of Section 501(a) against all

“general exculpatory provisions by a labor organization in its constitution, bylaws or resolutions” does not apply to a standard trustee exculpatory clause of a trust agreement. Neither the express language, the legislative history of the section or the purpose of the section indicate the desire of Congress to include trustee exculpatory provisions within the general ban on exculpatory provisions. The language of the section is clearly aimed at union officers, not trustees; nor can a trust be equated with “a labor organization.” The purpose of Congress in enacting Section 501(a) supports this literal interpretation of the provision. The section was aimed at stopping the pilfering of union funds by union officers, not at the conduct of trustees acting in their capacity as fiduciaries.

B. Surcharge of Freedman

The district court found that Freedman showed a “reckless indifference” to his duty as a trustee and therefore should be surcharged for the lump sum pension paid to Perry. The facts as shown in the record amply support this finding.

Freedman’s opinion letter of January 16, 1969, stated that Perry was “entitled to credit for covered employment for the period through October 20, 1974 based on his contract with NMU, pursuant to which ‘contributions have been made by the Union to the Plan for the period through October 20, 1974,’ and that Perry was ‘entitled to receive ' immediate payment.’ ” Morrissey v. Curran, 351 F.Supp. 775, 783 (1972). As the district court noted, “This was wrong, on both counts.” In the first place, prepayment of contributions is not authorized by the trust agreement, which contains the only provision authorizing payments to the fund. Second, there was absolutely no basis for Freedman’s conclusion that the payment of the lump sum to Perry could be made immediately. It is entirely clear “that the pension was payable on October 20, 1974, and then only if the trustees at that time exercised their discretion under Article V, Section 8 to pay Perry a lump sum.”

These are not complex legal questions on which reasonable men could disagree. Freedman’s 1969 legal opinion constituted gross error and warranted the conclusion of the district court that he had acted in reckless disregard of his duty as a trustee.

III.

A. Liability of Curran and Wall for payments to the Pension Fund

The evidence in the record shows that Curran and Wall acted in good faith, relying on the advice of the Union’s general counsel. In a matter such as this in which the issue is reasonably open to legal dispute an officer acting in good faith is justified in relying on counsel and is not liable, if he so acts, for breach of trust.

B. Payments by the Pension Fund

The district court said there “is no evidence that on January 16th Curran directed the payment to Perry of $222,200 or directed Freedman to furnish the legal opinion to the trustees. Consequently, on the evidence presented, plaintiffs have failed to prove that Curran breached his fiduciary duty under LMRDA.” Morrissey v. Curran, supra, at 785.

Plaintiffs now argue that Cur-ran dominated the trustees and it was through this power that the payment to Perry was made. This is properly a factual question for the district court which ruled on the basis of all the evidence presented that the plaintiffs failed to prove their contention. There is no reason for believing that the ruling of the district court on this question was clearly erroneous.

The district court held that the evidence established that Wall played no part in the events of January 16th, and the payment to Perry. There is nothing in the record to indicate that that ruling is incorrect.

C. Liability of Curran and Wall for payments to Shapiro as trustee

Plaintiffs contend that Curran and Wall are liable for any payments made to Shapiro as trustee. In February, 1972, after the ruling of this court, the Union deposited $460,363 in a bank account under Union control. This money was part of the funds paid by the trustees to the NMU to comply with the court order. The Union estimated that this was the amount necessary to fund the pensions for current employees. A trust agreement was drawn up, and Shapiro was named as trustee. Plaintiffs now attack this action.

Plaintiffs’ contentions fail for several reasons. First, the Union never paid the money to Shapiro; the trust agreement was never executed. Even if the money had been paid, the proposed pension plan for current employees was for future payments. Consequently, the establish.ment of the fund was permissible and not prohibited by this court’s prior decision.

On rehearing:

D. Jurisdiction with respect to claim against Perry

We hold that the district court was correct in finding that it had jurisdiction to enter and in entering a personal judgment against William Perry and in favor of the Pension Plan in the amount of $263,307.00.

In all other respects we adhere to our original decision.

IV.

The district court awarded counsel fees, accountants’ fees and expenses to plaintiffs in the amount of $111,864.-00, and directed that this amount be paid out of the judgment recovered by the Union. This is the correct approach; the Union, not the pension fund should shoulder these costs. The fees requested are adequate but not excessive.

Affirmed.

      . The 1961 amendment broadened the coverage of the pension fund to include the following categories of persons :
      1) “Union Representatives,” defined as persons employed in- the positions of Assistant to the President and Organizer; and 2) “Supervisory or Professional” employees of the Union occupying the positions of Maintenance Supervisor, Bookkeeping Supervisor, Records and Supply Supervisor, Executive Secretary, Publicity Director and Editor of the “Pilot.”

      . Under the 1964 amendment, the coverage was broadened to include:
      “All other employees of the union except (a) any employee whose compensation, hours of work or conditions of employment are determined by or with reference to a collective bargaining agreement, (b) any employee whose customary employment by the union is for not more than twenty (20) hours in any one week or for not more than five (5) months in any one calendar year, and (c) aliens employed in a foreign country.”

      . The district court had held effective an attempt by the Union to validate retroactively the pension amendments. This court reversed that aspect of the district court’s determination.


author: BARRETT, Circuit Judge.

text:
    Mrs. Concha LOPEZ et al., Plaintiffs-Appellees, v. Roger LUGINBILL, Superintendent, et al., Defendants-Appellants.
    No. 73-1052.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted July 12,1973.
    Decided Aug 27, 1973.

      Richard C. Bosson, Albuquerque, N. M., for appellees.
    John W. Bassett, Roswell, N. M., for appellants, Luginbill, Maxwell, Harris, Mitchem, Pirtle, Pritchard and Patterson.
    C. Emery Cuddy, Jr., Santa Fe, N. M., for appellants DeLayo and Harvey.
    Before BREITENSTEIN, Mc-WILLIAMS and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

This appeal is from a judgment awarding the appellees declaratory and injunctive relief pursuant to 45 CFR 116.17(o)(2)(ii). The Court ordered the appellants to release a list of the names of parents of children receiving Title I educational benefits under 20 U. S.C.A. § 241 et seq. to the appellees. The Court held that 45 CFR 116.-17(o)(2)(ii) required the release of the information requested by the plaintiffs-appellees pursuant to HEW’s interpretation of the regulation contained in letters by.its Director of the Division of Compensatory Education.

The appellees are four of twenty-four members of the Parents Advisory Council of the Title I project for the Roswell Independent School District who served during the 1971-72 school year. The appellants are employees of the Department of Education of New Mexico and the Roswell Independent School District, including members of the District’s Board of Education.

Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C.A. § 241 et seq. was initiated by Congress to inject large sums of federal money into the nation’s impoverished schools to meet the needs of “educationally deprived children” through certain programs which provide for clothing, special education, equipment, transportation, etc. The program is administered by HEW. The Commissioner of Education, HEW, promulgated certain regulations to implement the statutes enacted by Congress, including regulations relating to a Parents Advisory Council (PAC), of which the appellees were members. 45 CFR 116.17(o). The function of the PAC is to submit recommendations to the local educational agency dealing with the needs of the “educationally deprived children.” 45 CFR 116.17(o)(2) (iv). The PAC serves as a conduit to convey information about Title I to the parents of educationally deprived children and in turn convey the parents’ ideas back to school authorities.

The appellees alleged that for effective involvement of the PAC, the members needed the names of the parents of educationally deprived children from the appellants, with the exception of those parents who had directed that their names not be disclosed. The appellants refused to release the names on these terms, but proposed alternatively that the parents of Title I children be notified that they could send a postcard identifying themselves to their PAC representative. The appellants contend that the blanket release of the parents’ names would identify the children who are educationally deprived, cause embarrassment to the children and parents, result in possible harassment of the parents and children, and undermine the District’s policy of confidentiality relating to student and family records. The appellees claim authority for the release of the names stemming from HEW’s regulation which states in part as follows:

. and that such other information as may be needed for the effective involvement of the council in the planning, development, operation, and evaluation of projects under said title I (including prior applications for title I projects and evaluations thereof) will also be made available to the council; ... 45 CFR 116.17(o) (2) (ii).

At a PAC meeting on January 20, 1972 the four appellees presented a list of thirteen demands to the PAC, including the release of the names of Title I parents. All members of the PAC, with the exception of the appellees, opposed the release of the names as demanded by ap-pellees. The vote was, accordingly, 20 to 4.

In. February of 1972 the appellees filed an Administrative Complaint with the Commissioner of Education of HEW, making the same 13 demands. An investigation followed after which Mr. Fairley, Director of the Division of Compensatory Education, HEW, wrote to the appellants advising them that, based upon the findings of the investigation, the appellants must release to the PAC all names of Title I parents except those parents who had specifically requested that their names be withheld. The appellants replied that they would not comply with the requirements in Fairley’s letters. They proceeded with the District’s approved 1972-73 plan for parental involvement. The appellants simultaneously demanded a hearing, but neither was a hearing held, nor was any action taken by the Commissioner of Education of HEW. At trial, Mr. Jerry Brader of the Office of Education of HEW, testified that Fairley’s letters and affidavit stated the position of the Office of Education with regard to the HEW regulation. We observe that this testimony, assuming the truth thereof, does not constitute the statutory action completed to be taken only by th'e Commissioner of Education in approving or disapproving a State application, or in requiring substantial State compliance with the needs of educationally deprived children in accordance with Title I.

The trial court held that HEW had interpreted its regulation via Mr. Fairley’s letters and that his interpretation was binding on the appellants. The Court further held that the appellants must release the names of parents of children participating in Title I programs in the District, except the names of parents who had specifically requested that their names remain confidential.

The appellants contend that: (1) the trial court had no jurisdiction over the controversy; and (2) until HEW affords them a hearing with attendant opportunity for judicial review, their own plan is binding.

' We agree with the appellants’ contention that the trial court had no jurisdiction over the parties or subject matter of this action.

The appellees contend that they have established a cause of action under the Civil Rights Act, 42 U.S.C.A. § 1983 which reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

They argue that they have shown a violation of the “and laws” portion of § 1983 in that the HEW regulation has the force of law. We hold that the ap-pellees have failed to state a cause of action under § 1983. They have failed to establish any deprivation personal to them of any right, privilege or immunity secured by the Constitution and laws of the United States.

The appellees further argue that a basis for jurisdiction lies with 28 U. S.C.A. §§ 1343(3), (4), or 1331. 28 U.S.C.A. § 1343(3) states that:

The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;

Under this statutory proviso the appellees have failed to show, pursuant to Title I, that they have been deprived of a right created by an Act of Congress providing for equal rights, or one providing for the protection of their civil rights. See Flemming v. Adams, 377 F.2d 975 (10th Cir. 1967), cert. denied 389 U.S. 898, 88 S.Ct. 219, 19 L.Ed.2d 216 (1967); McCall v. Shapiro, 416 F.2d 246 (2nd Cir. 1969). The same rationale applies to 28 U.S.C.A. § 1343(4) which provides that:

The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.

The appellees are not suing to enforce a right of their personal liberty requisite for jurisdiction under 28 U.S.C.A. § 1343(3) or (4). Hague, Mayor v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Tichon v. Harder, 438 F.2d 1396 (2nd Cir. 1971). The denial.of the names was not a deprivation of a right, privilege, or immunity guaranteed by the federal Constitution or statutes and not a violation of a civil right entitled to protection. Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). “The Civil Rights Act cannot be used as a jurisdictional subterfuge for traditional lawsuits.” Sanders v. Independent School District No. S-2, of Kiowa County, Oklahoma, 459 F.2d 51, 52 (10th Cir. 1972).

The appellees also contend that 28 U.S.C.A. § 1331(a) confers jurisdiction'in the federal district courts to entertain civil actions:

. wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.

The appellees have utterly failed to establish the jurisdictional amount of $10,000; they introduced no evidence in support thereof.

The appellees allege that Euresti v. Stenner, 458 F.2d 1115 (10th Cir. 1972), controls here and supports their alleged right of an implied cause of action under Title I. We hold, however, that Eu-resti is distinguishable. In that case the federal regulations required that services be rendered to those unable to pay as a condition precedent to receipt of federal Hill-Burton funds. In our case the education facilities have been furnished and the complaint goes only to administration. HEW has been made aware of the State’s conditions and the Commissioner has taken no adverse action.

In the ease at bar, assuming arguendo that the Commissioner of Education, HEW, should conduct a hearing and find that the State must supply the PAC with the names of all Title I parents just as interpreted by Mr. Fairley, and assuming further that the State should appeal that decision to the Circuit Court which in turn would support the position of the Commissioner, nothing in the Act provides any remedy except that of withholding any further Title I funds from the State until and unless it complies. The remedy is, in effect, a condition subsequent. We know of no authority which would support a mandamus order requiring the State officials to comply with the Commissioner’s decision and to receive the federal funds.

The appellees have stated no cause of action arising from Title I or HEW’s regulations. Congress did not intend to imply a civil remedy available to PAC members under the Title I statutory scheme. No compelling federal interest exists dictating that this court should exercise jurisdiction. Chavez v. Fresh-pict Foods, Inc., 456 F.2d 890 (10th Cir. 1972), cert. denied 409 U.S. 1042, 93 S.Ct. 535, 34 L.Ed.2d 492 (1972). The appellants may appeal from any determination of the Commissioner, if and when made, that they have failed to substantially comply with the provisions of Title I, following hearing, directly to the Circuit Court within their geographical jurisdiction. 20 U.S.C.A. §§ 241e(a)(1), (c), 241f, 241j and 241k.

The judgment of the district court is reversed and the case is remanded with directions to vacate the judgment and to dismiss the action.


author: GODBOLD, Circuit Judge:

text:
    Boyd PETERS et al., Plaintiffs-Appellees, v. MISSOURI-PACIFIC RAILROAD COMPANY, Defendant-Third Party Plaintiff-Appellant, v. UNITED TRANSPORTATION UNION, Third Party Defendant.
    No. 71-3566.
    United States Court of Appeals, Fifth Circuit.
    April 10, 1973.
    As Modified on Denial of Rehearing and Rehearing En Banc June 27,1973.
    Certiorari Denied Nov. 5, 1973.
    See 94 S.Ct. 356.

      Tracy Crawford, Tyler, Tex., James P. Simpson, Dallas, Tex., for plaintiff-appellant.
    Franklin Jones, Jr., Carl Roth, Marshall, Tex., for plaintiffs-appellees.
    John de J. Pemberton, Jr., Acting Gen. Counsel, Margaret S. Rogers E.E. O.C., Washington, D. C., for amicus curiae.
    William S. Reeves, Tyler, Tex., for other interested parties.
    Before WISDOM, THORNBERRY and GODBOLD, Circuit Judges.
   GODBOLD, Circuit Judge:

This ease presents the question of whether the defendant MissoúriPacific Railroad violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. A. § 2000e-2(a) (1970), by entering into and enforcing a collective bargaining agreement providing for retirement at age 65 for firemen on its DeQuincy Division, all of whom were black. The agreement was made with International Association of Railway Employees (IARE), the union representing the firemen on the DeQuincy Division. The entire membership of IARE Local Lodge 3 was composed of the DeQuincy Division firemen. When the agreement ’in question was made substantially all firemen on the Railroad’s other divisions were white. The white firemen were represented by unions other than IARE and, except for the firemen on one division, were subject to separate collective bargaining contracts setting compulsory retirement at age 70.2 The retirement provision for black firemen was signed June 26, 1964, prior to passage of the Civil Rights Act of 1964, but by agreement did not become effective until December 31, 1966, subsequent to the Act’s effective date, July 2, 1965.

Plaintiffs are six black members of Local 3 formerly employed as firemen by the Missouri-Pacific on the DeQuincy Division. Pursuant to the 1964 agreement, and because they were over 65, five of them were retired on January 4, 1967 and the sixth on October 5, 1968. Upon retirement they began receiving pensions smaller than their wages would have been had they continued working. The plaintiffs sued under 42 U.S.C.A. § 2000e-5(e) and (f) (1970) alleging that the Railroad had discriminated against them by forcing their retirement solely because of their race, in violation of 42 U.S.C.A. § 2000e-2(a). The Railroad answered and brought a third party complaint against BLF&E, the then bargaining representative of the DeQuincy firemen, and four local union officials who were sued as representatives of the “class of persons holding seniority as Locomotive Firemen” on the DeQuincy Division. The court granted the Railroad’s motion to maintain the third party action against this class, „ and notice was given to the Railroad’s employees constituting the class.

Sitting without a jury, the District Court found that the earlier retirement age for the black firemen violated 42 U. S.C.A. § 2000e-2(a) (1970) because their white counterparts, under separate agreements, were permitted to continue working to age 70. The court awarded all plaintiffs back wages for the time they could have worked but for the age 65 retirement agreement, ordered reinstatement for two plaintiffs not then age 70, and awarded attorney fees to plaintiffs’ counsel. The Railroad appeals. We affirm.

I. The history.

The record fully supports the findings of the District Court that prior to 1964 the Railroad classified, separated and segregated its employees on the basis of race, and that this resulted in the racial composition of Local 3 of IARE. Black and white firemen worked in different geographical areas and, as we have pointed out, were represented by different unions. Black firemen received inferior rates of pay and fringe benefits and worked longer hours than their white counterparts. The Railroad employed only blacks to work as firemen on the DeQuincy Division and only whites as firemen elsewhere.

In 1956, shortly after Missouri-Pacific took over the small lines and their black firemen, the Railroad received a request from H. W. Simpson, Chairman of IARE Local 3, asking that firemen on the DeQuincy Division be mandatorily retired at age 70. Prior to that time there had been no mandatory retirement age for any of the Railroad’s firemen. According to oral testimony given at trial, Simpson had been elected as the candidate of younger firemen, displacing a chairman who favored the older men. The written request made by Simpson to the Railroad included these stated reasons:

[S]uch an agreement would be an asset to the Carriers economically, and would increase the efficiency and safety in the performance of duties. It would give some of the twenty-five furloughed firemen a chance to work. There are some men with more than twelve years of service who have not worked in years. Young men with families have no hope of entering the service unless some form of compulsory retirement is agreed upon. We have firemen who are over seventy years of age hardly physically fit to remain in the service.

President Whitaker of IARE testified that Chairman Simpson had reasoned that, although older firemen would be put out of work by mandatory retirement, they would still draw pensions, whereas the younger nonworking firemen, who had exhausted their unemployment benefits, were presently without means of support. The Railroad agreed to Local 3’s 1956 request.

White firemen first became subject to compulsory retirement in 1959, when an agreement was negotiated with unions representing some of them providing for retirement at 70. In 1963 most of the remaining whites became subject to mandatory retirement at 70.

In 1958 IARE, by letter, suggested to the Railroad that the mandatory retirement age for the blacks be reduced to 65. But in 1959 most of the railroads in the country served notice on most of the railroad unions under Section 6 of the Railway Labor Act that they wanted to change collective bargaining agreements so as to, in effect, eliminate all firemen on diesel locomotives. The IARE’s age 65 request lay dormant while most of the nation’s railroads and railroad unions fought over the status of firemen. This national dispute was finally settled in 1963 by Award 282 of a board of arbitration established by Congress. See Pub.L. No. 88-108, § 2, 77 Stat. 132 (Aug. 28, 1963). Award 282 allowed the participating railroads (1) to terminate firemen with less than two years seniority; (2) to terminate firemen with more than two years seniority whose average monthly earnings for the last two years had not exceeded $200; (3) to terminate firemen with more than two years seniority who had not worked in two years; and (4) to “blank”, i. e., leave open and unfilled, the jobs of firemen who retired after the effective date of the Award. Firemen who had 10 years seniority and whose average monthly earnings were in excess of $200 were protected by the Award.

The national dispute and Award 282 substantially altered the employment context of the Railroad’s firemen by protecting the employment status and opportunities of some but destroying the status and opportunities of others. The Award would materially reduce the labor requirements of the Railroad on its De-Quincy Division, but only after it succeeded in having the terms of Award 282 included in the collective bargaining agreement it had with IARE as representative of the black firemen on that Division. Thus, in May 1964, the Railroad proposed to IARE, as subjects of collective bargaining, the adaptation and application of the provisions of Award 282 to the black firemen of its DeQuincy Division and the reduction of the mandatory retirement age of the black firemen from 70 to 65. Discussion of these two subjects took place in separate meetings of the Railroad with President Whitaker of IARE and with Chairman Simpson and Committeeman Stewart of Local 3.

Pursuant to an understanding reached at these meetings, the Railroad prepared two written agreements, one applying the terms of Award 282 to the black firemen and the other providing for their mandatory retirement at age 65, and sent them for execution to IARE, the certified bargaining representative. President Whitaker signed both on June 19, 1964, and, according to IARE’s intraunion agreement with Local 3, sent them to Chairman Simpson. Simpson and Local Committeeman Miller added their signatures on June 22, 1964, and returned the agreements by mail to the Railroad, which received them June 25, 1964. The Railroad’s director of labor relations executed the agreements for the Railroad on June 26, and inserted that date in the blank spaces provided for execution dates. By its terms the agreement regarding Award 282 became effective retroactively on June 1, 1964, but the effective date of the age 65 agreement was delayed by its terms until December 31,1966.

Award 282 affected equally the Railroad’s black and white firemen who fell into these groups: those with less than two years seniority, those who had earned less than $4800 for the last two years, and those who had not worked at all in two years. Nevertheless, the interaction of 282 with the age 65 retirement agreement, once the latter became effective, placed an additional burden upon the black firemen. When the older black firemen were forced to retire, their jobs were “blanked” and no new blacks hired to replace them. This reduction in firemen’s jobs held by blacks was accomplished without a corresponding elimination of firemen’s jobs held by whites since white firemen, generally, were not forced to retire until age 70. Although blacks were being required to retire at age 65 on pensions, the court found that the black retirees were no less competent for firemen’s jobs than their white counterparts.

The mandatory retirement age for black firemen continued to be 65 until June 1969, after this suit was filed. At that time the Railroad and BLF&E, which by then had become bargaining representative for the black firemen as well as for some white firemen, agreed to raise the age to 70, the mandatory age for substantially all the Railroad’s white firemen.

II.

The District Court found that the Railroad had “discriminated against” the black firemen of its DeQuincy Division “because of their race” prior to the effective date of the Act (July 2, 1965) and that the age 65 retirement agreement, and the differential treatment it imposed on the black firemen by requiring that they retire five years earlier than white firemen, were “the result of the [Railroad’s pre-Act] discriminatory hiring policies.” The trial judge concluded that the retirement agreement (which was negotiated and executed pre-Act but became effective and was enforced against these plaintiffs post-Act) “adversely affected” plaintiffs’ status as employees and “discriminated against” them on the basis of their race. The court further concluded that the retirement agreement “carried forward into the present and the future effects of prior racially discriminatory employment practices of defendant.” The court held that the actions of the Railroad in entering into and enforcing the retirement agreement constituted an unlawful employment practice in violation of 42 U.S.C.A. § 2000e-2(a), and it granted judgment for plaintiffs.

The parties urge differing legal consequences to be drawn from the pre-Act history of the Railroad’s relationship with the black firemen of the DeQuincy Division. The plaintiffs seek to employ this history, and its nexus to the generic tradition of discrimination against blacks by the railroad industry, as a sword entitling them by its sole force to a judgment against this employer. The Railroad seeks to employ the same history, considered in the context of the requirements of the Railway Labor Act, as a shield insulating it from Title VII liability. In our view neither position is correct and neither reflects the careful analysis embodied in the determinations of the District Court.

The plaintiffs’ theory is essentially an argument that a showing of historical pre-Act racial discrimination alone establishes a per se violation of Title VII. We rejected that theory in United States v. Jacksonville Terminal Co., 451 F.2d 418, 450 (5th Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972). See also L. Sutter, Current Procedural and Evidentiary Consideration Under Title VII of the Civil Rights Act of 1964: Ready for the Defense, 6 Ga.L.Rev. 505, 516 (1972). In applying Title VII courts have not ended their factual examinations and legal analyses at the point where they find historical evidence of pre-Act, racially discriminatory treatment by the employer. Rather, recognizing that Title VII operates only prospectively, the courts have consistently gone further to scrutinize the etiology, as revealed by the evidence, of the present terms and conditions of employment alleged to violate Title VII. And where they have found a causal nexus between the past discrimination and the challenged present condition of employment, not justified by some “business necessity” which itself complies with Title VII, the courts have held that the present condition violates Title VII. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Local 189, United Papermakers, etc. v. United States, 416 F.2d 980 (5th Cir.), cert. denied, 397 U. S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970); United States v. Jacksonville Terminal Co., supra, and Rowe v. General Motors Corp., 457 F.2d 358 (5th Cir. 1972). Relief has then been granted even in the absence of a showing of present intent to discriminate and even in the presence of a showing of present good intent towards alleged discriminatees .

The Railroad’s theory, on the other hand, is that it is shielded from Title VII liability for this retirement agreement because the objectionable provisions were acceded to by it at the request of IARE. The underpinnings for its theory are these: (1) It is required by the Railway Labor Act (RLA) to bargain with the certified representative of its black firemen on proposals concerning conditions of employment. (2) The firemen’s bargaining representative has the statutory duty fairly to represent the black firemen for whom it bargains without discrimination because of their race. (3) The challenged age 65 retirement agreement is itself a product of collective bargaining, having been first proposed for bargaining by the plaintiffs’ bargaining representative (IARE) and finally agreed to by IARE and the officers of plaintiffs’ local. (4) The plaintiffs do not contend that the agreement and the actions of their representative and officers in proposing and assenting to it violated the requisites of the RLA’s duty of fair representation.

This theory too must be rejected. The age 65 agreement quite reasonably can be viewed as the product, in part, of intra union political resolution of competing economic interests of the older and younger black firemen in a declining job market and as the fruition of their bargaining representative’s good faith representation of the economic interests of the politically victorious younger firemen. But if the conditions which created the intraunion economic warfare underlying the age 65 agreement and which made necessary the intraunion choice between the competing economic interests of its members were themselves, in substantial part, effects of past racial discrimination by the employer, then the agreement violates Title VII as a present effect of prior employer racial discrimination. It is not shielded by the facts that it is the product of collective bargaining and meets the standards of fair representation imposed by the RLA and Steele.

In Taylor v. Armco Steel Corp. et al., 429 F.2d 498 (5th Cir. 1970), we were confronted with the dismissal of a complaint brought by black employees alleging that a collectively bargained seniority system being presently enforced by their union and their employer violated Title VII. We reversed and remanded. Eleven years earlier in Whitfield et al. v. United Steelworkers of America et al., 263 F.2d 546, cert. denied, 360 U.S. 902, 79 S.Ct. 1285, 3 L.Ed.2d 1254 (1959), we had given our blessings to the installation of this system at the Houston plant of Armco, resting our approval of the collectively bargained employment condition on the National Labor Relations Act and Steele. Attaching “particular importance to the good faith of the parties in working toward a fair solution,” we found that while the seniority agreement fell short of cleansing progression lines of past racial discrimination, “they have a contract that from now on is free from any discrimination based on race.” Yet in Armco, supra, Judge Wisdom, the spokesman for the court in Whitfield, recognized that while our Whitfield decision and the seniority agreement were “defensible” within the context of the NLRA and Steele, the seniority agreement still had to be tested under the requirements of Title VII and of the eases finding Title VII violations in the post-Aet continuation of the effects of pre-Act racial discrimination by employers.

The point which we made in Armco, and the grounds upon which we reject the Railroad’s argument here, are not new to Missouri-Pacific. In Norman v. Missouri-Pacific R., 414 F.2d 73 (8th Cir. 1969), one of the cases we relied upon in Armco, the Eighth Circuit held that a prior determination under the RLA upholding the terms and conditions of employment then being challenged under Title VII by black employees, did not prevent the employees’ complaint from stating a cause of action under Title VII against Missouri-Pacific. See also Tipler v. E. I. DuPont deNemours & Co., 443 F.2d 125 (6th Cir. 1971); Hutchings v. United States, 428 F.2d 303 (5th Cir. 1970); Robinson v. Lorillard Corp., 444 F.2d 791 (4 Cir. 1971), and Glus v. G. C. Murphy Corp., 329 F.Supp. 563 (W.D.Penn.1971).

Even if the Railroad’s intent in agreeing to and enforcing the challenged employment agreement was a racially neutral, or even benevolent, desire to discharge its legal duty to bargain with the plaintiffs’ representative and to enforce the contract entered into, such intent does not save the agreement from the terms of Title VII if it operates to “freeze” the status quo of prior discriminatory employment practices. In Griggs, supra,? the Supreme Court reshaped the statutory concept of discrimination in terms of consequence rather than motive, effect rather than purpose, to make clear that Title VII requires more of an employer who has discriminated in the past than present and future equal treatment of similarly situated employees regardless of their race. Under the mandate of Title VII, such an employer must scrutinize even the steps he now takes with neutral or benevolent motives to determine if they operate as “built-in headwinds” for minority groups and are unrelated to job performance. If they have that operative effect, they contravene Title VII.

We conclude, therefore, that the District Court correctly predicated judgment for plaintiffs on the legal theory that Title VII was violated if the age 65 agreement and its enforcement, irrespective of their collectively bargained origin, were shown to be the continued, present adverse effects of the Railroad’s pre-Act, racially discriminatory employment practices.

III.

The District Court did not plainly err in finding that the Railroad had in fact discriminated in the past and that the age 65 agreement adversely affected plaintiffs and was the present effect of the employer’s past discrimination. We emphasize the interplay of several factors supporting the court’s determinations.

Notwithstanding what the motives of IARE or Local 3 had been in initially proposing the age 65 plan for bargaining in 1958, the testimony of President Whitaker evidences that retirement at 65 was proposed and agreed to in 1964 in order to induce the Railroad to eliminate the long-standing differentials in pay and benefits which still existed between white and black firemen. Whitaker explained further why it was necessary in 1964 to use collective bargaining about age 65 retirement, rather than some other form of concerted action imposing less of a detriment to older IARE members, as a quid pro quo for the achievement of equality. The white employees of the Railroad and their white-dominated unions had consistently refused to support IARE threats to strike for equality in treatment. Since the black firemen had been geographically segregated by the Railroad, they belong to different bargaining units than the white firemen. Hence, the unions representing white firemen were not forced by the RLA and the Steele doctrine to fairly represent and support equally the interests of the blacks.

But Award 282, Whitaker testified, gave the black firemen and IARE the first intrinsic bargaining strength they ever enjoyed. Award 282’s terms would not become effective on the DeQuincy Division until its provisions had been adopted and included in -the collective bargaining agreement existing between the Railroad and IARE. Moreover, the Railroad would be able to materially reduce its labor requirements on the DeQuincy Division under Award 282 only through the retirement route, substantially all the black firemen there having more than 10 years in service and average monthly wages in excess of $200. The Railroad, then, needed the adoption of 282 and the earlier retirement of plaintiffs to achieve the relief from featherbedding potentially permitted under the Award. Retirement at age 65 and the “blanking” of jobs held by black firemen forced to retire at 65 became the price which the black firemen, younger and older, had to pay and the only “tender” they possessed (given their lack of other kinds of traditional bargaining strength) which they could offer in exchange for the equal pay and benefits that but for the past racial discrimination they would have already enjoyed. No such surrender was necessary for white firemen who, generally, were permitted to work to age 70. As the stipulated facts disclose, once the black firemen were represented by the same union representing white firemen and enjoyed the bargaining power which derived from the duty of fair representation imposed by the RLA on their new representative, the Railroad agreed to eliminate the age 65 agreement and to treat black firemen equally 'in terms of retirement age.

IV. Damages and attorney fees.

The Railroad claims that the back pay damages awarded plaintiff Placide duplicate in part damages previously awarded him for loss of wages in an earlier suit against the Railroad for personal injuries suffered on the job. The burden was upon the Railroad to establish its plea of estoppel by the prior state judgment. We are not able to say that the District Court erred in finding there was no double recovery.

There is no merit to the Railroad’s claim that attorney fees awarded to plaintiffs’ counsel were excessive.

The judgment of the District Court is affirmed.

      . “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; or
      (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

      . The white firemen were organized into many bargaining units and were represented by either the Brotherhood of Locomotive Firemen & Enginemen (BLF & E) or the Brotherhood of Locomotive Engineers (BLE), both of which maintained whites-only membership policies before the passage of the Civil Eights Act of 1904.

      . We entertain no doubt that Congress intended Title VII to reach retirement plans as conditions of employment, just as such plans are viewed as employment conditions under the National Labor Relations Act. See Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1180, 1188-1189 (7th Cir. 1971), cert. denied, 404 U.S. 939, 92 S.Ct. 274, 30 L.Ed.2d 252 (1971).
      Retirement plans establishing different ages for retirement of male and female employees of one employer violate Title VII. Rosen v. Public Service Electric and Gas Co., 328 F.Supp. 454 (D.N.J.), aff’tl on rehearing, 328 F.Supp. 454 (1970), and Bartmess v. Drewrys U.S.A., Inc., supra.

      . The third party action, in which a class composed of the then employed DeQuincy Division firemen were named as defendants, was protective in nature. The Railroad sought no money damages. Rather it asked, in the event judgment was granted for plaintiffs and reinstatement ordered, that it be protected against retribution from the union and the class of firemen represented whose bargained seniority rights might be affected by the Railroad’s efforts to comply. The final judgment granted such relief. The third party defendants have not appealed from that judgment.

      . The court received evidence and made findings on the periods of time respective plaintiffs would have been physically unable to work even if they had not been mandatorily retired at age 65.

      . The black firemen became employees of Missouri-Pacific in 1956 when by merger it acquired their former employers, three small railroads, which became jrart of defendant’s DeQuincy Division. IARE had been their collective bargaining agent for many years prior to the mergers, and it represented employees of other railroads as well.

      . IARE was created in 1934 to represent blacks employed by the railroad industry because blacks were not admitted to membership in the “Big Five” all-white railroad unions. According to testimony of its President Whitaker, IARE, prior to the passage of the Civil Rights Act of 1964, resisted efforts of BLF & E, one of the “Big Five,” to take over bargaining for the black firemen of the DeQuincy Division because it feared the whites-only union would not fairly represent the blacks’ interests. In 1968, after the events involved in this appeal and after IARE had begun voluntary dissolution because rights of full membership and fair representation were being granted blacks by the "Big Five” unions, the BLF & E became the certified representative of the black firemen of the DeQuincy Division.

      . 45 U.S.C.A. 151 et seq. (1972).

      . IARE as representative of the black firemen was not a party to the arbitration proceedings that culminated in Award 282. Hence the Railroad had no authority under 282 to unilaterally impose its terms upon the black firemen, and such action would have violated the existing collective bargaining agreement covering these men. IARE and the Railroad had agreed, however, that upon termination of the national dispute and entry of the national board’s award, they would enter into negotiations and, using the national award as a pattern, construct an agreement applicable to the black firemen.

      . Other conditions of employment, including the disparity between the pay scales and fringe benefits of white and black firemen, were discussed as well.

      . In the same mail, the Railroad also received a letter from plaintiff Placide, dated June 23, 1964, stating that Charles Stewart “has been appointed General Chairman of Firemen, represented by the International Association of Railway Employees, succeeding Mr. H. W. Simpson,” and asking that any correspondence be sent to Stewart. The letter did not mention the two agreements. See n. 26 at p. 499 infra.

      . The parties stipulated that the effect of the age 65 agreement was to reduce the number of black firemen employed by the Railroad.

      . A tradition well recorded in federal jurisprudence. See, e. g., Steele v. Louisville & Nashville R. Co., B.L.F. & E., etc., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944) ; Tunstall v. Brotherhood L.F. & E., 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944) ; Brotherhood of Locomotive F. & E. v. Palmer, 85 U.S.App.D.C. 429, 178 F.2d 722 (1949) ; Mitchell v. Gulf, Mobile & Ohio R. Co., 91 F.Supp. 175 (N. D.Ala.1950), modified and aff’d sub nom., B. of Locomotive F. & E. v. Mitchell, 190 F.2d 308 (5th Cir. 1951) ; Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (4th Cir. 1951), and Norman v. Missouri-Pacific R. Co., 414 F.2d 73 (8th Cir. 1969).

      . See Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158, 165 (1971).

      . See Rowe v. General Motors Corp., 452 F.2d 348, 355 (5th Cir. 1972), and Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158, 165 (1971).

      . 45 U.S.C.A. § 152 (1972).

      . See Steele v. Louisville and Nashville R. Co., etc., 323 U.S. 192, 202-203, 65 S.Ct. 226, 232, 89 L.Ed. 173, 183 (1944) ; Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) ; Tunstall v. Brotherhood of L.F.& E., 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944), and Brotherhood of R. Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952).

      . Steele v. Louisville & Nashville R. Co., Brotherhood of L. F. & E., etc., 323 U.S. 192, 203, 65 S.Ct. 226, 232, 89 L.Ed. 173, 183 (1944) :
      “[The RLA’s imposition of a duty of fair representation] does not mean that the statutory representative of a craft is barred from making contracts which may have unfavorable effects on some of the members of the craft represented. Variations in the forms of the contract based on differences relevant to the authorized purposes of the contract in conditions to which they are to be applied . . . are within the scope of the bargaining representation of a craft, all of whose members are not identical in their interest or merit.”
      Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048, 1058 (1953) :
      “Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement .affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide, range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.”

      . The NLRA has been construed to impose a statutory duty of fair representation equivalent to that which Steele v. Louisville & Nashville R. Co., Brotherhood of L. F. & E., etc., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), held to be imposed by the RLA. See Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842, 850 (1967).

      . 263 F.2d at 551.

      . Id. (emphasis in original).

      . See, e. g., Local 189, United Papermakers, etc., v. United States, 446 F.2d 980 (5th Cir. 1969).

      . The District Court in the present case made its findings and conclusions of law and granted judgment for plaintiffs prior to the Supreme Court decision in Griggs, whose importance to the legal definition of employer discrimination violative of Title VII and the correctness of the judgment below is recognized by the parties. While the District Court’s determinations might be phrased differently from the ones it could make now using Ch'iggs, our concern here is whether plaintiffs have proven that which must be shown to establish their right to relief and whether defendant has shown anything which constitutes a defense under the present construction of Title VII exhibited by Griggs. We recognize, for example, that the Railroad’s collective bargaining argument discussed above might be rephrased after Griggs as an attempt to establish a “business necessity” defense for the different retirement ages of black and white firemen. What we have said here, however, disposes of that attempt, whatever its verbal formulation. A “business necessity” which is itself the product of the continuation of prior employer discrimination violates Title VII.

      . See Rowe v. General Motors, 457 F.2d 348, 355 (5th Cir. 1972).

      . Griggs v. Duke Power, 401 U.S. at 432, 91 S.Ct. 849, 28 L.Ed.2d at 165.

      . The record fully supports, and the District Court found, that these differentials had been imposed on the black firemen because of their race.

      . Jobs of such firemen were protected under the Award.

      . The Railroad contends that black and white firemen are not fairly comparable classes. Its reasoning, while not entirely clear, appears to run this way. Most of the white firemen became engineers and left firemen ranks before reaching age 65 bcause they had accepted a rule making them eligible for promotion to engineer if they passed engineer tests. The black firemen on the DeQuincy Division, however, had declined to accept an equivalent promotion rule and thus continued in service as firemen until death or retirement. For purposes of discussion we accept these premises as correct, although the second is disputed. [For the history of varying treatment of black and white firemen concerning promotability, see Graham v. B.L.F.&E., 338 U.S. 232, 233, 70 S.Ct. 14, 94 L.Ed. 22, 26 (1949) ; Steele v. Louisville & Nashville R. Co., B.L.F.&E., etc., 323 U.S. 192, 195, 65 S.Ct. 226, 89 L.Ed. 173, 179 (1944) ; Mitchell v. Gulf, Mobile Ohio R. Co., 91 F.Supp. 175 (N.D.Ala.1950), modified and aff’d, 190 F.2d 308 (5th Cir. 1951), and Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (4th Cir. 1951), rev’g, 91 F.Supp. 585 (E.D.Va.1950).] However, testimony of the Railroad’s labor relations officer, Claude Courtway, revealed that there were “a number” of white firemen not promotable to engineer who, nevertheless, were eligible to remain in defendant’s employ as firemen until mandatorily retired at age 70. The black firemen were entitled to be treated, with regard to compulsory retirement age, equally as well as these similarly situated white firemen. Also, the failure of blacks to avail themselves of an opportunity to move out of their class would not confer upon the Railroad immunity from the consequences of discriminatory action against those choosing to remain in the class.

      . Because of our conclusion of law in Part II that the employer may be liable under Title VII even if the union has fairly represented the interests of the irlaintiffs in terms of the RLA and Steele doctrine, we need not reach the issue of whether, prior to the Railroad’s execution of the retirement agreement and with the Railroad’s knowledge, a majority of the members of Local 3 were opposed to age 65 retirement.


author: ORIE L. PHILLIPS, Circuit Judge.

text:
    Vernon Lee BRAY, Plaintiff-Appellee, v. YELLOW FREIGHT SYSTEM, INC., and William G. Reffett, Defendants-Appellants. YELLOW FREIGHT SYSTEM, INC., Plaintiff-Appellant, v. Vernon Lee BRAY, Individual, and Braafladt Transport Co., Defendants-Appellees.
    No. 72-1796.
    United States Court of Appeals, Tenth Circuit.
    July 30, 1973.
    Rehearing Denied Sept. 6, 1973,

      John F. Wheatley, Yukon, Okl., for Vernon Lee Bray.
    Donald G. Hopkins, Tulsa, Okl. (M. Darwin Kirk and Rucker, Tabor, McBride & Hopkins, Tulsa, Okl., on the briefs), for defendants-appellants.
    Before PHILLIPS, SETH and MCWILLIAMS, Circuit Judges.
   ORIE L. PHILLIPS, Circuit Judge.

This is a diversity action brought by Bray against Yellow Freight System, Inc., and William G. Reffett to recover damages resulting from a collision which occurred on Interstate Highway 40 at about 2:45 p. m. on August 11,1970.

The jury returned a verdict for $75,000 in favor of Bray and against Freight System and Reffett. From a judgment entered thereon, Freight System and Reffett have appealed.

At the trial, evidence was adduced, which, with the inferences reasonably deductible therefrom, was amply sufficient to support the finding by the jury of the following facts:

Freight System was the owner of a truck tractor and two trailers, which at the time of the collision was being driven by Reffett as its employee.

At the time of the collision, Bray was the owner of a truck tractor and was driving it as a contract carrier by motor vehicle for Braafladt Transport Company, and there was attached to such tractor a tank trailer belonging to Braafladt.

Under the arrangement with Braa-fladt, Bray was to furnish his tractor to Braafladt to transport anhydrous ammonia in its tank trailer either from Sharon, Oklahoma, or Shamrock, Oklahoma, where it purchased such ammonia, to purchasers thereof from Braafladt. Also, under such arrangement, Bray was to drive such tractor and pay all the operating expenses thereof, including gas and oil and the replacement of tires and other needed parts. Braafladt was also required to secure and pay for all needed permits, and was to pay Bray 65 per cent of the freight. The record does not show how the amount of freight was arrived at, but we may assume that whatever the basis for it was, it was added to the purchase price and collected by Braafladt.

Bray operated under such arrangement for a period of three weeks immediately prior to the collision, and after deducting all expenses of operation of the tractor, realized a net of $695, or $231.66 per week therefrom.

The collision was between the rear of the rear trailer of Freight System and the front end of Bray’s tractor. We will show the exact places of contact later.

Bray had been driving a highway truck since 1926, which was most of his active life. He had been employed as a tractor truck driver in interstate commerce for Groendyke of Enid, Oklahoma, for a period of 16 years, which employment was voluntarily ended by him shortly before he entered the business of contract carrier.

To be authorized to drive a truck tractor in interstate commerce, Bray was required by regulation duly adopted and promulgated by the Secretary of Transportation to take and pass a physical examination. He took and passed such examination about January 1, 1970.

On August 10, 1970, Bray unloaded a cargo of ammonia for a purchaser from Braafladt at Pond Creek, Oklahoma, and then proceeded to Seiling, Oklahoma, where he took an eight-hour break, during which he slept six hours. He got up at about 10 p. m. and proceeded to Et-ter, Texas, arriving there at 2 a. m. on August 11, 1970. He there obtained another load of ammonia. At about 2:30 a. m. on August 11, 1970, he left Etter and proceeded to Dumas, Texas, where he stopped and slept for two hours. He then proceeded to El Reno, Oklahoma, where he delivered the second load of ammonia to a purchaser from Braa-fladt. He had a tire repaired and ate a meal at El Reno and then started his return trip to Amarillo. While hé was so en route, the collision occurred.

The Cherokee truck stop is located on Interstate Highway 40, about two miles east of the point where the collision occurred.

Bray suffered a concussion as a result of the collision, and remembered nothing that occurred from shortly after he passed such truck stop until he awakened in the General Hospital at Clinton, Oklahoma, where he had been taken by ambulance following the collision.

Bray was not sleepy at the time he approached the truck stop, nor when he passed it. He had had eight hours’ sleep in the 24 hours immediately before the time of the collision.

Before he suffered his lapse of memory, he observed that the traffic was very heavy in both the right and left westbound lanes of Interstate Highway 40, and that it was so heavy in the left lane that it was crowded in that lane.

In August 1970, Bray had ulcers and took antiacid tablets on the advice of his doctor. However, the ulcers did not in any degree affect his ability to properly drive a truck tractor.

On the day of the collision, Reffett was driving Freight System’s tractor, and it was hauling two trailers attached thereto. On that day, he drove from Baxter Springs, Kansas, and was on his way to Amarillo, Texas. He had proceeded on Highway 66 to Afton, Oklahoma, then on the Will Rogers Turnpike to Tulsa, Oklahoma, then on the Turner Turnpike to Interstate Highway 40, and on the latter highway to a point 2.8 miles east of Clinton, Oklahoma.

Freight System maintained a tire bank at Clinton, Oklahoma, and at a point about 2.8 miles east of Clinton Reffett pulled off of the traveled portion of the highway onto the shoulder of the road and parked in order to check his tires. After he had checked his tires and found they did not need repair or replacement, Reffett released his brakes, turned on his signal light to indicate a left turn, and proceeded west for a distance of 90 to 100 yards on such shoulder.

Reffett testified that when he first started to drive onto the shoulder of the highway, he looked back and could see Bray’s truck coming from the east. He further testified that when he reached a point on the shoulder of the road about 90 or 100 yards from where he parked his tractor and trailers to examine his tires, he moved onto the traveled portion of the right westbound lane of the highway until his tractor and trailers were two and one-half to three feet to the left of a white line which marked the edge of the traveled portion of the right westbound lane, and that when he started to turn onto such traveled portion Bray’s tractor and trailer were only about 100 yards behind him.

Reffett realized, as was clearly shown by his own testimony, that when he turned onto the traveled portion of the highway the distance between his rear trailer and Bray’s tractor was insufficient for him to safely enter the traveled portion of the right westbound lane, and he relied on Bray to turn his tractor and trailer into the left westbound lane.

Reffett further testified that with his tractor and trailers occupying about three feet of the traveled portion of the right westbound lane and the remainder thereof on the shoulder of the highway, he continued west at a speed of 25 miles per hour for a distance of about 100 yards, and that when Bray reached a point about 40 feet east of his rear trailer, he decided Bray was not going to turn into the left westbound lane, and for that reason decided to turn off of the traveled portion of the right westbound lane onto the shoulder of the highway.

Reffett further testified that when he started to turn back onto the shoulder of the highway, he did not see Bray’s tractor and trailer again, because he was busy trying to steer his tractor and trailers back onto the shoulder of the highway.

Reffett admitted that the traffic was heavy in both the left and right westbound lanes when he started to drive along the shoulder of the highway, and that motor vehicles passed him as he traveled on the shoulder of the highway.

James Sawyer, an Oklahoma Highway Patrolman, investigated the accident and testified at the trial. There was a Highway Patrol Headquarters at Clinton, and Sawyer was stationed there. He was well qualified by courses he had taken at the Oklahoma Highway Patrol School and by experience in investigating highway accidents.

He received notice of the collision at such headquarters at 2:54 p. m. on August 11, 1970. He arrived at the scene of the collision about 3 p. m. The accident occurred 2.8 miles east of the city limits of Clinton.

Sawyer testified in detail as to the damage to Reffett’s tractor and trailers and to Bray’s tractor and trailer. He said the westbound lanes of the highway were blocked by the different parts of the vehicles of Reffett and Bray, and motor vehicles were backed up seven to eight tenths of a mile east of the collision.

He also testified that it was vacation time, and that the traffic on Interstate Highway 40 was very heavy. He said he saw no skid marks east of the point of impact. He further testified that Bray was driving in his proper lane of traffic when the collision occurred and that he found no evidence of excessive speed.

He further testified that the highway passed under an overpass located 140 feet west of the point of impact, and that it was nearly impossible for trucks the size of Reffett’s tractor and trailers to pass under the overpass without a portion of them being in that part of the westbound lane south of the white line, because the roof of the overpass tapered down from its center outward.

Reffett testified he believed he could have passed under the overpass without driving on a portion of the right westbound lane, but frankly admitted that he would not have attempted so to do.

Sawyer testified that shortly after his arrival at the scene of the collision an ambulance arrived, and that they loaded Bray into the ambulance and he was taken to the hospital at Clinton; that Bray was unable to talk, and that Bray had been “slung down the highway” for a distance of 100 feet.

Basing his conclusion on the location of the place of impact, Sawyer estimated that at the time of the impact the north side of Reffett’s rear trailer was two feet south of the white line which marked the north edge of the right westbound lane. Further basing his conclusion on the place of impact, Sawyer estimated that the south side of Ref-fett’s rear trailer was nine and one-half feet north of the dividing line between the left and right westbound lanes. From the foregoing, he further concluded that there was room 'left for Bray’s trailer, which was seven feet, four inches in width, to have passed between Ref-fett’s rear trailer and such dividing line.

But Reffett testified that when he started to turn out on the shoulder of the highway, the left side of his rear trailer was two and one-half to three feet to the left of such white line, and Bray’s tractor was then only 40 feet to the rear of Reffett’s rear trailer. Hence, Ref-fett’s own evidence showed that the clearance between his rear trailer and such dividing line was nine feet, instead of nine and one-half feet, and might have been as little as eight and one-half feet.

Moreover, Bray would have had to get his tractor and trailer lined up parallel with such dividing line before he could attempt to pass between Reffett’s vehicle and such dividing line, and he had only 40 feet and very few seconds to so align his tractor and trailer.

Moreover, until Reffett started to turn back onto the shoulder of the highway, Bray had the right to assume that Reffett would continue on the course where two and one-half to three feet of his vehicles were south of the white line marking the north edge of the right westbound lane, until he had passed under the overpass.

47 Okl.St.Anno. § 11-603 provides:

“No person shall start a vehicle which is- stopped, standing or parked unless and until such movement can be made with reasonable safety.”

Reffett’s own testimony clearly shows that he violated such statute and was guilty of negligence per se.

That brings us to the claims of Freight System and Reffett that Bray was guilty of contributory negligence as a matter of law, and in the alternative, that Bray was guilty of negligence which was the proximate cause of the collision.

Reffett and Freight System claim that Bray was guilty of negligence in failing to pass Reffett’s tractor and trailers in the right westbound lane. We doubt that under the undisputed facts, a man of ordinary prudence would have attempted to pass Reffett’s tractor and trailers in the right westbound lane, but giving Reffett and Freight System the benefit of the doubt, we think it is at least clear that under the evidence and the inferences reasonably deductible therefrom, the minds of reasonable men might reach different conclusions as to whether Bray should have attempted to pass Reffett’s tractor and trailers in the space between them and the center line of the two westbound lanes. We conclude that whether Bray should have so attempted to pass Reffett’s outfit was a question of fact for the jury.

Counsel for Reffett and Freight System also contend that Bray was guilty of contributory negligence or primary negligence, which was the proximate cause of the collision, because of his failure to turn into the left westbound lane and yield the right of way to Reffett. The evidence clearly shows that on the afternoon of August 11, 1970, the traffic was heavy in both the right and left westbound lanes of the highway, and that it was so heavy in the left westbound lane that it was crowded.

A number of motor vehicles traveling west passed Reffett as he drove on the shoulder of the highway, and also when he drove in part of the right westbound lane. Reffett testified that he first saw Bray’s truck in the right westbound lane just before he started to move along the shoulder of the highway,' and that Bray was then 150 yards to his rear. He further testified that when he turned from the shoulder of the highway partially into the right westbound lane, Bray was 100 yards to his rear, and that when he turned into such westbound lane he relied on Bray’s turning his tractor and trailer into the left westbound lane and yielding the right of way to him.

Had Reffett looked back in his rear vision mirror from the shoulder of the highway and before he entered the westbound lane, Bray’s tractor and trailer would have shut off his view of a passenger motor vehicle traveling closely behind Bray in the left westbound lane, and until the passenger vehicle cleared Bray’s tractor and trailer it would not have been safe for Bray to turn into the left westbound lane.

Whether, under the evidence, there was a time when Bray could have safely turned from the right into the left westbound lane, after Reffett had started to move from where he was parked along the shoulder of the highway, and passed Reffett’s tractor and trailers is doubtful. It at least presents a question with respect to which the minds of reasonable men might reach different conclusions, and if so, it was an issue of fact which was properly submitted to the jury. (See cases cited in Note 5.)

Reffett and Freight System assert that Bray was guilty of contributory negligence in not applying his brakes and slowing down his speed. They base their statement that Bray did not apply his brakes on the statement of the Highway Patrolman that there were no skid marks east of the point of impact. There is no evidence in the record that Bray did not apply his brakes prior to the collision. To have set his brakes so hard that they would have locked the wheels and caused' skid marks would have been foolhardy. Bray was traveling 60 miles per hour, and to so apply his brakes could have caused his tractor and trailer to jackknife or to swerve into the traffic in the left westbound lane.

Moreover, Reffett testified that when he started to turn back onto the shoulder of the highway, he was so busy making the turn that he did not look in his rear vision mirror, and did not see Bray from the time he started to turn off until after the collision. We are of the opinion that there was no evidence which would have justified the court in holding that Bray was guilty of contributory negligence as- a matter of law in failing to apply his brakes.

We have purposely refrained from setting out the pertinent facts as to the damages suffered by Bray, because we think it will render the opinion more readily understandable when we discuss the issues as to damages, which we now proceed to do.

We start with the premise that the court properly submitted to the jury the issue of whether Bray was guilty of contributory negligence or of primary negligence, which was the proximate cause of the collision, and that the jury found in favor of Bray on that issue.

It was stipulated that Bray expended $3,000 for medical and hospital expenses and suffered damages to his property of $4,500, or an aggregate of $7,500.

The question then is whether the evidence of personal injuries and pain and suffering suffered by Bray, and the capacity to earn lost by Bray as the result of Reffett’s negligence, was sufficient to sustain an award of damages in the amount of $67,500.

As the proximate result of the collision, Bray suffered extensive, severe and very painful injuries. He suffered cuts, bruises, and abrasions all over his body. The palms of his hands and the bottoms of his feet were severely burned from sliding a long distance on the rough payment when he was thrown from the cab of his truck as a result of the collision.

He was taken by ambulance from the place of the collision to the emergency room at the Oklahoma General Hospital at Clinton, Oklahoma. On his arrival at the emergency room of the hospital at about 3:15 p. m. on August 11, 1970, he was examined by Dr. Paul B. Lingenfel-ter, who did general surgery and specialized in chest surgery.

Dr. Lingenfelter testified to the following facts:

Bray was in moderate shock on his arrival, was bleeding, and needed blood transfusions. He had scalp lacerations and multiple lacerations of the face, which were disfiguring and would require plastic surgery. He also had multiple lacerations of his arms and legs. He had fractures of the seventh, eighth, and ninth ribs on the right side of his chest. The broken ends of the ribs were sharp and had punctured the right lung. He had contusions of the right lung, and hemorrhaged from the lung and pleura inside the chest wall. He had a pneumo-thorax, which is air in the right chest space, and fluid in the base. He also had a fracture and downward movement of his left cheekbone, which had to be reduced and put into proper position by a surgical procedure. He had a concussion of the brain and was semiconscious. He was unable to remember what happened to him. Dr. Lingenfelter testified that his concussion could have caused his loss of memory from a time shortly before the collision up to the time he was received at the hospital.

Bray was given tetanus injections and antibiotics. Dr. Lingenfelter did a very extensive repair job on the lacerations on his face. The cuts were irregular and ragged and required repairs by restoring the various anatomical portions to their normal position, which required three layers of sutures. Repairs also had to be made of the scalp, leg, and arm wounds. ,Dr. Lingenfelter made the needed repairs while Bray was still in the emergency room. Bray was then removed to a bed in the hospital. He was given treatment for shock. An elastic belt was placed around his chest wall to hold the broken ribs in proper position.

On August 21, 1970, Bray was transferred from the Clinton Hospital to St. Anthony’s Hospital at Amarillo, Texas.

Medication for relief from pain was given to Bray during the time he was in such hospitals, and also for a substantial time thereafter. He was troubled by-shortness of breath and was fitted with a rib belt to enable him to breath better. He wore the belt for approximately two months after he left St. Anthony’s Hospital, but was still troubled with shortness of breath on slight exertion at the time of the trial.

As a proximate result of the collision, Bray suffered severe trauma of his shoulders. That caused a restriction from normal of the distance he could raise his arms and the distance he could move his neck. Such restriction continued, although on the advice of the doctor he had taken regular exercises to relieve it. If he tried to move his arms beyond the point of restriction, he suffered severe pain. He also suffered pain if he attempted to turn his neck beyond the point of restriction.

Bray was discharged from St. Anthony’s Hospital on September 5, 1970. Dr. Lonnie C. Redus, who was Bray’s attending physician after he was removed to St. Anthony’s Hospital, examined him on June 12, 1972, two days before he gave his deposition, which was introduced at the trial. He testified to the following facts:

Bray still had limited motion of his neck and could not turn his head more than 20°, while 45° to 90° was normal. Bray was unable to raise his arms above his head. He was barely able to get them up to a 90° angle. He had a marked decrease in motion in both shoulders, which was the result of a great amount of trauma he received in his neck and shoulders at the time of the collision. There was a fairly large amount of callus on the ribs which had been broken, and the rib cage was tender to the touch.

As noted above, on about January 1, 1970, Bray took and passed the physical examination required by the United States Government for one to drive a truck in interstate commerce, but the injuries received by him at the time of the collision rendered it impossible for him to drive a truck or engage in any type of hard labor.

Bray testified that he was still short of breath at the time of the trial, on very slight exertion, and that he continued to suffer from the limitation of motion of his shoulders, arms and neck, as testified to by Dr. Redus in his deposition. He further testified that he continued to suffer from pain.

At the pretrial conference, the parties stipulated that at the time of the accident Bray had a life expectancy of 14.78 years.

Bray further testified that when he left Groendyke he purchased a tractor and rented a trailer, and that for three weeks before the collision he had engaged in transporting goods for hire in interstate commerce on a contract basis; that during those three weeks he had realized a net profit of $625, and that based on his experience in the trucking business, he would have been able in a short time to build such business up to where he would have realized a net profit of $250 per week, had he not suffered the physical injuries caused by the collision.

Damages suffered from personal injuries and pain and suffering, nor ordinarily from loss of capacity to earn, cannot be established with mathematical certainty.

In A to Z Rental, Inc. v. Wilson, 10 Cir., 413 F.2d 899, at 908, the court said:

“When the cause and existence of damages have been established with the requisite certainty, recovery will not be denied because the amount of such damages is difficult of ascertainment.
“The rule which precludes the recovery of uncertain damages applies to those that are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect to that amount.
“In Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, at 265, 66 S.Ct.. 574, at 580, 90 L.Ed. 652, the court said:
“ ‘The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.’
“* -X- -x- a reasonable basis for computation and the best evidence obtainable under the circumstances of the case and which will enable the trier of the facts to arrive at a fairly approximate estimate of the loss is sufficient.”

The injuries suffered by Bray, the pain he suffered therefrom, the partial disability he temporarily suffered, and the partial permanent disabilities he suffered from such injuries were fully and clearly established by the evidence. We are of the opinion that such evidence was amply sufficient to enable the jury to arrive at a fairly approximate estimate thereof, measured in dollars.

We also believe that the evidence of Bray as to the loss of capacity to earn, based on his long experience in the driving of trucks, his knowledge of the trucking business in the vicinity, where he intended to carry on the business of contract carrier, his experience and earnings as a contract carrier during the three weeks preceding the collision, and the net amount he was able to earn as the operator of a service station, where he had to hire employees to do practically all of the labor, was the best evidence obtainable and was sufficient to enable the jury to arrive at a fairly approximate estimate of the damage he suffered from the loss of his capacity to earn.

We are of the opinion that the evidence was amply sufficient to support an award of $67,500, in addition to $3,000 for medical and hospital expenses and $4,500 for property damage, even though the award for pain and suffering was limited to $30,000, the amount prayed for in the complaint.

We conclude that the claims of error made by Freight System and Reffett were not well founded, and the judgment is therefore

Affirmed.

      . Hereinafter referred to as Freight System.

      . 49 U.S.C.A. § 303(a) (15) in part here pertinent reads:
      “ (15) The term ‘contract carrier by ‘motor vehicle’ means any person which engages in transportation by motor vehicle of * * * property in interstate ® * * commerce, for compensation (other than transportation referred to in paragraph (14) of this subsection * * *), under continuing contracts with one person or a limited number of persons either (a) for the furnishing of transportation services through the assignment of motor ve-hides for a continuing period of time to the exclusive use of each person served or (b) for the furnishing of transportation services designed to meet the distinct need of each individual customer.” Paragraph (14), supra, in part here pertinent reads:
      “(14) The term ‘common carrier by motor vehicle’ means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate * * * commerce of * * * property or any class or classes thereof for compensation, whether over regular or irregular routes, * *

      . Hereinafter referred to as Braafladt.

      . See National Traffic and Motor Vehicle Safety Act of 1966, Pub.L. 89-563, 80 Stat. 718, 15 U.S.C.A. § 1381 et seq.

      . See Central Surety & Ins. Corp. v. Murphy, 10 Cir., 103 F.2d 117, 119; Larson v. Tri-City Electric Service Co., 7 Cir., 132 F.2d 693, 697; Terry v. Muller, 8 Cir., 190 F.2d 170, 172; United States v. Bemis, 9 Cir., 107 F.2d 894, 897; Stueber v. Admiral Corporation, 7 Cir., 171 F.2d 777, 779.

      . Kura v. Manley, 194 Okl. 574, 153 P.2d 623, 627; Oklahoma Ry. Co. v. Alexander, 205 Okl. 691, 240 P.2d 742, 744; Spicers, Inc. v. Budd, 199 Okl. 576, 188 P.2d 692, 695; Denco Bus Lines v. Hargis, 204 Okl. 339, 229 P.2d 560, 563; Chicago, Rock Island and Pacific R. Co. v. Hawes, Okl., 424 P.2d 6, 15.

      . See also Woodburn Brothers v. Erickson, 10 Cir., 230 F.2d 240, 242; Baer Bros. Land & Cattle Co. v. Palmer, 10 Cir., 158 F.2d 278, 280; Hoffer Oil Corporation v. Carpenter, 10 Cir., 34 F.2d 589, 592; Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 562, 51 S.Ct. 248, 75 L.Ed. 544; Indian Territory Illuminating Oil Co. v. Town-ley, 10 Cir., 81 F.2d 159, 160; Vanguard Ins. Co. v. Connett, 10 Cir., 270 F.2d 868, 870; T. F. Scholes, Inc. v. United States ex rel. H. W. Moore Equipment Co., 10 Cir., 295 F.2d 366, 369, 370; Larrance Tank Corporation v. Burrough, Okl., 476 P.2d 346, 350; City of Holdenville v. Griggs, Okl., 411 P.2d 521, 526; Oklahoma Transportation Company v. Hays, Okl., 405 P.2d 181, 184.