author: McENTEE, Circuit Judge.

text:
    Alfred WILSON et al., Plaintiffs, Appellants, v. NOOTER CORPORATION, Defendant and Third Party Plaintiff, Appellee, v. The H. K. FERGUSON COMPANY, Third Party Defendant, Appellee. Alfred WILSON et al. Plaintiffs, Appellees, v. NOOTER CORPORATION, Defendant and Third Party Plaintiff, Appellant, v. The H. K. FERGUSON COMPANY, Third Party Defendant, Appellee.
    Nos. 74-1056, 74-1057.
    United States Court of Appeals, First Circuit.
    Heard June 4, 1974.
    Decided July 11, 1974.

      Dort S. Bigg, Manchester, N. H., with whom Larry B. Pletcher and Wiggin, Noirie, Sundeen, Pingree & Bigg, Manchester, N. H., were on brief, for Alfred Wilson and others.
    James E. Higgins, Manchester, N. H., with whom Joseph F. Devan and Sheehan, Phinney, Bass & Green, Manchester, N. H., were on brief, for The H. K. Ferguson Co.
    Martin L. Gross, Concord, N. H., with whom Sulloway, Hollis, Godfrey & So-den, Concord, N. H., were on brief, for Nooter Corp.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

This diversity case is before us for the second time. Briefly, the facts are as follows. Third-party defendant Ferguson, an Ohio corporation, was general contractor, for the construction of a brewery in Merrimack, N. H. Defendant Nooter, a Missouri corporation, was subcontractor in charge of installing brewing equipment. Nooter desired to remove a ten-foot long “I” beam from the partially completed building. To do so, it used a crane owned by Ferguson and operated by two Ferguson employees. At the time, plaintiff Wilson, also a Ferguson employee, was standing on a staging several feet below, engaged in brick-laying. As the crane’s boom removed the beam from the building, the boom began to move laterally. A pin protruding from the beam snagged one of the cables supporting the staging, causing it to move away from the building. Wilson clung to the wall that he had been working on. The staging then swung back to the wall, injuring Wilson in the back. At trial, it was acknowledged that the crane had a switch which would have prevented the lateral movement of the boom. The crane operators, however, did not turn it on.

Wilson and his wife brought these actions against Nooter which in turn filed a third-party complaint against Ferguson for indemnity. At the close of the evidence in the first trial, the court directed verdicts against Nooter for the Wilsons and Ferguson finding as a matter of law that the Ferguson employees operating the crane were at the time “borrowed servants” of Nooter. We reversed and remanded for a new trial, holding that under New Hampshire law the borrowed-servant issue was a factual one which should have been submitted to the jury. Wilson v. Nooter Corp., 475 F.2d 497 (1st Cir.), cert. denied, 414 U.S. 865, 94 S.Ct. 116, 38 L.Ed.2d 85 (1973).

At the second trial, the court submitted three questions to the jury: (1) Was the accident caused by negligence of a Nooter employee, Nelson, who was directing the crane with hand signals? (2) Was the accident caused by negligence of the Ferguson employees actually operating the crane? (3) Were the Ferguson employees who were operating the crane borrowed servants of Nooter? The jury answered the first question in the negative, the second in the affirmative and the third in the negative. Consequently, the court entered judgment for Nooter against- the Wilsons. Their motion for judgment notwithstanding the verdicts was denied.

In this appeal, the Wilsons contend, first, that the court erred in refusing to charge the jury with respect to the “inherent danger” doctrine, and, second, that the evidence required a directed verdict in their favor with respect to alleged negligence of Nooter employee Nelson. We affirm.

The “inherent danger” doctrine was first expressed by the New Hampshire court in Thomas v. Harrington, 72 N.H. 45, 54 A. 285 (1903). There, the defendants hired a third party to install a water pipe into their house. To carry out this task, the third party dug a ditch 12 feet long, 5 y2 feet deep and 2 feet wide in the street in front of the house. Plaintiff was thrown from her carriage and injured when her horse fell into the ditch. In reversing a directed verdict for defendants, the court found that it was “not open to doubt” that the defendants “had in mind the excavation of a ditch in the highway” at the time they contracted with the third party for the water-pipe installation. 72 N.H. at 46-47, 54 A. at 286:

“Such an excavation in a street is a nuisance, because it renders public travel dangerous, and makes extra precautions necessary for the protection of travelers. Hence it became the duty of the defendants, who authorized and caused the ditch to be dug, to protect the public from the danger occasioned thereby. The danger arose directly from the work which they required to be done, and not from the negligent manner of its performance. In such a case one cannot avoid responsibility for the consequences naturally to be apprehended in the course of the performance of the work by employing another to do the work as an independent contractor. Upon the modern authorities, the question of liability, under such circumstances, does not depend upon an inquiry whether the parties sustain the relation of master and servant, or whether the contract between them makes the employe an independent contractor. The employer cannot absolve himself from the duty which, under the law, he owes to another with reference to the performance of work which is dangerous in itself — as the digging of a ditch in the highway.”

Id.

Review of the New Hampshire cases since Thomas reveals two main principles. First, the inherent-danger doctrine applies only where the alleged danger was “naturally to be apprehended” by the defendant at the time it arranged with an independent contractor to carry out the work. The New Hampshire court made that finding in Thomas, and similar findings were made, or at least were permitted, in Carr v. Merrimack Farmers Exch., 101 N.H. 445, 146 A.2d 276 (1958); Nashua Gummed & Coated Paper Co. v. Noyes Buick Co., 93 N.H. 348, 41 A.2d 920 (1945), and Canney v. Rochester Agricultural & Mechanical Ass’n, 76 N.H. 60, 79 A. 517 (1911). See also Stevens v. United Gas & Elec. Co., 73 N.H. 159, 60 A. 848 (1905) (construing analogous tort doctrine). In contrast, the New Hampshire court held that the inherent-danger doctrine was inapplicable in Lane v. Groetz, 108 N.H. 173, 230 A.2d 741 (1967), where an independent contractor shoveled a path in the snow directly across a metal grating, causing an unwary pedestrian to slip and fall:

“It was not a ‘necessary or anticipated part of the work’ which the decedent [defendant’s intestate] sought to have done, that the path should cross the street drain, and this consequence of causing the path to be made was not ‘naturally to be apprehended’ in advance. Cf. Thomas v. Harrington, 72 N.H. 45, 46, 54 A. 285, 65 L.R.A. 742; Carr v. Merrimack Farmers Exchange, 101 N.H. 445, 146 A.2d 276. See Prosser on Torts, (3rd ed.) 485.”

Id. at 176, 230 A.2d at 744.

The second principle is that the determination of inherent danger should not be based on broad generalizations, but instead on the particular facts in each case. . Thus, in Carr, supra, the court acknowledged that transportation of baled hay on a public highway was generally not an inherently dangerous activity. Nevertheless, where plaintiff alleged that the defendant shipper knew beforehand that the hay in that case was insecurely loaded on an open platform trailer, the court held that plaintiff had stated a valid cause of action against the shipper under the inherent-danger doctrine. Cf. Nashua Gummed & Coated Paper Co. v. Noyes Buick Co., supra (use of acetylene torch is inherently dangerous when ordered done in an area with highly inflammable materials near at hand).

Applying these principles to the instant case, we hold that under New Hampshire law the trial court properly excluded the inherent-danger issue from the jury’s consideration. The accident resulted from the lateral movement of the boom as it pulled the beam from the building. This movement was not a necessary or anticipated part of the project. It could, and should, have been prevented by setting the proper switch in the crane. Wilson did not allege, and the evidence does not show, that Nooter either knew or should have known at the time it engaged the Ferguson crane that the crane’s operators would fail to set that switch. In the absence of such knowledge or circumstances charging it with the knowledge, this case is distinguishable from Carr, supra, and the other New Hampshire cases applying the inherent-danger doctrine. Instead, it is a case like Lane, supra, where the failure to allege advance knowledge of the independent contractor’s dangerous act precluded a cause of action based on that doctrine.

Wilson’s second contention requires little discussion. Nelson was directing the crane operators with hand signals at the time the beam snagged the cable. The record does not conclusively establish that Nelson’s handling of this responsibility was deficient. Moreover, even if it did, the jury could well conclude that only the crane operators’ negligence was the actual and/or proximate cause of Wilson’s injury. Therefore, the jury’s finding that Nelson was not responsible for the injury must stand and Wilson is left to his remedy under the Workmen’s Compensation Law.

In view of these holdings, we need not reach the other issues raised by the parties.

Affirmed.

      . A more detailed statement of facts can be found in our first opinion. Wilson v. Nooter Corp., infra.

      . The New Hampshire Workmen’s Compensation Law, N.H.Rev.Stats.Ann. ch. 281:12 (1973 Supp.), bars an employee or spouse from bringing a tort action against the employer. The employee must rely instead on the statute for relief. See, e. g., Reed v. New England Tel. & Tel. Co., 175 F.Supp. 409 (D.N.H.1958). Therefore, Wilson and his wife could not recover against Ferguson, his employer, based on the negligence of the crhne operators, both of whom were Ferguson employees. However, the statute expressly permits an employee to bring a tort action against third parties, such as Nooter. N.H.Rev.Stats.Ann. ch. 281:14 (1966).

      . The seeds of the doctrine can be discerned in dicta of earlier New Hampshire cases. See Pittsfield Cottonwear Mfg. Co. v. Pittsfield Shoe Co., 71 N.H. 522, 53 A. 807 (1902); City of Manchester v. Warren, 67 N.H. 482, 32 A. 763 (1893); Knowlton v. Hoit, 67 N.H. 155, 30 A. 346 (1892); Carter v. Berlin Mills, 58 N.H. 52 (1876).

      . This is an objective test. See Carr v. Merrimack Farmers Exch., 101 N.H. 445, 449, 146 A.2d 276, 279-280 (1958).

      . Nooter disputes this interpretation of the Carr decision, arguing that the New Hampshire court did not apply the inherent-danger doctrine to the facts of that case. However, the passages on which Nooter relies for this conclusion appear to us to be directed at distinguishing between transportation of baled hay in general (not inherently dangerous) and transportation of baled hay with the knowledge that it is insecurely loaded (inherently dangerous). Our interpretation is consistent with the policy behind the doctrine, which is to prevent parties from evading liability for injuries resulting from activities from which they benefit and which they know to be dangerous.

      . Presumably, the jury based its finding of negligence by the crane operators on their failure to set the switch.


source: Caselaw Access Project

author: WILLIAM E. DOYLE, Circuit Judge.

license: Public Domain

text:
    STERNER AERO AB and Various Underwriters At Lloyds, Plaintiffs-Appellants, v. PAGE AIRMOTIVE, INC., et al., Defendants-Appellees.
    No. 73-1810.
    United States Court of Appeals, Tenth Circuit.
    Argued March 21, 1974.
    Decided June 10, 1974.
    Rehearing Denied July 1,1974.

      Clyde A. Muchmore of Crowe, Dun-levy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl. (Ben L. Burdick of Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., and Harold B. Carter, Jr. and A. Gordon Grant, Jr. of Montgomery, Barnett, Brown & Read, New Orleans, La., on the brief), for appellants.
    Gary G. Bachman, Oklahoma City, Okl., for Page Airmotive, Inc.
    Clyde J. Watts of Watts, Looney, Nichols, Johnson & Hayes, Oklahoma City, Okl. (William H. Wilson of Rhodes, Hieronymus, Holloway & Wilson, and Burton J. Johnson of Watts, Looney, Nichols, Johnson & Hayes, Oklahoma City, Okl., on the brief), for Thunderbird Aviation, Inc.
    Before HILL and DOYLE, Circuit Judges, and DURFEE, Judge.

       Honorable James R. Durfee, United States Court of Claims, sitting by designation.

   WILLIAM E. DOYLE, Circuit Judge.

The issue presented to us in this appeal is whether the trial court erred in granting defendants’ motion for summary judgment. Defendant Page Airmotive had rebuilt an airplane engine and sold it to Sterner Aero AB, which was in Sweden. This engine failed on a take off, causing the plane to go down. The forced landing was in a lake and there were no personal injuries, but the plane itself was damaged and the demand is for some $50,000.

The engine, which was purchased from Page Airmotive, was a Pratt-Whitney R-1340-AN-1. The purchase was made on April 26, 1968 and the malfunction occurred on May 28, 1969. The action herein is in, negligence in which the doctrine of res ipsa loquitur is invoked and also in implied warranty.

At the time of the crash the plane had been in operation for one year and had a total of 538 hours of flying time. The parties to the sale had entered into a warranty agreement which was carefully negotiated through correspondence of the parties. This correspondence occurred over a month prior to the completion of the sale.

First, there was a standard written warranty which provided that:

Major overhaul of aircraft engines and accessories shall be covered by this warranty for the first 100 hours of operation or the first 90 days after acceptance of delivery, or if delivered by shipment, receipt of shipment by the customer.
This warranty is expressly in lieu of any and all other warranties or representations express or implied.

However, by letter dated April 15, 1968, it was agreed that the 90 day warranty be extended to six months or 100 hours, whichever occurred first.

The question is whether this exclusion of all other warranties, express or implied, effectively barred the present action, even though a tort, so as to justify the granting by the court of the defendants’ motion for summary judgment. In granting the motion for summary judgment the trial court noted that the contracting parties were knowledgeable and that they had carefully negotiated the terms and conditions of the sale. The trial court then went on to say:

In view of this negotiated contract between knowledgeable parties covering the specific warranties agreed upon, the Court is of the opinion that § 402-A, Restatement of Torts (2nd) does not apply. The Court knows of no law which prohibits knowledgeable parties from agreeing upon the terms of a warranty of merchandise or materials sold." This is not a case between an ordinary purchaser of consumer goods who relies upon the expertise and knowledge of the seller or manufacturer. The parties to this case had an equal bargaining position, and could contract upon such terms and conditions as they saw fit.

The trial judge added that the engine had accumulated engine running time of 538 hours (almost its recognized life). It had been in use for more than one year so that the engine hours and the restrictions had been far exceeded when the failure occurred.

Finally, the trial court ruled that the limitations of hours and of time contained in the warranty precluded a' lawsuit under implied warranty or § 402A.

I.

Oklahoma law has long recognized the contractual disclaimer of express and implied warranties. Allis-Chalmers Mfg. Co. v. Hawhee, 187 Okl. 670, 105 P.2d 410 (1940). At present such waiver continues to be allowed under the specified provisions of 12A O.S. A. § 2-316.

Like many states, Oklahoma first developed the concept of liability without fault in products defect cases under the rubric of implied warranty. This approach started as a contractual one, and as such often carried contractual defenses such as the requirement of privity, the requirement of giving notice of defects and the right of contract disclaimers. See discussion in Prosser, Torts (2d ed. 1971), pp. 655-58. These contract defenses caused complexity as well as injustice and this caused many states to abandon these defenses. Oklahoma took this step as far as the requirement of privity in products liability eases. Marathon Battery Co. v. Kilpatrick, 418 P.2d 900 (Okl.1966).

Many jurisdictions have gradually abandoned the whole concept of implied warranty in products liability, adopting instead the simpler and more manageable concept of strict liability in tort as exemplified by § 402A, Restatement of the Law of Torts 2d. This strict liability in tort is substantially similar to implied warranty stripped of the contract defenses of privity, notice, disclaimer and the other contract attributes.

Very recently the Oklahoma Supreme Court followed the lead of other jurisdictions in taking this final step. It has adopted the concept of strict liability in tort as it is defined in § 402A of the Restatement. Its only reservation is in designating it as Manufacturers’ Products Liability. This significant development is fully set forth in Kirkland v. General Motors, Okl., 521 P.2d 1353, decided April 23, 1974. It is important to note that Kirkland was decided after the district court ruled on appellee’s motion for summary judgment at bar, on August 22, 1973. Indeed this appeal had been filed and the briefs had been submitted at the time of the announcement of the decision.

While in most instances it is immaterial whether plaintiff seeks to recover (or the jurisdiction allows recovery) under the theory of strict liability in tort or under implied warranty without privity requirements, the question is vital in the case at bar because the trial court was asked to decide the legal effect of a negotiated contractual disclaimer between plaintiff and defendant Page of all implied warranties, a waiver provision which, being clearly expressed and entered into through negotiation between parties of relatively equal bargaining power, would be legally permissible in Oklahoma. Such a waiver would not appear to abrogate plaintiff’s right of action in tort under strict liability, as such a" right exists in Oklahoma, for it does not mention any waiver of strict liability.

However, given the clear language of the waiver provision together with the fact that the total warranty was freely entered into following express negotiations by the parties, we have to conclude that its intent was to preclude all future rights to recover for product defects which had their legal basis in express or implied warranties (other than the express warranty negotiated by the parties in the agreement).

Under the Kirkland opinion, breach of implied warranty is no longer an appropriate remedy for recovery in products liability cases, except as pro-vided in the Uniform Commercial Code. The implied warranty theory is now merged under Oklahoma law into the theory and doctrine of Manufacturers’ Products Liability. (See page 1365 of the Kirkland opinion).

II.

Having concluded that the result of limiting defendants’ warranty liability was to bar any suit based upon implied warranty, the remaining question is whether plaintiff has tort claims in negligence and strict liability.

It is our conclusion that the disclaimer provision was not effective to bar an action based upon Manufacturers’ Products Liability as that doctrine has been defined in Kirkland v. General Motors Corp., supra. The Kirkland case involved an allegedly defective seat back adjustment mechanism in a 1969 Buick automobile. The Oklahoma Supreme Court decided that traditional concepts of contract law are inapplicable in Manufacturers’ Products Liability cases. We construe this as precluding the defendants from asserting the existence of a contractual disclaimer provision as a valid defense to liability.

The Kirkland decision delineated the three essential elements (set forth in § 402A) which are necessary to establish a case in Manufacturers’ Products Liability: First, plaintiff must prove that the product was'the cause of the injury; second, plaintiff must prove that the defect existed in the product at the time it left the manufacturers’ possession and control; and third, plaintiff must prove that the defect made the product “unreasonably dangerous”, that is, dangerous to an extent beyond that which would be contemplated by the ordinary purchaser.

We do not prejudge the evidence. As of now it cannot be determined to be sufficient to satisfy the standards of Oklahoma’s new Manufacturers’ Products Liability doctrine. This decision must await the upcoming trial. We are mindful that the Oklahoma Court’s pronouncement was not rendered until after the District Court had granted summary judgment in the case at bar. In view of this, the action must necessarily be remanded for trial on the issue of products liability.

Nor is the plaintiff Sterner necessarily foreclosed from asserting the doctrine of Manufacturers’ Products Liability because it is a corporate entity which had contract negotiations with the defendant. Although plaintiff may be considered an expert in the field of aviation generally, there is no evidence to establish plaintiff’s specific expertise in the manufacture of airplane engines or to preclude it from being classified as a consumer in the purchase of the engine in question. This issue must also await a trial and full development of the facts.

Kirkland v. General Motors Corp., supra, compels the conclusion which we have reached. The products liability law established by it operates prospectively as to all cases set for trial after April 23, 1974 and must therefore apply to the present action upon remand.

III.

We next consider whether the warranty exclusion or. limitation clause also precludes an action in negligence. On this we conclude that it does not.

Although a party to a contract may limit or eliminate liability for his own negligence if he is on an equal bargaining footing with the other contracting parties, see Mohawk Drilling Co. v. McCullough Tool Co., 271 F.2d 627 (10th Cir. 1959), at the same time, such contractual provisions are not the favorites of the law and hence are strictly construed. Standard Ins. Co. of New York v. Ashland Oil and Refining Co., 186 F.2d 44 (10th Cir. 1950); Gulf C. & S. F. Ry. Co. v. Anderson, 120 Okl. 60, 250 P. 500 (1926). Based on this judicial approach to the subject, a necessary requisite to recognition of the negligence disclaimer clause is that such a provision must be clear, explicit and unambiguous in its intention to exculpate a contracting party from the consequences of its own negligence. Standard Ins. Co. of New York, supra.

The particular facts of a case are capable of changing the decision as to whether liability in negligence is limited. See Kansas City Power and Light Co. v. United Telephone Co. of Kansas, 458 F.2d 177 (10th Cir. 1972). Under some circumstances public policy prevents the enforcement of such contractual provisions, see Gulf C. & S. F. Ry. Co. v. Anderson, supra, and the particular form of the contractual language also affects the result. See Standard Ins. Co. of New York, supra. If the disclaimer is not explicit in its terms it cannot be effective to limit liability. See Champlin v. Oklahoma Furniture Manufacturing Co., 269 F.2d 918 (10th Cir. 1959).

It seems clear, therefore, in the case at bar that the language referring as it does only to warranties cannot possibly engage and exclude an action in negligence. It fails here for lack of explicit language evidencing intent to exclude a negligence action. Therefore, we must hold that the trial judge’s ruling embracing negligence as well as warranty is erroneous. We recognize, of course, that there may be no negligenee action under the facts of the case, when those facts are finally developed, and we are to be understood as saying only that the contract does not preclude the assertion of such a remedy.

IV.

Defendants contend that plaintiff’s failure to file affidavits in response to the motion for summary judgment constituted non-compliance with Rule 56(e) and thereby compelled the court to grant summary judgment.

We must disagree with defendants’ contention. The record reveals that the defendants supported their motion for summary judgment with uncontroverted requests for admissions of fact that the aircraft engine operated satisfactorily for 538 flying hours and for more than one year after the sale. However, the admission of these particular facts does not preclude the existence of other genuine questions of fact in the case, nor does it remove the issues-of negligence or strict liability. The mere fact of continuous safe use of a product is not by itself conclusive evidence that the product was not defective. See Pryor v. Lee C. Moore Corp., 262 F.2d 673 (10th Cir. 1958). Therefore, despite plaintiff’s failure to file opposing affidavits, there still exist material questions of fact and law to be determined in the case at bar so that the trial court acted prematurely in granting defendants’ motion' for summary judgment on the issues of negligence and strict liability. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Riggs v. British Commonwealth Corp., 458 F.2d 449 (10th Cir. 1972).

Accordingly, the judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

      . The Oklahoma Supreme Court issued an earlier opinion in Kirkland on January 22, 1974. This opinion was withdrawn and replaced by the present, revised opinion. The sole revision is contained on page 1365, clarifying the status of the breach of implied warranty theory relied upon in Marathon Battery.

      . The Court in Kirkland quoted with approval portions of Comment m to the Restatement of Torts 2d § 402A, which states:
      The basis of liability ... is not governed by the provisions of the Uniform Sales Act, or those of the Uniform Commercial Code, as to warranties . . . The consumer’s cause of action does no't depend upon the validity of his contract with the person from whom he acquires the product, and it is not affected by any disclaimer or other agreement, whether it be between the seller and his immediate buyer, or attached to and accompanying the product into the consumer’s hands.

      . The pertinent portion of Rule 56(e) provides that:
      When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.


author: BRIGHT, Circuit Judge.

text:
    RESERVE LIFE INSURANCE COMPANY and Midland National Life Insurance Company, Appellants, v. PROVIDENT LIFE INSURANCE COMPANY et al., Appellees.
    No. 73-1241.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 16, 1973.
    Decided June 21, 1974.
    As amended on Denial of Rehearing July 29, 1974.

      Alan L. Austin, Watertown, S. D., for appellants.
    John A. Zuger, Bismarck, N. D., for appellees.
    Before LAY and BRIGHT, Circuit Judges, and EISELE, District Judge.

        G. THOMAS EISELE, District Judge, Eastern District of Arkansas, sitting by designation.

   BRIGHT, Circuit Judge.

This lawsuit originates in the efforts of management and directors of Provident Life Insurance Company (Provident), a North Dakota insurance corporation, to thwart attempts by outside interests to obtain a controlling interest in the company. In 1955, the principal officers and certain stockholders of Provident organized a voting trust for a 15-year term expiring November 15, 1970. The trust eventually procured the voting control of more than 60 percent of Provident’s common stock. Prior to the trust’s scheduled expiration date, the trustees sought permission from the trust beneficiaries to extend the trust for an additional 10 years to November 14, 1980. Upon solicitation, about two-thirds of the existing holders of voting trust certificates in Provident, representing 42.44 percent of the common stock of Provident, agreed to the extension.

During this solicitation, appellants Reserve Life Insurance Company (Reserve), a Texas insurance corporation, and Midland National Life Insurance Company (Midland), a South Dakota insurance corporation and a wholly owned subsidiary of Reserve, attempted to block the extension by contacting Provident shareholders and urging them to refuse to consent to the extension. This lawsuit is an adjunct of this attempt and was brought by Reserve and Midland to declare invalid the trustees’ actions in obtaining consents for the extension of the voting trust and to require dissolution of the voting trust. The action rests on allegations that, in soliciting for an extension and extending the voting trust, appellee-trustees and Provident violated the Securities Act of 1933 (15 U.S.C. §§ 77a-77aa), the Securities Exchange Act of 1934 (15 U.S.C. §§ 78a-78hh), and various provisions of the “blue sky” laws of North Dakota and other states.

The district court, Judge Ronald N. Davies,, presiding, denied Reserve and Midland relief. This appeal followed. Federal jurisdiction is established since the complaint in part alleges violations of federal securities statutes. The state claims are justiciable in this proceeding as proper matters for pendent jurisdiction.

During the pendency of proceedings in the district court, Reserve and Midland asked the Securities and Exchange Commission to intervene. Representatives of the Commission refused, and thus the district court did not have the benefit of the Commission’s views. Because of the novelty of some of the questions, we invited the SEC to submit its views by way of an amicus curiae brief. The Commission agreed and filed a memorandum with respect to the applicability of the 1933 and the 1934 Securities Acts. This memorandum generally supports the views of the appellants. The appellees have been given an opportunity to respond to the amicus curiae brief and the Commission has filed a reply memorandum. We have taken these additional briefs into consideration.

On appeal, Reserve and Midland now reassert their contentions, previously considered but rejected by the trial court, that:

1) The extension of the voting trust was invalid under applicable provisions of North Dakota law.
2) The solicitation of consents to the extension of the voting trust was invalid because neither the voting trustees nor Provident registered the Provident voting trust agreement under the Securities Act of 1933.
3) The solicitation of consents to the extension of the voting trust was invalid since neither the trustees nor Provident undertook to register the Provident voting trust agreement under various state “blue sky” laws.
4) The trustees failed to register the Provident voting trust agreement under provisions of the Securities Exchange Act of 1934 as amended, and thus, solicitation of the consents to extend the voting trust agreement violated the proxy regulations issued by the Securities and Exchange Commission under the 1934 Act.

We sustain the district court on the first three issues, but reverse and remand on the fourth. We examine the factual background and the proceedings in the trial court.

I.

BACKGROUND

The trial court found that the purpose of the 1955 Provident voting trust was to “stabilize [Provident’s] operations, and prevent raids and take-overs.” Approximately 64 percent of Provident's stockholders joined this trust by depositing their stock with the trustees and receiving voting trust certificates in exchange. Provident filed a registration statement for the voting trust certificates pursuant to the Securities Act of 1933.

Although the voting trust expired on November 15, 1970, it contained a provision for the extension of the trust reading:

Extension of Voting Trust. The Trustees and any and all of the Stockholders becoming parties hereto may, by mutual consent, and from time to time, agree to extend said trust and the terms of this agreement. Any individual stockholder not earing to join in the extension of said trust and the terms of this agreement may on any expiration date surrender his or her Voting Trust Certificate or Certificates and receive a certificate of stock of Provident Life Insurance Company for the number of shares to which he or she is entitled.

During 1969, Provident’s directors, as trustees of the voting trust, determined that it was in the corporation’s best interests to extend the voting trust for an additional 10 years. This decision was influenced in part by the announced takeover attempts planned by Reserve and Midland and their Texas parent corporation, Sammons Enterprises, Inc. Accordingly, beginning early in December of 1969, the trustees, with the help of Provident personnel, solicited existing members of the voting trust for their consent to a 10-year extension of the trust.

As a preliminary to their attempts to persuade voting certificate holders to deny their consent to any extension of the trust, Reserve and Midland attempted to procure names and addresses of the members of the voting trust as well as names and addresses of shareholders of the corporation. Initially, Reserve made a written demand to inspect and copy such lists. When this demand was refused, Reserve and Midland instituted lawsuits in North Dakota and in Minnesota state courts. The Minnesota state court dismissed the suit in deference to the action being brought in North Dakota, and Reserve and Midland eventually succeeded in obtaining a stockholders’ list from the North Dakota state court. They did not, however, succeed in obtaining the specific names and addresses of members of the first voting trust agreement. Although the trustees filed copies of the voting trust agreement with Provident, including copies of the consents obtained from members of the voting trust, Reserve and Midland could not read the signatures on these documents in some instances nor find any of the addresses because the mailing labels had been removed from the consent forms.

Reserve, Midland, and Reserve’s subsidiary, American Security Life Insurance Company, had purchased a number of the 1955 voting trust certificates from certificate holders. Reserve and Midland did not consent to the extension of the trust. During the pendency of this case in the trial court, Reserve and Midland exchanged all of their expiring voting trust certificates for Provident common stock. Additionally, Reserve and Midland own a substantial block of shares of Provident common stock and several voting trust certificates in the extended voting trust which were acquired in open market transactions. Reserve and Midland, however, did not acquire any of these voting trust certificates from the trustees of the voting trust or from Provident.

Neither the trustees nor Provident filed any registration statement for the extended voting trust certificates with the SEC or any state securities commission. Reserve and Midland, however, contend that Section 6 of the Securities Act of 1933, 15 U.S.C. § 77f, and Section 12 of the Securities Exchange Act of 1934, 15 U.S.C. § 781, required the filing of registration data. Moreover, if the 1934 Act required registration, appellants contend also that soliciting the consents to the extension of the voting trust violated the SEC rules governing proxy solicitation. Finally, appellants contend that registration was required in all the states in which solicitations were made by the trustees. With this background, we turn to a discussion of the matters raised on appeal.

II.

THE VALIDITY OF THE VOTING TRUST UNDER NORTH DAKOTA LAW

The relevant North Dakota statute relating to voting trusts, N.D.Cent.Code § 10-19-35, reads as follows:

Voting Trust. — Any number of shareholders of a corporation may create a voting trust for the purpose of conferring upon a trustee or trustees the right to vote or otherwise represent their shares, for a period of not to exceed ten years, by entering into a written voting trust agreement specifying the terms and conditions of the voting trust, by depositing a counterpart of the agreement with the corporation at its registered office, and by transferring their shares to such trustee or trustees for the purpose of the agreement. The counterpart of the voting trust agreement so deposited with the corporation shall be subject to the same right of examination by a shareholder of the corporation, in person or by agent or attorney, as are the books and records of the corporation, and shall be subject to examination by any holder of a beneficial interest in the voting trust, either in person or by agent or attorney, at any reasonable time for any proper purpose.

Reserve and Midland make two contentions in conjunction with this statute: (a) that the extension of the voting trust violated the 10-year statutory limitation, and (b) that because the trustees removed mailing labels from the consents to the extension of the trust agreements, the trustees thereby failed to file a requisite “counterpart of the voting trust agreement.” The district court rejected both of these contentions and held the extension of the voting trust valid and the filings in compliance with N.D.Cént.Code § 10-19-35. We find no North Dakota case law pertinent to the issues raised, and appellants have presented no persuasive authority contrary to the determination of the trial court.

North Dakota enacted § 10-19-35 in 1957. The parties entered the initial voting trust agreement two years earlier. Appellees thus contend that the 10-year limitation of the statute does not operate retrospectively upon the 1955 trust. We agree. See Western Pac. R.R. v. Baldwin, 89 F.2d 269 (8th Cir. 1937); Oppenheimer v. Cassidy, 345 Ill.App. 212, 102 N.E.2d 678 (1951).

The second issue is more troublesome. Although an underlying purpose of § 10-19-35 may be the disclosure of adequate information about a voting trust to corporate shareholders and other members of the trust, the statute specifies without helpful elaboration that “a counterpart of the agreement” be deposited with the corporation. In light of this apparent obscurity within the statute and in the absence of any relevant North Dakota case law, we defer to the trial court’s experience in interpreting North Dakota law and its construction of the statute here in question. See Luke v. American Family Mutual Insurance Co., 476 F.2d 1015, 1019 n. 6 (8th Cir. 1972) (original panel opinion), cert. denied, 414 U.S. 856, 94 S.Ct. 158, 38 L.Ed.2d 105 (1973). Thus, we accept the trial court’s conclusion that the filing of a true copy of the trust agreement and copies of the executed consents to the extension, even though without addresses, effected compliance with the terms of § 10-19-35.

III.

REGISTRATION UNDER THE 1933 ACT AND STATE LAWS

Section 5 of the Securities Act of 1933, 15 U.S.C. § 77e, in general makes it illegal to utilize the mails or other means of interstate transportation or communication in the sale or purchase of securities unless a registration statement for these securities has been filed with the SEC. But § 3(a)(9) of the 1933 Act, 15 U.S.C. § 77c(a)(9), exempts from registration:

[a]ny security exchanged by the issuer with its existing security holders exclusively where no commission or other remuneration is paid or given directly or indirectly for soliciting such exchange[.]

Reserve, Midland, and the SEC in its amicus brief contend that this exemption is inapplicable, while Provident and the trustees'argue the contrary. As a preliminary matter, Provident and the trustees assert that Reserve and Midland lack standing under the 1933 Act to bring this action since those parties did not purchase the securities here in question from the issuer-trustees or from Provident. We considered a similar issue in Greater Iowa Corp. v. McLendon, 378 F.2d 783 (8th Cir. 1967). There we held that the term “purchasers” as used in § 12, 15 U.S.C. § 771, the remedy section for private litigants under the 1933 Act, was limited only to those purchasers of such voting trust certificates who were in privity with the original issuer. Although the circumstances here may be distinguishable from those in Greater Iowa, plaintiffs face a serious question of standing to obtain relief under the' 1933 Act. The district court considered the merits of the § 3(a)(9) claim for exemption and so shall we, assuming arguendo that standing does exist in order to review the district court’s ruling. Since, as we will explain below, the extensions of the voting trust certificates are exempt from registration under the 1933 Act, appellees do not suffer any prejudice by our review of the merits.

The SEC as well as Reserve and Midland take the position that the renewal of the voting trust and the resultant issuance of amended or new voting trust certificates does not constitute an exchange of securities by an “issuer with its existing security holders” within § 3(a)(9) but instead amounts to the issuance of a new security required to be registered as prescribed by § 6 of the 1933 Act, 15 U.S.C. § 77f. To reach this result, they argue that the new and old trusts must be considered separate legal entities under the 1933 Act, regardless of whether state law would characterize the new and old trusts as a continuing single entity. This conclusion rests on reasoning that the original voting trust terminated as an entity in 1970 because the trustees of the existing trust could not compel any certificate holder to participate in any extension of the trust.

Additionally, the Commission argues that since the beneficent purpose of the 1933 Act is to promote full disclosure of information thought necessary for informed investment decisions, see Securities & Exchange Commission v. Ralston Purina Co., 346 U.S. 119, 124-125, 73 S.Ct. 981, 97 L.Ed. 1494 (1953), the § 3(a)(9) exemption ought to be construed narrowly in order to protect investors such as the present holders.of extended trust certificates who should be entitled to the same safeguards afforded shareholders who contemplated exchanging shares for the original voting trust certificates.

We would agree with the contention made by appellants and the Commission if the 1955 voting trust said nothing about an extension. Here, however, the original voting trust certificates contained an express provision for extension. Thus, by this language, the parties added an element of flexibility to the initial 15-year time period and evidenced an intent to participate in the voting trust arrangement for such time period as might be reasonably necessary to protect against corporate raiding.

We also note that Provident advised the Denver regional office of the SEC of plans by it and the trustees to rely on the § 3(a)..(9) exemption from registration in planning to obtain consents for an extension of the voting trust for an additional 10 years. Neither Provident nor the trustees received any advice to the contrary from that office. Additionally, one of the attorneys for the Commission informally expressed views to Reserve and Midland, who were then asking the Commission to take steps to stop the solicitation, that the § 3(a)(9) exemption applied to the extension of the voting trust. We mention these matters not as acts binding upon the Commission but as illustrations of the reasonableness of Provident’s reliance on the exemption theory under the circumstances.

In considering whether Provident and the trustees qualify for the exemption under § 3(a)(9) in this case, we observe the following: (1) the trustees contacted only the holders of existing voting trust certificates; (2) these certificate holders received no new certificates but rather the old certificates were stamped to show the change in the trust termination date; (3) the voting trust itself was not materially changed except for its extension — each voting trust certificate holder retained the same equitable interest in the corporation as before; and (4) according to the trial court findings, no commission or other remuneration has been paid or given, directly or indirectly, for soliciting such exchange.

In sum, the conduct of the trustees seems to fall within the literal language of the exemption provided by § 3(a)(9). The terms of the initial trust which contemplated the likelihood of a continuation beyond 15 years was in fact carried out. Under all the circumstances, we think it was proper for the trial court to factually find and legally conclude that a single continuing trust existed and that the issuer-trust exchanged securities with its existing security holders within the meaning of the exemption from registration provided by § 3(a)(9) of the Securities Act of 1933.

IV.

STANDING AND EXEMPTION UNDER STATE LAWS

Questions of standing and of the applicability of similar exemptions arise under state securities laws. The trustees or Provident’s employees on behalf of the trustees made solicitations for “consents” in 37 states. According to representations made in appellees’ brief, none of the state laws authorize a private remedy to parties not in privity with the seller for the failure to register a security. Thus the standing issues represent a serious obstacle to appellants’ claims arising under the state statutes. In any event, assuming standing, the state laws applicable here provide for an exemption essentially identical to the § 3(a)(9) exemption in the 1933 federal enactment.

We note that the Commissioner of Securities of the State of North Dakota advised Provident that no registration was required under provisions of the North Dakota securities laws by reason of an exemption similar to § 3(a)(9) contained in the North Dakota securities laws. See N.D.Cent.Code § 10-04-06(7). The South Dakota Commissioner of Securities advised Provident that the solicitation for renewal of the existing voting trust was exempt from registration in South Dakota. We find it unnecessary to examine the “blue sky” laws in all other states in which the solicitations took place. Reserve and Midland make no showing that it acquired any voting trust certificates in any state other than North Dakota and South Dakota. Moreover, appellants have not furnished us with the provisions of any other state statute which might provide a basis for a declaration of invalidity of the voting trust certificates held by them. Accordingly, we believe that these state laws exempt Provident or the trust from registration in the same manner as the § 3(a)(9) exemption, and we therefore sustain the district court’s ruling that no violation is shown of state “blue sky” laws.

V.

SECURITIES ACT OF 1934

Appellants and the SEC contend that if a single continuing voting trust is deemed to exist for the extended period of the trust, the trust was required to register under § 12(g) of the Securities Exchange Act of 1934, 15 U.S.C. § 78l (g). Concomitantly, they assert that the voting trustees, in seeking to extend the voting trust, solicited a “proxy or consent or authorization” in contravention of § 14(a) of the Act, 15 U.S.C. § 78n(a) and the Commission’s proxy rules, Rule 14a-l et seq., 17 C.F.R. § 240.14a-l et seq.

The trial court found that there was no duty to register the voting trust certificates and thus no need for compliance with the proxy requirements. We examine these contentions in light of our earlier determination made in Part III of this opinion concerning the § 3(a)(9) exemption under the 1933 Act that the voting trust should be considered a single continuing trust extending beyond the initial 1970 termination date.

Absent an exemption, § 12(g) of the 1934 Act requires an “issuer” whose securities are traded “by use of the mails or any means or instrumentality of interstate commerce” to register equity securities if its “total assets” exceed one million dollars and if the class of equity securities is held of record by 500 or more persons. An “issuer” includes the trustees of a voting trust under § 3(a)(8) of the 1934 Act, 15 U.S.C. § 78c(a)(8), and according to Rule 3all-1, 17 C.F.R. § 240.3all-l, an “equity security” includes voting trust certificates.

The record establishes that more than 500 persons held the certificates issued by the original trust and that more than 500 persons now hold the certificates issued by the extended trust. Therefore, if the voting trust holds “total assets” exceeding one million dollars, its securities are required to be registered with the Commission pursuant to § 12(g). Of course, the trust itself holds no assets except the stock certificates for which the trustees exercise only voting rights and possess bare legal title. Section 12(g)(5) of the 1934 Act, 15 U.S.C. § 781(g)(5), however, gives the Commission the power to define “total assets” for the purposes of § 12(g) and the Commission has by rule provided that the total assets of an issuer whose securities are deposited in the voting trust shall also be deemed to be the “total assets” of the trust. See Rule 12g5-2, 17 C.F.R. § 240.12g5-2. Since the total assets of Provident Life Insurance Company, the original issuer, exceed $84,000,000, the original trust, which held approximately 64 percent of Provident’s common stock, and the renewed trust, which now holds about 42 percent of its stock, easily meet the “total assets” requirement of § 12(g), as defined by the Commission rules. Accordingly, under these rules, the district court erred in determining that the trust held no assets.

To be sure, the voting trust certificates which were extended may be viewed as securities issued by Provident, a life insurance company, and thus exempt from the registration requirements of § 12(g) pursuant to § 12(g)(2)(G), 15 U.S.C. § 781(g) (2) (G), which creates an exemption from registration for “any security issued by an insurance company.” The availability of this exemption, however, depends specifically upon the applicability of state regulation with respect to annual reports, proxy solicitations, and disclosure of securities transactions by officers, directors, and substantial shareholders. See § 12(g) (2) (G) (i), (ii), and (iii), 15 U.S. C. § 781(g) (2) (G)(i), (ü), and (iii). Nevertheless, while the statute may manifest Congress’ assumption that state regulation may be an adequate basis for the exemption of an insurance company’s stock, there is no suggestion in the statute or its legislative history that such state regulation provides an adequate substitute for registration of a voting trust that holds an insurance company’s stock. Thus we hold that the exemption contained in § 12(g)(2)(G) is unavailing to the trustees of the voting trust and that the provisions of § 12 of the Securities Exchange Act require the trustees to register the voting trust certificates.

The obligation to register under § 12 brings into play the provisions of § 14(a) of the 1934 Act, 15 U.S.C. § 78n(a), which reads in relevant part:

It shall be unlawful for any person * * * in contravention of such rules and regulations as the Commission may prescribe * * * to solicit * * * any proxy or consent or authorization in respect of any security (other than an exempted security) registered pursuant to section 781 [of the 1934 Act]. (Emphasis added).

With respect to § 14(a), the district court found that if there was a solieitation it was a solicitation by the trustees in respect of the Provident Life common stock, which was to be redeposited in the trust, and not in respect of the trust certificates. Thus the court held § 14(a) inapplicable in this case because the underlying Provident common stock as stock of an insurance company is exempt from registration under § 12(g) of the 1934 Act.

The creation and the extension of the voting trust does amount to a solicitation of a proxy in respect to securities deposited with the trustees. We so held in Greater Iowa Corp. v. McLendon, supra, 378 F.2d at 786. To that extent, the district court was correct.in stating that there was a solicitation in respect of the Provident Life stock when the defendants sought to extend the trust and, thus, the transaction fell outside the purview of § 14(a). But a further question is presented under the particular facts of this case — whether the solicitation was also in respect of the trust certificates — as Reserve and Midland contend. That issue was not resolved in Greater Iowa.

Here, as we have already held, the extension of the Provident voting trust constituted a continuation of the initial security; thus the extension of the term of the old trust certificates was exempt from registration pursuant to § 3(a)(9) of the Securities Act of 1933. It follows that when the voting trustees solicited the proxy, that is, the “consent or authorization” of certificate holders to participate in the extended term of the trust, those solicitations were in respect of the trust certificates, as well as in respect of the Provident Life securities.

We think that the legislative policy underlying enactment of § 14(a) of the 1934 Act supports this legal conclusion. In Greater Iowa, we commented that:

The purpose of [§ 14(a)] becomes clear, to provide full and honest disclosure by those who are seeking to maintain or gain control of a corporation through solicitation of the corporate voting rights of the shareholders. Corporate suffrage is an important incident of corporate ownership and is a right deserving of careful protection. Consequently, standards of conduct have been established for parties who seek the voting rights of others, and all contestants for these voting privileges are held to the same high standard of fair play and open disclosure. [378 F.2d at 795.]

See J. I. Case Co. v. Borak, 377 U.S. 426, 431-432, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). Moreover, in commenting on the congressional intent to give the terms “proxy,” “consent,” and “authorization” the broadest meaning necessary to effectuate the 1934 Act’s salutary purposes, we observed in Greater Iowa:

By including all of these words in the disjunctive, we believe Congress intended to cover the entire field of solicitation for corporate control and all of the various solicitation situations which might arise from time to time, whether conventional, novel, irregular or unorthodox. [378 F.2d at 796.]

Certainly here the solicitation for the extension of the terms of the trust constituted a solicitation for the trustees’ right to exercise indirect control over the corporation for many years since the trustees thereby obtained a continuation of the power to ensure re-election of present directors or replacements friendly to Provident’s management.

We hold solicitations for the extension of the voting trust in this case amounted to solicitations of proxies and such conduct came within the strictures of the proxy rules as promulgated by the SEC. See Rule 14a-l et seq., 17 C.F.R. § 240.14a-l et seq. Under these rules, an atmosphere of “fair play” must pervade the solicitation of proxies so that in struggles for corporate control like the present one, competing interests are furnished equal opportunities to commu-' nicate with and thereby influence the shareholders in the exercise of their corporate suffrage rights. Specifically, the SEC has established the requirement that when management of an issuer conducts or intends to conduct a proxy solicitation and receives a written request by a security holder entitled to vote on the matter, management must either mail opposition material of the security holder to enfranchised security holders see Rule 14a-7(b)(l) and (2), 17 C.F.R. § 240.14a-7(b)(1) and (2), or furnish the security holder with a reasonably current list of the names and addresses of such security holders and other interested persons, see Rule 14a-7(c), 17 C.F.R. § 240.14a-7(c). Here, however, Provident’s management and the trustees refused to furnish to Reserve and Midland the names of stockholders, except on order of the North Dakota court, and, successfully resisted the efforts of appellants to obtain a list of the names and addresses of the certificate holders of the voting trust. As a result of this, Reserve and Midland were effectively precluded from an equal opportunity to communicate with the participants of the trust, contrary to the purpose intended by the Commission’s proxy rules and § 14(a).

VI.

REMEDY FOR VIOLATING THE 1934 ACT

Reserve and Midland request that we declare the consents to the extension of the voting trust agreement void or voidable, that we restrain and enjoin the appellees from acting under the terms of the trust agreement, and that we require provident and the trustees to make available to appellants the names and addresses of those persons presently holding voting trust certificates in the event further solicitation is permitted.

In suits to redress violations of § 14(a) of the 1934 Act, federal courts under their equitable powers may grant all relief necessary to effectuate the congressional purposes of the Act. See J. I. Case Co. v. Borak, supra. Cf. Securities and Exchange Commission v. Transamerica Corp., 163 F.2d 511 (3d Cir. 1947), cert. denied, 332 U.S. 847, 68 S.Ct. 351, 92 L.Ed. 418 (1948).

Section 29(b) of the 1934 Act, 15 U.S.C. § 78cc(b), affords a specific remedy relative to contract rights, and reads in pertinent part:

(b) Every contract made in violation of any provision of this title or of any rule or regulation thereunder * * * shall be void (1) as regards the rights of any person who, in violation of any such provision, rule, or regulation, shall have made or engaged in the performance of any such contract * * *.

This section has been construed to create a rule of voidability at the option of an innocent party. See Greater Iowa Corp. v. McLendon, supra, 378 F.2d at 792, and cases cited therein.

Reserve and Midland hold voting trust certificates which they obtained by assignment. According to the terms of the voting trust agreement, “[e]very transferee of a Trust Certificate or Certificates issued hereunder shall, by the acceptance of such Trust Certificate or Certificates, become a party hereto with like effect as though an original party [to the agreement].” Thus, we think it clear that in this ease appellants Reserve and Midland as assignees acquired the contractual rights of their assignors and have become parties to the contract. As such, under the statute, they may avoid the limiting terms of the extended voting trust.

As previously noted, the Provident voting trust was initially formed and its term later extended to prevent the raiding of corporate control by such 'groups as Reserve, Midland, and their parent company, Sammons Enterprises, Inc. The members of that voting trust (other than appellants) may very well wish to continue existing arrangements with the trustees to resist attempts by appellants or others to gain control of Provident. The trial court may take cognizance of this continued effort by shareholders of Provident to present a common front against plaintiffs’ efforts to take over their company. Thus, in the exercise of its equitable discretion, the trial court may give Provident and the trustees an opportunity to reaffirm the voting trust with the present certificate holders, other than Reserve and Midland, subject, however, to the requirements of Rule 14a-l et seq.

Accordingly, we remand this case for the entry of a judgment in conformity with this . opinion. Should Provident and the trustees seek permission to attempt to obtain reaffirmance of the voting trust with its certificate holders, the district court shall pass on such application and if approved shall enter such orders as may be appropriate to assure that full, fair, and complete disclosure of information is afforded all voting certificate holders by the appellees as well as by appellants. The trial court should issue such other orders as will protect the rights of all parties and retain the status quo of the voting trust, except with respect to the extended voting trust certificates heretofore acquired by Reserve and Midland, pending any resolicitation. As to voting trust certificates obtained by Reserve and Midland prior to the filing of this opinion, Provident will be required to exchange them for the underlying common stock represented by these certificates.

We remand with no costs assessed against either party.

Remanded.

      . Dakota National Bank is made a nominal party because it is the depository of the shares of stock represented by the voting trust certificates.

      . Provisions of the North Dakota Century Code call for a corporation to make available for examination by a shareholder to the same extent as books and records of such corporation “[t]he counterpart of the voting trust agreement so deposited with the corporation.” N.D.Cent.Code § 10-19-35.

      . Before December 22, 1969, Reserve owned all of the common stock of American Security Life Insurance Company. On December 31, 1969, and prior to the institution of this lawsuit, the latter company was merged into Reserve, thereby making Reserve the owner of all of the Provident voting trust certificates formerly held by American Security.

      . Although no registration was made at times here material, the -trustees at the suggestion of an SEC staff member, filed a registration statement in February of 1971 relating to the voting trust certificates as extended to 1980 under § 12(g) of the 1934 Act, 15 U.S.C. § 78i(g). This registration became effective April 10, 1971. The trustees made this registration under protest, asserting the inapplicability of § 12 to the trust.

      . See § 14(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n(a), and the Commission’s proxy rules promulgated thereunder, Rule 14a-l et seq., 17 C.F.R. § 240.14a-l et seq., discussed in Part V of this opinion infra.

      . In conjunction with this section, the Commission has promulgated Rule 149, 17 C.F. R. § 230.149, which attempts to further explain the term “exchanged” as used in § 3(a)(9) as follows:
      The term “exchanged” in section 3(a)(9) * * *, shall be deemed to include the issuance of a security in consideration of the surrender, by the existing security holders of the issuer, of outstanding securities of the issuer, notwithstanding the fact that the surrender of the outstanding securities may be required by thé terms of the plans of exchange to be accompanied by such payment in cash by the security holder as may be necessary to effect an equitable adjustment, in respect of dividends or interest paid or payable on the securities involved in the exchange, as between such security holder and other security holders of the same class accepting the offer of exchange.

        . But see Kinsey v. Knapp, 154 F.Supp. 263 (E.D.Mich.), rev’d on other grounds, 249 F.2d 797 (6th Cir. 1957), cert. denied, 356 U.S. 936, 78 S.Ct. 778, 2 L.Ed.2d 812 (1958), which permitted an assignee of shares bound by a voting trust to maintain a suit attempting to void the voting trust agreement because it was not registered under the Securities Act of 1933. However the court’s decision seemed to be grounded more in equity than in the statutory provisions of the Act. Cf. Corporation Trust Co. v. Logan, 52 F.Supp. 999 (D.Del.1943).

      . Two leading authorities on securities laws have indicated that an extension of a previously existing voting trust falls within the § 3(a) (9) exemption when the original trust agreement contains a provision for a renewal of the trust and there is compliance with the other conditions of the section. See 1 Loss, Securities Regulations 574 (2d ed. 1961) ; H. Sowards, The Federal Securities Act in 11 Business Organizations § 3.10 at 20-1 n. 56 (1973).

      . As a collateral issue in this lawsuit, Provident has argued that the inaction of the SEC’s Denver office of the applicability of the exemptions under § 3(a) (9) of the 1933 Act, 15 U.S.C. § 77c(a) (9), and the views expressed by the SEC attorney that no registration of the extended voting trust was necessary under § 3(a)(9), binds the Commission and estops that body from taking a contrary position at this time since such opinions were the equivalent of a “no action” letter. We reject this argument. First, a “no action” letter was not issued by the SEO within its authorized procedure nor is it apparent that a “no action” letter was ever requested. See Lowenfels, SEC “No-Action” Letters: Some Problems and Suggested Approaches, 71 Columbia L.Rev. 1256, 1256-58 (1971), and Lowenfels, SE.C No-Action Letters: Conflicts With Existing Statutes, Cases and Commission Releases, 59 Va.L.Rev. 303, 320-21 (1973). At best, Provident received only an opinion of a staff member of the SEC. As such, 17 C.F.R. 202.1(d) comes into play. That regulation in part reads, “opinions expressed by members of the [SEC’s] staff do not constitute an official expression of the Commission’s views * * Cf. Kixmiller v. SEC, 492 F.2d 641 (D.C.Cir. 1974). Moreover, as a general proposition, such inaction does not estop the Commission from assuming a contrary position later. See Section 26 of the 1934 Act, 15 U.S.C. § 78z; Capital Funds, Inc. v. SEC, 348 F.2d 582, 588 (8th Cir. 1965). Cf. SEC v. Culpepper, 270 F.2d 241 (2d Cir. 1959).

      . Eule 3all-l, 17 C.F.R. § 240.3all-l, was promulgated by the Commission pursuant to § 3(a) (11) of the 1934 Act, 15 U.S.C. § 78c(a)(ll), which defines “equity security” to include “any stock or similar security” and authorizes the Commission to further define the term.

      . Although the appellees contend that the Commission lacks authority to so define the term “total assets” of a trust in this manner, we note that § 12(g)(5), 15 U.S.C. § 781(g)(5), permits the Commission to define “ ‘total assets’ * * * as it deems necessary or appropriate in the public interest or for the protection of investors in order to prevent circumvention of the provisions of [§ 12(g)].” We think the adoption of the Commission’s attribution rule relating to trusts is in accord with the purposes stipulated by this statute.

      . Rule 14a-l(d), 17 C.F.R. § 240.14a-l(d), defines the term “proxy” to include “every proxy, consent, or authorization within the meaning of section 14(a) of the [1934] Act.”

      . Since at material times, Reserve or Midland held voting trust certificates which had been obtained from shareholders who initially joined the voting trust in 1955, they were entitled to invoke the applicable provisions of Rule 14a-7,17 C.F.R. § 240.14a-7.

      . The following language from Greater Iowa Gorp. seems most apt to any resolicitation: [W]e do think that any solicitation for proxies or authorizations or consents to a particular course of conduct affecting corporate operation should be conducted under the rules of full, fair and complete disclosure * * *. Management must adhere to this standard and the well-meaning dissidents should do likewise. It is only by the application of this single standard' of conduct that the corporate suffrage of each security holder can be fully protected. In this struggle for corporate dominance or control, a meaningful choice should be presented to the security holder, who is in turn fully armed with a complete and fair disclosure of all relevant information pertaining to the exercise of his corporate suffrage. [378 F.2d at 798.]


author: SWYGERT, Chief Judge. WILLIAM J. CAMPBELL, Senior District Judge

text:
    UNITED TRANSPORTATION UNION GENERAL COMMITTEE OF ADJUSTMENT (ON PROPERTY OF PENN CENTRAL COMPANY), Plaintiff-Appellee, v. George P. BAKER et al., Defendants-Appellants.
    No. 72-1955.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 25, 1973.
    Decided Feb. 22, 1974.
    Certiorari Denied Oct. 15, 1974.
    See 95 S.Ct. 69.

      Robert H. Bierma, Chicago, 111., Hermon M. Wells, Philadelphia, Pa., for defendants-appellants.
    Keith E. Roberts, Lloyd E. Dyer, Jr., Wheaton, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, KNOCH, Senior Circuit Judge, and CAMPBELL , Senior District Judge.

         Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   SWYGERT, Chief Judge.

The trustees of the Penn Central Transportation Company appeal from a decree granting the plaintiff, United Transportation Union, an injunction restraining the defendant railroad from replacing an asserted “crewboard” with computer print-outs.

The union’s claim was that the substitution of “print-outs” for the prior system of notifying railroad employees of work assignments was a unilateral change of the collective bargaining agreement between the union and the railroad, and accordingly gave rise to a “major dispute” between the parties as delineated in section 6 of the Railway Labor Act. 45 U.S.C. § 156. If the union’s position is correct, there would be no question but that the district court had jurisdiction to issue injunctive relief to maintain the status quo in the face of a “major” or section 6 dispute. The railroad asserts that its actions were within the purview of the parties’ collective bargaining agreement and that at most the instant action involves differences arising out of the interpretation of the collective bargaining agreement, that is, a "minor” or section 3 dispute. 45 U.S.C. § 153. In a minor dispute the district court’s assumption of jurisdiction to grant injunctive relief would in general be inappropriate; rather, such a dispute should be deferred to the special competence of the adjustment board, the arbitration machinery specifically mandated by the Railway Labor Act in such circumstances. The threshold question in this action is whether a major or minor dispute is presented by the facts. We find that the circumstances created a minor dispute.

I

The pertinent section of the collective bargaining agreement provided:

8-B-l. Crew boards. Crew boards showing the order in which crews are to go out shall be maintained. At outlying points where a crew board attendant is not on duty throughout an entire calendar day, arrangements shall be made so that trainmen desiring information as to their standing on the crew shall be furnished such information.

Prior to the latter part of 1968, the railroad carried out the crew calling function at the Colehour Yard, located near Whiting, Indiana, by providing a crew dispatcher on the first trick (shift) and yard clerks on the second and third tricks. The crew board at the Colehour Yard consisted of records kept in the form of mimeographed sheets of paper containing a list of regular assignments, one list for each trick. Accompanying the mimeographed lists was a handwritten list of men on the “extra list” who were called as needed. All these records were maintained in ledger books on the second floor of the yard office at Cole-hour Yard. The records were available for inspection by individual employees who desired to check them. In addition to these crew sheets, and the more frequent mode of obtaining information on their status, the employees kept themselves advised of their status by telephone calls to the crew dispatchers or clerks assigned to Colehour Yard. Moreover, the calling of crews for assignments was done by telephone by the crew dispatcher or clerks.

In the latter part of 1968, the railroad made the disputed change in the crew calling function. The change consisted, primarily, of discontinuing the use of the mimeographed and handwritten crew sheets and substituting in their stead computer print-out lists showing the standing of crews and extra men. The crew dispatcher’s function at Colehour was consolidated with that of the crew dispatcher’s at the 59th St. Yard in Chicago, the principal center of crew dispatching activities for the Chicago area. At the Colehour Yard the print-out sheets were posted three times a day prior to the change of shifts, the information emanating from the 59th St. Yard. The “print-out” sheets purportedly contained the same information as the former crew sheets, namely, a list of regular assignments, a list of extra men and information as to where the extra men worked. As before, the employees at the Colehour Yard could contact the crew dispatcher at the 59th St. Yard by telephone to be advised on their standing, and this method continued to be the primary way in which the employees kept current as to their status.

The effective date of the changeover in crew calling functions was February 1, 1969. Following the changeover, union officials complained orally on various occasions about the manner in which the crew calling function was being handled at Colehour. Various complaints were registered by the union about the adequacy of information being posted and the timeliness of the postings. At no time, however, were steps taken by the union to process the alleged violation of section 8-B-l through the established grievance procedure. Two and a half years later, on July 2, 1971, the union filed its complaint in the district court seeking injunctive relief; requesting that the crew calling function be reverted to its previous form prior to February 1, 1969. The union grounded its claim for relief on the contention that the substitution of print-out sheets represented a unilateral change by the railroad of the terms of their collective bargaining agreement with the union plaintiff and created as such a major dispute.

II

The fundamental inquiry in deciding whether to assume jurisdiction to grant injunctive relief is not to interpret the contract; rather, the court must decide whether the asserted contractual defense is frivolous.

Various tests have been applied by the courts as an aid to determining whether a major or minor dispute is present. In United Transportation U. v. Burlington Northern, Inc., 458 F.2d 354, 357 (8th Cir. 1972), the Eighth Circuit declared that, “the test to be applied is that if the contract is reasonably susceptible to the interpretation sought by both the carrier and the union, the dispute is minor and within exclusive adjustment jurisdiction. . . .” The United States Court of Appeals for the First Circuit in Airlines Stewards & S. Ass’n, Lopal 550 v. Caribbean Atl. A., Inc., 412 F.2d 289, 291 (1st Cir. 1969), quoted with approval the test enunciated by the District of Columbia Circuit in Southern Ry. Co. v. Brotherhood of Locomotive Fire & Eng., 127 U.S.App.D.C. 371, 384 F.2d 323, 327 (1967):

[W] e think that, where the railroad asserts a defense based on the terms of the existing collective bargaining agreement, the controversy may not be termed a “major” dispute unless the claimed defense is so obviously insubstantial . as to warrant the inference that it is raised with intent to circumvent the procedures prescribed by § 6 for alteration of existing agreements.

In Switchmen’s Union of North America v. Southern Pacific Co., 398 F.2d 443, 447 (9th Cir. 1968), the Ninth Circuit stated the test in the negative:

It is true, as the union points out, that a controversy, although couched in terms of a disagreement- as to interpretation of a contract, may under some circumstances be regarded as a major dispute. This result may be reached if it can be said that the change being imposed by one side on the other is in nowise contemplated or arguably covered by the agreements.

Analyzed in the light of any of these tests it is ■ apparent that the railroad’s contractual defense, namely, that the substitution of print-outs for the prior system of crew calling was in compliance with section 8-B-l of the parties’ collective bargaining agreement, is not frivolous and that this dispute involves nothing more than a minor dispute, a dispute as to the interpretation and application of the existing agreement.

The agreement between the parties as to the nature of crew boards was framed in quite general terms:

Rule 8-B-l. Crew boards. Crew board's showing the order in which crews are to go out shall be maintained ....

Nothing was stated in the agreement as to the specific nature and substance of a crew board. Prior to the substitution of print-outs the crew board at Colehour was nothing more than a bounded ledger book of mimeographed and handwritten sheets kept on the second floor of the yard house. Can it be said that the railroad’s change to print-outs was not contemplated or arguably covered by the agreement? Is the railroad's contention that the print-outs are crew boards within the terms of section 8-B-l so strained that it can be said that 8-B-l cannot be reasonably susceptible to that interpretation? Is the railroad’s assertion so frivolous and so obviously insubstantial as to warrant the inference that it is raised with intent to circumvent the procedures prescribed by section 6 for alteration of existing agreements? We find that the railroad’s substitution of print-outs is clearly within the realm of a good faith, reasonable interpretation of section 8-B-l of the collective bargaining agreement. It does not follow, however, that this interpretation will be found to be correct. That is a matter for the adjustment board to determine in the light of its expertise and experience with matters relating to the railroad industry.

The union grounds its case on the decision of the Sixth Circuit in United Transport Union, L. 63E v. Penn Central Co., 443 F.2d 131 (6th Cir. 1971), and the district court below utilized that case to arrive at its decision granting the union injunctive relief. The facts in that case were in all relevant aspects identical to those presented here. The Sixth Circuit affirmed the district court’s grant of injunctive relief to the union, restraining the railroad’s substitution of print-outs for the former method of crew calling. The Sixth Circuit held that the substitution of printouts was a unilateral change of working conditions giving rise to a major dispute. With all due respect and deference to our brethren in the Sixth Circuit, we think their decision misconceives the function of a federal court in the context of a major-minor dispute inquiry: the task is not to interpret the contract; rather, it is to determine whether the contractual defense is frivolous. Airlines Stewards & S. Ass’n, Local 550 v. Caribbean Atl. A., Inc., 412 F.2d 289, 291 (1st Cir. 1969). The Sixth Circuit gives considerable attention to what detail a crew board should contain and how the computer print-outs fail to meet those requisites; but no determination is made on the critical question in a major-minor dispute inquiry — whether the railroad’s contractual defense is on its face tenable.

In a similar vein the district court in the case at bar went into a detailed analysis of what a crew board should show and how the print-outs fail to measure up to the expected criteria. And likewise, the district court failed to scrutinize the critical question of whether the railroad’s contract claim is merely color-able.

It is argued by the union that our recent decision in United Transp. U., Lodge No. 621 v. Illinois Terminal R. Co., 471 F.2d 375 (7th Cir. 1972), supports the district court’s decision. That decision is inapposite. Unlike the case here, there the union served a section 6 notice on the railroad six months prior to the railroad’s unilateral attempt to effect new work assignments, during which time the parties characterized and treated the dispute as a major dispute. More significantly, the collective agreement between the parties was silent about work starting points and did not preclude or support the railroad altering the location of work assignments, a situation identical to the Supreme Court’s decision in Detroit & Toledo Shore Line R.R. v. United Transportation Union, 396 U.S. 142, 90 S.Ct. 294, 24 L.E.2d 325 (1969). Relying on Shore Line, we found that a major dispute existed under the circumstances. The concurring opinion found a major dispute due to the fact that the railroad’s actions were admittedly outside the coverage of the contract, that is, neither the railroad nor the union could make a substantial claim that its position was justified by the existing contract. 471 F.2d at 380. The contract was silent. The instant situation is quite to the contrary. The contract is not silent with respect to crew boards. Section 8-B-l is an express provision. Likewise, as previously demonstrated, it cannot be said that the railroad does not make a substantial claim that its position is justified by the existing contract. Accordingly, we are not constrained by our decision in United Transp. U., Lodge No. 621 v. Illinois Terminal R. Co.

In sum we hold that the instant case presents a section 3 dispute. All that is at issue is the interpretation of an existing contract provision. See Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945). This dispute is the type of small or minor difference which seldom leads — or should lead — to a labor strike and for which the arbitration machinery of the Railway Labor Act was specifically designed. 325 U.S. at 724, 65 S.Ct. 1282. The district court failed to stay its hand and erroneously entertained this action granting injunctive relief. Order of Railway Conductors, etc., v. Pitney, 326 U.S. 561, 567, 66 S.Ct. 322, 90 L.Ed. 318 (1946); Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 243, 70 S.Ct. 577, 94 L.Ed. 795 (1950).

The injunctive decree is reversed with direction to dismiss the action.

WILLIAM J. CAMPBELL, Senior District Judge

(dissenting):

Section 8-B-l of the Collective Bargaining Agreement provides that “crew boards showing the order in which the crews are to go out shall be maintained.” For approximately forty years prior to the substitution of “print-out” sheets, the defendant had maintained a “crew board” in book form at its Colehour Yard. Effective February 1, 1969, the railroad unilaterally and without written notice removed this “crew board” and substituted print-out sheets in its place. The majority maintains that the railroad’s bare assertion that print-out sheets are crew boards “is clearly within the realm of a good faith, reasonable interpretation of Section 8-B-l,” and that what is here involved is no more than a dispute over contract interpretation. From this premise, the majority concludes that the instant case presents a section 3 dispute, thus depriving the district court of jurisdiction.

The district court entered detailed findings of fact regarding the characteristics of, and the information provided by the original crew board, and also made findings of fact regarding the inadequacy of the print-out sheets as a substitute. The majority has concluded that this “detailed analysis of what a crew board should show and how the print-outs failed to measure up to the expected criteria” should not have been made. It is with this conclusion that I respectfully disagree.

I am convinced that the district court, . following the Sixth Circuit’s lead in United Transportation Union v. The Penn Central Company, 443 F.2d 131 (6th Cir. 1971), was correct in assuming jurisdiction for the purpose of conducting a full evidentiary hearing. The contract clearly requires that crew boards be maintained and there is no doubt that the railroad unilaterally discontinued use of the Colehour crew board in the form which had been employed for approximately forty years. A major dispute was thus created by the railroad’s action unless the print-outs can be said to constitute a crew board, for if they do not, it follows that crew boards have not been maintained at the Colehour Yard since February 1,1969.

The evidentiary hearing was therefore held not to “interpret” the contract, but rather to determine whether the railroad had initiated a unilateral change in the contract. This determination could only be made on the basis of a “detailed analysis” designed to ascertain whether the computer print-outs could reasonably be considered to constitute a crew board. I fail to see any basis for assuming the reasonableness of the railroad’s bare assertion that the print-outs constitute a crew board, until such time as the district court has had an opportunity to determine the adequacy of the print-outs as a substitute for the crew board formerly maintained.

In essence, the district court found that the use of print-outs so thoroughly failed to achieve the purposes for which crew boards had formerly been maintained that the print-outs could not be said to constitute a crew board within the meaning of Section 8-B-l. The district court therefore properly found that the railroad had made a unilateral change in the contract by discontinuing use of the original crew board, thus creating a major dispute.

Accordingly, I would affirm.

      . As the district court found in United Transportation Union v. Penn Central Company, supra, “The evidence does not reveal a mere dispute over the meaning of the language in the contract, for it clearly shows that the defendant’s print-outs are not just another form of crew board. They are not what a crew board is, and they do not do what a crew board does.” See, 443 F.2d at 132.


author: BROWNING, Circuit Judge:

text:
    Roosevelt RUNNELS, Plaintiff-Appellant, v. David ROSENDALE, M. D., and Roland P. Young, M. D., Defendants-Appellees.
    No. 72-1067.
    United States Court of Appeals, Ninth Circuit.
    June 21, 1974.

      John D. Brophy,-Sacramento, Cal., for plaintiff-appellant.
    Edward W. Bergtholdt, Deputy Atty. Gen., Garrick W. Chock, Sacramento, Cal., for defendants-appellees.

       Honorable Fred M. Taylor, Senior United States District Judge, District of Idaho, sitting by designation.

   OPINION

Before BROWNING and ELY, Circuit Judges, and TAYLOR, District Judge.

BROWNING, Circuit Judge:

Roosevelt Runnels, an inmate of Folsom State Prison, brought this action under 42 U.S.C. § 1983 against two prison medical officials, Dr. Rosendale and Dr. Young, alleging they conducted a hemorrhoidectomy upon his person without his consent and denied him necessary analgesics for a period of five days after the operation, causing him intense and agonizing pain.

Defendants-appellees moved to dismiss for failure to state a claim. They also sought summary judgment on the basis of affidavits tending to show that plaintiff-appellant had signed a written consent to the operation, but that it had been removed from the prison file without authority. Plaintiff-appellant relied upon the verified allegation of his complaint that he “had vigorously and repeatedly refused to give his consent to such an operation.”

The court recognized that a substantial question of fact was presented on the issue of consent, barring summary disposition on this ground. Nonetheless, the court granted summary judgment for both defendants-appellees. Relying on such cases as Church v. Hegstrom, 416 F.2d 449 (2d Cir. 1969), the court concluded that “[t]o state a claim under the Civil Rights Act for failing to supply medical treatment or for improperly providing medical treatment, a plaintiff must allege facts which shock the conscience or constitute some barbarous act,” and held that the conduct of Dr. Young, the attending surgeon, reflected in the complaint and affidavit, did not rise to this level. Summary judgment was granted in favor of Dr. Rosendale, chief medical officer, on the ground that he was charged only with supervision of Dr. Young, and personal involvement in the facts alleged was required for liability under the Civil Rights Act, citing Runnels v. Parker, 263 F.Supp. 271 (C.D.Cal.1967).

Since the court’s decision did not rest upon the affidavits, but rather upon the conclusion that the allegations of the complaint did not state a claim under 42 U.S.C. § 1983, it was “functionally the same” as an order granting a motion to dismiss for failure to state a claim, and must be reviewed as such. 6 Moore’s Federal Practice § 56.02(3), at 2035. Thus, the question is whether “it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See Wiltsie v. California Department of Corrections, 406 F.2d 515, 517 (9th Cir. 1969).

The court below analogized this case to those involving mere differences in opinion between the prisoner and prison medical officials over the proper course of treatment, or allegations of simple malpractice, neither of which is sufficient to state a cause of action under 42 U.S.C. § 1983. Tolbert v. Eyman, 434 F.2d 625 (9th Cir. 1970). But the allegations of this complaint suggest conduct of a different order.

Allegations that prison medical personnel performed major surgical procedures upon the body of an inmate, without his consent and over his known objections, that were not required to preserve his life or further a compelling interest of imprisonment or prison security, may foreshadow proof of conduct violative of rights under the Fourteenth Amendment sufficient to justify judgment under the Civil Rights Act. Although w'e have found no case directly in point, this principle may emerge from at least two relevant lines of authority.

A constitutionally protected right to be secure in the privacy of one’s own body against invasion by the state except where necessary to support a compelling state interest has been recognized. Roe v. Wade, 410 U.S. 113, 153-156, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). This right may be violated by prison medical personnel in the course of treatment of a prison inmate. Mackey v. Procunier, 477 F.2d 877, 878 (9th Cir. 1973). See also Winters v. Miller, 446 F.2d 65 (2d Cir. 1971).

A second line of authority has recognized a constitutional right to be free of unprovoked physical assault by agents of the state while in state custody. Brown v. Brown, 368 F.2d 992 (9th Cir. 1966); Wiltsie v. California Department of Corrections, supra, 406 F.2d 515; Allison v. California Adult Authority, 419 F.2d 822 (9th Cir. 1969). See also Johnson v. Glick, 481 F.2d 1028, 1032-1033 (2d Cir. 1973). Because of a prisoner’s peculiar dependence and vulnerability in respect to medical treatment (see Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972), quoted infra), the right to be secure in one’s person could be violated by the substantial threat to physical security necessarily involved in major surgery, when such surgery is neither consented to nor required for purposes of imprisonment or security.

Without attempting to define the limits of the constitutional right more precisely, the possibility that plaintiff-appellant may prove an intentional, unwarranted invasion of his limited rights of personal security and privacy entitling him to relief under these authorities is certainly not so clearly precluded as to justify dismissal of the complaint for failure to allege a cause of action. Retana v. Apartment, Motel, Hotel & Elevator Operators Union, Local No. 14, 453 F.2d 1018, 1025 (9th Cir. 1972); Harman v. Valley National Bank, 339 F.2d 564 (9th Cir. 1964); Corsican Productions v. Pitchess, 338 F.2d 441, 443 (9th Cir. 1964).

Similarly, the allegations that plaintiff-appellant was left in severe pain for an extended period of time without necessary and available analgesic relief were sufficient to survive a motion to dismiss for failure to state a cause of action under 42 U.S.C. § 1983.

Reading the pro se complaint with the required generosity (Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)), we think that plaintiff-appellant may be alleging he was deliberately caused to suffer intense and agonizing pain through failure to provide him with necessary pain-killers for relief of foreseeable post-operative discomfort. There is no legally significant distinction between the deliberate infliction of pain through a calculated withholding of medication and an unprovoked assault. Johnson v. Glick, supra, 481 F.2d at 1031. Further, for reasons suggested in Fitzke v. Shappell, supra, 468 F.2d at 1076, failure to provide a prisoner with required medical care, even without an intent to cause pain, may violate his constitutional rights. In extreme circumstances, an unjustified refusal to provide required medication in the course of treatment may constitute such a violation. Tolbert v. Eyman, supra, 434 F.2d 625.

We need not decide whether liability under the Civil Rights Act may be based upon the principle of respondeat superi- or. The complaint contains general allegations that both Dr. Rosendale and Dr. Young participated “in all matters leading up to and including the wanton, willful, and malicious performing of the operations upon the body and person of the plaintiff,” and acted “with the full knowledge on the part of the defendants that they were exceeding their authority” (emphasis added). These allegations may be read as charging personal participation by Dr. Rosendale. Defendants-appellees’ affidavits do not attempt to establish that Dr. Rosendale’s role was limited to supervision; the affidavits simply do not address this issue.

Reversed.

      . Rule 56(e), Fed.R.Civ.P., provides:
      When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
      If a complaint is verified, however, as it was in this case, it can be considered as equivalent to an affidavit to the extent that it meets the requirements for affidavits set out in Rule 56(e). 6 Moore’s Federal Practice § 56.11(3), at 2176-77; see Khan v. Garanzini, 411 F.2d 210, 212 (6th Cir. 1969). The allegations of this complaint relating to the absence of consent were specific and clearly based on matters within the personal knowledge of the plaintiff, to which he was competent to testify. As to this issue, therefore, the trial judge properly treated the verified complaint as equivalent to a 56(e) affidavit.

      . The district court relied upon Owens v. Alldridge, 311 F.Supp. 667 (W.D.Okl.1970), but that case appears to have involved a medical emergency. There is no indication that the plaintiff expressly withheld consent. In such a situation, consent might be implied.

      . In Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972), the court said :
      “The logic of these pronouncements is not difficult to perceive. An individual incarcerated, whether for a term of life for the commission of some heinous crime, or merely for the night to ‘dry out’ in the local drunk tank, becomes both vulnerable and dependent upon the state to provide certain simple and basic human needs. Examples are food, shelter, and sanitation. Facilities may be primitive but they must be adequate. Medical care is another such need. Denial of necessary medical attention may well result in disabilities beyond that contemplated by the incarceration itself. The result may be crippling injury, as alleged here, or, as the Stiltner [Stiltner v. Rhay, 9 Cir., 371 F.2d 420] court pointed out, the very deprivation of life itself, since, restrained by the authority of the state, the individual cannot himself seek medical aid or provide the other necessities for sustaining life and health.
      Thus it is that fundamental fairness and our most basic conception of due process mandate that medical care be provided to one who is incarcerated and may be suffering from serious illness or injury. This is not to say that every request for medical attention must be heeded nor that courts are to 'engage in a process of second-guessing in every case the adequacy of medical care that the state provides. But where the circumstances are clearly sufficient to indicate the need of medical attention for' injury or illness, the denial of such aid constitutes the deprivation of constitutional due process” (emphasis in original).