author: GARTH, Circuit Judge.

text:
    UNITED STATES of America, Appellant, v. Tarik Ali BEY a/k/a Warren L. Williams, Appellee.
    No. 73-1785.
    United States Court of Appeals, Third Circuit.
    Argued April 1, 1974.
    Decided June 14, 1974.

      Richard L. Thornburgh, U. S. Atty., James A. Villanova, Kathleen K. Curtin, Samuel J. Orr, III, Asst. U. S. Attys., Pittsburgh, Pa., for appellant.
    Herbert Bennett Conner, John Edward Wall, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for appellee.
    Before VAN DUSEN, WEIS and GARTH, Circuit Judges.
   OPINION OF THE COURT

GARTH, Circuit Judge.

This is an appeal by the government from the District Court’s dismissal of an indictment charging violation of 18 U.S.C. §§ 922(h) and 924(a). The District Court, in dismissing the indictment by its December 4, 1973 order, incorporated therein the provisions of its prior order of August 16, 1973. The grounds for the Court’s dismissal, therefore, can be summarized as: (1) ineffective assistance of counsel, (2) a denial of a speedy trial, and (3) irreparable prejudice “in [defendant’s] opportunities, for concurrent sentence, access to certain rehabilitation opportunities, and in various other ways.” As a consequence, the District Court held that the defendant had been denied both procedural and substantive due process.

I.

Tarik Ali Bey was originally indicted on March 7, 1968, (Criminal No. 68-54) for a violation of 15 U.S.C. § 902(f) and charged with being a convicted felon who caused a firearm to be transported in interstate commerce. The violation was alleged to have occurred on July 3, 1967.

On March 25, 1971, Bey was re-indicted. A superseding indictment was filed charging him, a convicted felon, with wilfully and knowingly receiving a firearm which had been shipped and transported in interstate commerce in violation of 18 U.S.C. §§ 922(h) and 924(a), (formerly 15 U.S.C. §§ 902(f) and 905(a)).

Until July 1972, Bey’s whereabouts were apparently unknown. In July 1972, however, Bey was arrested by state authorities and was incarcerated in Allegheny County Jail. While in state custody, he was placed under federal detainer. On August 28, 1972, attorney Lawrence Zurawsky was appointed as his counsel to represent him in the instant proceeding. Within weeks thereafter, pretrial motions, captioned in indictment No. 71-63, were filed including motions for dismissal of the indictment, discovery, bill of particulars, suppression of evidence, speedy trial, pretrial conference and mental examination.

On October 5, 1972, the Court granted defendant’s motion for a “general continuation of time” in connection with the filing of his briefs supporting all the pretrial motions and appointed Dr. Henninger, a psychiatrist, to examine the defendant. On August 1, 1973, all pretrial motions were heard by the Court. It was at that hearing, that for the first time, Zurawsky claimed he had received the wrong indictment, referring to the superseded indictment No. 68-54. The August 16, 1973 order dismissing the indictment No. 71-63 followed. (See fn. 3, supra).

Neither the record nor the fragments of testimony táken at the August 1, 1973 argument support defendant Bey’s position or the Court’s findings and conclusions. We accordingly reverse.

II.

Bey’s argument seeking to sustain the dismissal of No. 71-63 essentially proceeds as follows:

(a) Either at or after arraignment (September 14, 1972) Bey’s trial counsel (Zurawsky) received from the “government” a copy of the old (68-54) or “wrong” indictment; and that
(b) Bey was thereby prejudiced by having his counsel (without notice of the superseding indictment or its substance) prepare “motions and briefs for approximately one year based upon a superseded indictment”.
(c) Further, says Bey, because of his attorney’s extensive work dealing with the superseded indictment, he, Bey, was not brought to trial within a reasonable time.

To evaluate these contentions, we look to the events and their chronology, as they are revealed by the record.

1. As previously noted, the defendant was placed under federal detainer some time in late July or early August 1972 while awaiting trial on State charges.

2. On August 28, 1972, Zurawsky was appointed as his counsel to represent him in proceedings under the instant indictment. Form CJA 20 (“Appointment and Authority to Pay Defense Counsel”) described Bey’s offense as “possession of a firearm after conviction 18 U.S.C. §§ 922(h) and 924(a)”. That form, as well as the local form for notice of appointment of counsel, bore the criminal docket number of the instant indictment. The local form was mailed to the defendant; the CJA 20 form was mailed to Zurawsky.

3. The notice of arraignment bearing the superseding indictment number was mailed by certified mail to Bey at his prison address and to Zurawsky at his office address in Pittsburgh, Pennsylvania.

4. Thereafter, Bey was arraigned on September 14, 1972. The transcript of the arraignment reveals the following:

“MAGISTRATE SENSENICH:
This is the arraignment for Tarik Ali Bey, a/k/a Warren L. Williams, who has been indicted at Criminal No. 71-63 for a violation of 18 United States Code, Sections 922(h) and 924(a). The defendant is present in Court and is represented by his attorney, Mr. Zurawsky, and the government is represented by Mr. Stanton. Mr. Stanton, you may proceed, and I’ll ask the parties to approach the bench. Would you approach the bench, please.
MR. STANTON:
You are Tarik Ali Bey, a/k/a Warren Williams? And, have you or your counsel received a copy of the indictment returned against you charging you with one count — that on or about July 3, 1967, at Braddock, you having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly and wilfully receive a firearm, a .22 Caliber Revolver which had been shipped in interstate commerce from Denver, Colorado, to Braddock. You know what you’re charged with ?
TARIK ALI BEY:
I don’t understand the terms knowingly and wilfully. Does that mean that I knew that I was breaking the law when I sent for the gun ?
MR. STANTON:
That’s right, yes.
TARIK ALI BEY:
Well, that’s that’s incorrect. I did not.
MR. ZURAWSKY:
But, you do understand, Mr. Bey, that the term knowingly means that you did it with knowledge and you did it with intent to break the law wilfully. Whether or not you did .it doesn’t (inaudible).
TARIK ALI BEY:
I understand what the term means.
MR. ZURAWSKY:
OK
MR. STANTON:
So, to this charge then, this count, to this indictment, how do you wish to plead, guilty or not guilty ?
TARIK ALI BEY:
Not Guilty.
MR. ZURAWSKI:
Ila Jeanne Sensenich, I apparently didn’t receive a copy of the indictment although I saw it previous to this hearing. Mr. Bey had a copy. Do you have an extra one for indigent counsel? (emphasis supplied)
MR. STANTON:
.1 can give it to him.”

5. On the reverse side of the original of the indictment 71-63, the defendant Bey’s signature appears in the section reserved for his plea. Bey’s signature, signifying his “not guilty” plea is written in Arabic. Beneath the script signature the defendant’s name Tarik Ali Bey is subscribed. Zurawsky’s signature appears next to that of the defendant’s.

6. On the defendant’s behalf, Zurawski in the latter part of September 1972 filed a group of motions all captioned under Criminal No. 71-63 (the superseding indictment number). With but a minor exception, the motions filed sought relief and information equally applicable and relevant to both the superseded and the superseding indictments. One of the motions sought a pretrial conference at least ten days prior to trial so that defense counsel could discuss with the Court and the Government the legal and factual issues otherwise “defendant will be deprived of effective assistance of counsel and adequate opportunity to prepare his defense.”

7. The defendant’s motion for a mental examination was filed in October 1972, some few weeks after the filing of his motion for speedy trial. At the same time, and in the same document, Bey asked for a general continuance of time to file his briefs in connection with the pretrial motions.

8. On October 5, 1972 the Court granted Bey’s motion for a general continuance “until further order of the Court.”

9. Between that time and the hearing on August 1, 1973 a series of letters were written between Zurawsky and the United States Attorney, and in some instances between Zurawsky and the doctors appointed to examine Bey. That correspondence reveals, among other things, that a Dr: Henninger on October 26, 1972 refused a Court appointment as a psychiatrist. Thereafter, a Dr. Thomas was appointed. On May 25, 1973, Dr. Thomas wrote to Zurawsky and reported that the defendant had refused to permit Dr. Thomas to examine him on two separate occasions. Dr. Thomas sought Zurawsky’s intervention. The text of Zurawsky’s response under date of July 17, 1973 follows:

“Dear Dr. Thomas:
May I apologize for the repeated inconveniences caused you in our mutual efforts to assist Mr. Bey. Apparently his earlier ambivalence concerning his desire for further psychiatric evaluation has lately evolved to a determination to resist any further medical or psychiatric treatment or study.
Judge Dumbauld has scheduled a pre-trial hearing for August 2, 1973, at which time we will probably dispose of the several pending pre-trial motions and of the problem of the proper mode of evaluating Mr. Bey’s legal competence.
Whatever course of action is decided upon at the pre-trial conference, I shall write you promptly either requesting your further professional services, if available, or requesting that you submit your bill for services rendered to date.
May I express my appreciation for your efforts to date in this case, which unfortunately has proved difficult beyond our initial expectations.
Yours very truly,
Lawrence G. Zurawsky”

10. On July 19, 1973, two days after Zurawsky had written to Dr. Thomas asking him to withhold further action until the Court had resolved “the problem of the proper mode of evaluating Mr. Bey’s legal competence” a supplemental motion for discovery captioned again in Criminal No. 71-63 was filed. The discovery sought dealt wholly with matters of “delay” evidently in support of the speedy trial theory.

11. On August 1, 1973 the Court held the hearing on Bey’s motions. Despite repeated requests by the government to withhold its ruling on dismissal of the indictment until after the record on arraignment had been transcribed, the Court at page 49 of the hearing transcript stated: “I . . . quash this indictment or rather the prosecution for failure to observe the proper procedural steps, . . . ” and reaffirmed that statement by its ruling at page 55 of the same transcript: “I am satisfied that proceeding to trial on a wrong indictment in any event would be a mischarge [sic] and I adhere to my former ruling dismissing the prosecution. Defense counsel may submit a written order to that effect.”

12. No witnesses were called at the August 1 hearing, other than the defendant Bey who was called to testify to his. “mental state”. However, the following colloquy took place between the Assistant United States Attorney and Zurawsky:

“Mr. Villanova: In other words, what you are testifying to, Mr. Zurawsky, is the only indictment you ever saw was a copy of the [superseded] indictment Mr. Wendell Stanton handed to you?
Mr. Zurawsky: Well, let’s let Mr. Wendell Stanton rest in peace. The copy of the indictment I got, Mr. Villanova, I believe I was given by the magistrate or maybe it was given to me by a secretary in the United States Attorney’s office, but my normal practice when appointed is that I go in and tell the magistrate that I will accept the case and to please give me a copy of the indictment so I can begin to research the case. And if I followed my normal practice, I was given this by some employee of the magistrate.
Mr. Villanova: In other words, Your Honor, what we have here is that Mr. Zurawsky says he has the wrong indictment. He doesn’t know who he got it from. The government is accused of wrongdoing. Mr. Zurawsky wouldn’t even say that. He wouldn’t say that the government is accused of wrongdoing. And Mr. Zurawsky doesn’t know how it ended up in the files. And I would even say that Mr. Zurawsky is not convinced in his own mind beyond a reasonable doubt — and you can correct me if I am wrong on this — that he never received a copy of the right indictment.” (August 1 Hearing, p. 54).

It was in this posture and on this record that the District Court dismissed the indictment, “finding”:

Defendant has been deprived of effective assistance of counsel as a result of the government’s providing defense counsel with the wrong' indictment, thereby inducing a detrimental reliance upon the part of defense counsel. Under an indictment alleging an offense on July 3, 1967, defendant was detained in federal custody in August, 1972, with no trial date being set as of August 1, 1973. A not insubstantial portion of that delay could have been avoided by timely action on the part of the government, especially in consideration of defendant’s motion for speedy trial (filed September 21, 1972) and defendant’s request for expedition of his mental examine and trial, in light of the pendency of the state prosecution.
At least partly as a result of the above-described delay, defendant was tried and convicted on state charges and began sentence of a term of 5 to 20 years in a state institution, with the subject federal charges still pending. Consequently, defendant has been irreparably prejudiced in his opportunities for concurrent sentence, access to certain rehabilitation opportunities, and in various other ways. All of the foregoing circumstances are aggravated by the fact that, to date, defendant has been deprived of effective assistance of counsel resulting from the government’s failure to provide defense counsel with a true and correct copy of the indictment at issue.
The foregoing circumstances indicate defendant, in the circumstances of this ease, has been deprived of his rights to both procedural and substantive due process, and has been irreparably prejudiced thereby.

III.

Central to the District Court’s order is its findings that the “government” provided defense counsel with the wrong indictment. Tested as it must be by the “clearly erroneous” standard, it is evident that this finding cannot stand. Not only does the record fail to reveal any evidence to support this finding, but the record is similarly barren of all evidence as to the other “findings” made in the August 16,1973 order.

Additionally, even if an evidential basis existed to support a finding that the Assistant United States Attorney gave a copy of the “old” indictment to Zurawsky, in the absence of any intent to mislead, we would nevertheless 'be obliged to hold as error the District Court’s dismissal of the indictment 71-63.

F.R.Crim.P. 10 requires only that the defendant himself be given a copy of the indictment. What little evidence there is in the record reveals that Bey had received a copy of the indictment and additionally had the charges therein explained to him. We have been directed to no authority requiring defense counsel also to be furnished with a copy of the indictment.

Even in those instances where the defendant has not been furnished a copy of the indictment and a post-trial attack has been mounted, — it has been held that no prejudice warranting vacation of the conviction results if the charges were read and explained to the defendant before the jury was sworn. The test is one of prejudice to the defendant, and there can be no prejudice where, as here: (a) there is evidence that the defendant had received a copy of the indictment; (b) the defendant is represented by counsel; (c) the defendant knows the charges, having had them read and explained to him in open court; and (d) the defendant acknowledged the charges by signature upon pleading “not guilty”. Garland v. Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772 (1914); United States v. Rogers, 469 F.2d 1317 (5th Cir. 1972); Dell v. State of Louisiana, 468 F.2d 324 (5th Cir. 1972); Silva v. Cox, 351 F.2d 61 (10th Cir. 1965); Richardson v. United States, 217 F.2d 696 (8th Cir. 1954).

Considering all of these circumstances, on the state of the record before us, the District Court’s finding cannot be sustained.

IV.

Bey next argues that he was denied effective assistance of counsel. This argument is predicated on the “fact” that Zurawsky was supplied by the government with' a copy of the superseded indictment, and as a result, Zurawsky “worked diligently for approximately one year, relying on the wrong indictment” (appellee’s brief p. 7). There is neither factual nor legal support in the record to sustain this argument.

As we have previously noted (III, swpra), the factual underpinning (i. e., the supplying of Zurawsky with the wrong indictment) is missing. Further, we have been made aware of no instance where prior to trial (as here), a prosecution has been dismissed on the grounds of ineffectiveness of counsel. We decline to so hold in the posture of this record.

V.

Finally, Bey argues that he was denied his constitutional right to a speedy trial. The District Court “found” that:

“Under an indictment alleging an offense on July 3, 1967, defendant was detained in federal custody in August, 1972, with no trial date being set as of August 1, 1973. A not insubstantial portion of that delay could have been avoided by timely action on the part of the government, especially in consideration of defendant’s motion for speedy trial (filed September 21, 1972) and defendant’s request for expedition of his mental examine and trial, in light of the pendency of the state prosecution.” (13a)

The District Court also found that Bey had been irreparably prejudiced in his opportunities “for concurrent sentence, access to certain rehabilitation opportunities, and in various other ways” because he was sentenced on state charges prior to disposition of the instant indictment.

Tested by the established standards, it is readily apparent that Bey was not denied his right to a speedy trial no matter which of the particular time intervals is analyzed.

The Supreme Court in United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966), noted that “the applicable statute of limitations ... is usually considered the primary guarantee against bringing overly stale criminal charges.” Thus, this Court has consistently held that no rights under the Sixth Amendment or F.R.Crim.P. 48(b) attach to a pre-indictment, pre-arrest delay. United States v. Dukow, 453 F.2d 1328 (3d Cir. 1972); Hunt v. United States, 456 F.2d 582 (3d Cir. 1972); United States v. Melnick, 458 F.2d 909 (3d Cir. 1972). Therefore, at the very least, Bey was not prejudiced nor denied his. right to a speedy trial by reason of the eight month delay between the date (July 3, 1967) when the offense was allegedly committed, and the return of the first indictment (March 7, 1968).

Nor can it be argued that Bey was prejudiced with respect to the three year period between the return of the first indictment (March 7, 1968) and the return of the superseding indictment (March 25, 1971). The superseding indictment was returned well within the applicable statute of limitations and it was on that indictment that defendant was detained and subsequently arraigned. In United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971), the Court said:

“It is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of speedy-trial provision of the Sixth Amendment.”
******
“Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government’s case.” (emphasis supplied)

Bey was neither arrested nor incarcerated as a result of the original indictment. It was on the basis of the superseding indictment that a federal detainer issued in August 1972. An examination of the record has failed to disclose bad faith, purposeful delay, oppressive action or material prejudice to the defendant on the government’s part. Hunt v. United States, supra. Rather, it reveals that defendant was apparently a fugitive until July 1972 when he was incarcerated on state charges. A defendant cannot complain of any delay attributable to his flight or unavailability. United States v. Cartano, 420 F.2d 362, 364 (1st Cir.), cert. denied 397 U.S. 1054, 90 S.Ct. 1398, 25 L.Ed.2d 671 (1970). Accordingly, no prejudice could result with respect to the three year period between the two indictments or even with respect to the one year period between the return of the superseding indictment and defendant’s state arrest in July 1972.

As to the alleged post-arrest delay, a motion for speedy trial made by the defense is not solely dispositive of the issue. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). A defendant’s constitutional right to a speedy trial cannot be established by any inflexible rule but can be determined only by weighing the actions and conduct of the prosecution and that of the defendant. Such factors as the length of and reason for the delay, the defendant’s assertion of his right and the prejudice enuring to the defendant must be taken into account. United States v. Varga, 449 F.2d 1280 (3 Cir. 1971).

Although Bey did file a motion for a speedy trial, we cannot overlook his failure to submit to mental examination and his own request for a briefing continuance. These actions without more, indicate substantially less than a desire for a speedy trial. Barker v. Wingo, supra; cf. Mackey v. United States, 122 U.S.App.D.C. 97, 351 F.2d 794 (1965). Where the delay, if any, is attributable to the defendant, as it is here, we will not hear him complain that he has been denied a speedy trial. United States ex rel. Barber v. Commonwealth of Pennsylvania, 429 F.2d 518 (3d Cir. 1970); Murray v. Commonwealth of Pennsylvania, 408 F.2d 498 (3d Cir. 1969).

Having discovered no basis in the record for the Trial Court’s finding that “delay could have been avoided by timely action on the part of the government,” and being satisfied on the record as a whole that the defendant has not been denied a speedy trial, the order of the District Court dismissing Indictment 71-63 will be reversed, and the case will be remanded for trial, or further proceedings consistent with this opinion.

      . The government’s right to appeal is governed by 18 U.S.C. § 3731, as amended by § 14(a) of the Omnibus Crime Control Act, 84 Stat. 1890 (1970). Under that section orders dismissing indictments are appealable. United States v. Crutch, 461 F.2d 1200 (2d Cir. 1972); United States v. DiStefano, 464 F.2d 845, 847 (2d Cir. 1972) ; see also 1970 U.S.Code Cong. & Admin.News p. 5848. Since the instant indictment (71-63) was filed after the effective date of the 1970 amendments, an appeal properly lies to this Court.

      . 18 U.S.C. § 922(h) provides:
      (h) It shall be unlawful for any person.—
      (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
      (2) who is a fugitive from justice;
      (3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201 (v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954) ; or
      (4) who has been adjudicated as a mental defective or who has been committed to any mental institution;
      to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
      18 U.S.C. § 924(a) provides:
      (a) Whoever violates any provision of this chapter or knowingly makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, or in applying for any license or exemption or relief from disability under the provisions of this chapter, shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.

      . Subsequent to the August 16, 1973 order of dismissal, the government moved before the District Court for reconsideration of its order. A protective appeal and motion for remand to the District Court were filed on August 27, 1973. On October 12, 1973, this Court granted appellant’s motion for remand but retained jurisdiction. The District Court, upon reconsideration of its August 16, 1973 order, reaffirmed its earlier decision by order dated December 4, 1973. There is appropriate appellate jurisdiction by virtue of the appeal taken from the August 16, 1973 order over which we retained jurisdiction. Although this is the second time that this matter has been presented to us, this is the first occasion that we address ourselves to the merits of the controversy.

      . 15 U.S.C. § 902(f) provided:
      (f) It shall be unlawful for any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year or is a fugitive [sic] from justice to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, and the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this chapter.

      . 15 U.S.C. §§ 902(f) and 905(a) were repealed by Pub.L. 90-351, June 19, 1968, and these prohibitions are covered by new sections 18 U.S.C. §§ 922(h) and 924(a).
      The record does not reveal the exact reason for Bey’s re-indictment. As noted, the 1968 indictment charged Bey with “causing to be transported a firearm in violation of 15 U.S.C. § 902(f).” However, the proscription against “causing to be transported” is in 15 U.S.C. § 902(e). It is 15 U.S.C. § 902(f) which proscribes “receiving”. Hence, we assume that Bey would have had to be re-indicted even had there been no recodification.

      . It was stated without contradiction at the August 1, 1973 hearing that until that time, Bey had been a fugitive.

      . Zurawsky does not represent Bey on this appeal.

      . Appellee’s brief page 8.

      . The motion to dismiss the indictment referred to the “subject criminal statute 15 U.S.O. § 902(f) as being unconstitutional per se." The substance of 15 U.S.O. § 902(f) is substantially the same as 18 U.S.C. § 922(h). Without stating the reasons therefor, the appellee in his brief (page 9) claims that despite the similarity of the two statutes the defendant has nevertheless been prejudiced at this pretrial stage.

      . At oral argument we permitted a supplemental appendix to be filed which included various letters pertaining to the psychiatric examination of the defendant. To this date, no mental examination of the defendant has ever been conducted.

      . At this hearing, Bey referring to the pleading of the indictment at arraignment, testified:
      “THE WITNESS : All right. This is my problem, Tour Honor, because when this was read originally at the preliminary hearing I asked the judge for a definition of willfully and knowingly. And the court at that time told me — well, let me clarify myself. I asked the judge for a definition, and before she could answer, I said, “Would that mean that I knew at the time I was performing the act that in fact it was a violation of the law?” And I asked her if that is what willfully and knowingly meant in translation. And if I am not mistaken, the court agreed that is what it meant. On that basis then I entered a nonguilty plea.” (August 1, 1973 Hearing p. 33).

      . Order dated August 16, 1973.

      . United States v. Delerme, 457 F.2d 156 (3d Cir. 1972).

      . What the record does show is (1) Zurawsky was on notice of the correct charges and indictment number from at least August 28, 1972 (the time of his appointment as counsel) ; that the correct charges were read to, discussed by and acknowledged by Bey and Zurawsky at the September 14, 1972 arraignment. Even if we were to give evidential credit to the statements made at oral argument by Zurawsky (but see Thornton v. United States, 493 F.2d 164 at 167 (3d Cir. 1974)), the record is devoid of any “evidence” that Zurawsky did not receive the correct indictment — or from whom he may have received the “wrong” indictment.--

      . Bey’s brief (p. 3) states: “At the conclusion of the arraignment, Mr. Zurawsky was supplied with a copy of the wrong indictment.” Nowhere in the record can support be found for this statement.

      . Cf. United States v. Clark, 407 F.2d 1336 (4th Cir. 1969) and United States v. Shepherd, 108 F.Supp. 721 (D.C.N.H.1953) (furnishing defense counsel with a copy of the indictment is equivalent to furnishing the indictment to the defendant himself).

      . The defendant’s brief filed in opposition to the government’s motion for a stay of dismissal in the District Court, and reproduced in part here (appellee’s brief p. 6) belies in large part any fault of the government with respect to ineffectiveness of counsel. “. . . The language of the Assistant United States Attorney at the preliminary arraignment, indicating the existence of different languages in the charge of the indictment, did not.register with defense counsel at the time. In fact, although the recording of the preliminary arraignment indicates that such statements were made by the Assistant United States Attorney, defense counsel still has no recollection of that event, but accepts as having happened as a result of hearing the recorded proceedings.”

      . At the time the indictment was dismissed, all that appears from the record is that some seven pretrial motions had been filed and oral argument had on August 1, 1973. As previously noted all of the motions were equally applicable to both the “old” and “new” indictments (p. 198 supra). Due to the similarity in the offense charged,, the preparation for Bey’s defense would have been the same under either indictment. In any event, even assuming surprise, the proper remedy would have been either a continuance or adjournment, but not dismissal of the indictment. See United States v. Somers, 496 F.2d 723 (3d Cir., filed March 27, 1974), (for a discussion of prejudicial variance and continuance in a trial setting) ; and Hunt v. United States, 456 F.2d 582 at 584 (3d Cir. 1972) (“An indictment should not be dismissed unless there has been deliberate or oppressive action by law enforcement officials.”).

      . No authorities support this conclusion. Rather, the courts have uniformly held that a defendant has no right to a concurrent sentence. United States v. Kantor, 362 F.2d 178 (7th Cir. 1966), cert. denied 386 U.S. 986, 87 S.Ct. 1298, 18 L.Ed.2d 239; Burwell v. United States, 353 F.2d 88 (5th Cir. 1965); Larios v. Madigan, 299 F.2d 98 (9th Cir. 1962); United States v. Myers, 451 F.2d 402 (9th Cir. 1972).
      In any event, the defendant’s own actions, and not those of the government, defeat any possible argument in this connection. On September 21, 1972 Bey’s motion for a speedy trial was filed. On October 5, 1972, the District Court granted his motion for a mental examination and on Bey’s request, continued generally and without date the time for filing of his brief.
      Bey was sentenced by the state authorities in January 1973. Two times he refused to submit himself for examination by the Court appointed physician. To this date he has yet to be examined! In July 1973, Bey’s counsel asked Dr. Thomas to withhold his further efforts until after the August 1973 hearing (pp. 198-199, supra). Hence, not only was trial impossible prior in time to January 1973 when the state sentence was imposed, but by reason of Bey’s resistance to examination, and the granting of Bey’s own motion for a continuance, Bey was not ready to stand trial by August 1973.

      . We of course do not rule out the possibility of any informed change of plea.


source: Caselaw Access Project

author: VOGEL, Senior Circuit Judge.

license: Public Domain

text:
    Keith V. CHILGREN, Appellant, v. James R. SCHLESINGER, Secretary of Defense, et al., Appellees.
    No. 74-1111.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 15, 1974.
    Decided July 10, 1974.

      Donald J. Heffernan, St. Paul, Minn., for appellant.
    Stephen G. Palmer, Asst. U. S. Atty., Minneapolis, Minn., for appellees.
    Before VOGEL, Senior Circuit Judge, and GIBSON and WEBSTER, Circuit Judges.
   VOGEL, Senior Circuit Judge.

Appellant Chilgren, a commissioned officer in the United States Air Force Reserves, sought a writ of habeas corpus in the United States District Court for the District of Minnesota, alleging that he is being unlawfully detained in the service because of the denial of his application for discharge as a conscientious objector. The District Court denied the petition in an opinion reported at 368 F.Supp. 1375 (D.Minn.1974), and this appeal followed.

Upon an examination of the entire record, we conclude that there was no basis in fact for the Secretary of the Air Force’s determination that appellant is not entitled to discharge from the military as a conscientious objector, and, accordingly,;the District Court’s refusal to grant the writ must be reversed.

Appellant joined the United States Air Force Reserves in May of 1968, while he was attending medical school. He received no monetary benefits or support from the Air Force and attended no military training programs, nor was he required to do so. On September 29, 1972, appellant submitted an application for discharge from .the Air Force Reserves based upon conscientious objection to war and attached some 13 supporting letters. In accordance with Air Force regulations, Chilgren was interviewed by a psychiatrist, a chaplain, and an investigating officer, each of whom filed reports of their findings. Major Roger A. Mattson, M.D., found Chilgren free of psychiatric disorder. Base Chaplain Terrence J. Murphy concluded from his study of Chilgren’s application and after a personal interview that:

3. “The nature and basis of the applicant’s claim” are religious. Analysis of the applicant’s reasons, given both orally and in writing, indicate they are religious in nature.
4. “The applicant’s sincerity and depth of conviction” are authentic, genuine, and of considerable depth. This is evident from the thorough grasp he has of fairly complicated theological positions, from his manner, and from the history and process by which he developed his conviction.

The investigating officer, Major Robert D. Nordstrom, concluded, based upon the application, the attached letters of support, and Chilgren’s statements under oath at the hearing, that:

d. The basis for the applicants [sic] conscientious objection is religious in nature. Capt. Chilgren has strong secondary moral convictions due to his professional experiences at the Veterans’ Hospital. I believe Capt. Chilgren to be sincere in his application because his belief at the hearing was consistent with those expressed in his application.

Appellant’s record was then forwarded to the Air Reserve Personnel Center, Denver, Colorado, for review by the Staff Judge Advocate, Colonel Mack E. Sehwing. His conclusion, based only on the written record, and concurred in by the Commander of the Center and the Director of Personnel Actions, was that:

The record indicates that the applicant’s anti-war beliefs are not a deeply held, integral part of his overall religious beliefs to such an extent that he qualifies as a conscientious objector. Accordingly, it is recommended that his application be denied.

Appellant’s record was then forwarded to the Air Force Military Personnel Center, Randolph Air Force Base, Texas, for further review by the offices of the Surgeon General and the Chief of Chaplains.

The Special Assistant to the Command Chaplain, Major Kenneth W. Henschel, recommended disapproval, stating:

Capt. Keith V. Chilgren can point to no experience during the crucial time period which would influence his conversion to conscientious objection status. Neither does he indicate any change in life-style which would support his claim. As such, his beliefs do not appear to be deeply held and this, in turn, casts serious doubt on his sincerity.

Captain Raymond R. McClean of the Medical Personnel Procurement Division, Officer of the Surgeon General, tersely concluded:

3. The sincerity of Captain Chilgren’s alleged beliefs do not justify classification as a conscientious objector.

After consideration of these recommendations and the other documents in the file, Captain Christopher A. Somers of the Directorate of Personnel Program Actions, concluded:

3. In our opinion, Captain Chilgren has made a very shallow explanation concerning such significant items as the nature of his alleged beliefs, what factors contributed to his changed convictions, and why his beliefs became incompatible with military service. A review of what has been submitted fails to convince that the officer is sincere in his claim to conscientious objection.
* * # * * *
5. Captain Chilgren has not met the criteria for classification as a conscientious objector. There is every indication of insincerity and expediency to avoid his voluntary assumed obligation. His instant claim to conscientious objection coincides too conveniently with his pending call to active duty. Recommend disapproval.

Chilgren’s file was then forwarded to Washington, D. C. There, Brigadier General Walter D. Reed for the office of the Judge Advocate General filed a report and recommended disapproval “because applicant has failed to establish that his professed beliefs are sincere and deeply held.” On final review, the Secretary of the Air Force adopted the rationale of that report which stated in part:

Captain Chilgren has based his conscientious objection claim on his religious convictions as a member of the Lutheran Church, of which he has apparently been a devout member all his life. No evidence is offered as to how these beliefs have changed since his acceptance of an Air Force commission and of delays granted in being called to active duty to allow him to complete medical training. He states “My beliefs crystallized with my personal and religious maturation,” yet offers no evidence of a change in life style as a result of this “crystallization” other than making his views public to his acquaintances.
* ' * * * * -*
Considered- in toto the application submitted by Captain Chilgren to support his claim of conscientious objection is a superficial recital of beliefs which might 'well be espoused by any Christian. He has provided no evidence that his professed conscientious objector beliefs are so sincere and deeply held as to have become the primary controlling force in his life and has provided no insight into how his beliefs have changed from those which he has always held.

On the basis of these recommendations by reviewing officers, none of whom ever saw or heard appellant, and in direct contradiction to the recommendations of those who personally interviewed him, Chilgren’s application for a CO discharge was denied. Notice thereof was received by Chilgren on August 2, 1973, two days after his receipt of orders to report for active duty. He then instituted the instant habeas corpus action in the United States District Court.

Appellant raises three claims of error on the part of the District Court in denying his application for a writ: (1) That the Air Force failed to follow its own regulations, 32 CFR § 888e.28, which require that an applicant be given notice of any adverse information included in his record and a 15-day opportunity to rebut; (2) that he was entitled to testify in the District Court in support of his claim; and (3) that there was no basis in fact for the Air Force administrative determination that his beliefs were not sincerely held.

The District Court held against appellant on all of the points raised. Because of our disposition of the case on the basis-in-fact grounds, we find it unnecessary to resolve the first two points that appellant raises upon this appeal, and therefore we turn directly to the main issue.

The Supreme Court in Clay v. United States, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971), has with succinct clarity set forth the necessary showing for classification as a conscientious objector:

In order to qualify for classification as a conscientious objector, a registrant must satisfy three basic tests. He must show that he is conscientiously opposed to war in any form. Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168. He must show that this opposition is based upon religious training and belief, as the term has been construed in our decisions. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733; Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308. And he must show that this objection is sincere. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428. In applying these tests, the Selective Service System must be concerned with the registrant as an individual, not with its own interpretation of the dogma of the religious sect, if any, to which he may belong. United States v. Seeger, supra; Gillette v. United States, supra; Williams v. United States, 5 Cir., 216 F.2d 350, 352. [403 U.S. at 700, 91 S.Ct. at 2070 ]

Once the applicant makes a prima facie showing of these three elements, the burden then rests upon the reviewing agency to show a lawful reason for rejection. In Kemp v. Bradley, 457 F.2d 627 (8th Cir. 1972), although our holding turned on whether the Army applied a wrong standard in determining that a CO applicant lacked “depth of conviction,” rather than making any finding about his “sincerity” of belief, we were faced with a factual situation almost identical to that in the instant case. There we said:

The district court found, and the government does not here dispute, that “Kemp’s application established a prima facie entitlement to separation [from the Service] as a conscientious objector.” The opinion of the Board failed to show a lawful reason for refusing to classify Kemp as a conscientious objector and release him from military service pursuant to Army Regulations. This prima facie case remained unrebutted following the action of the Board. [457 F.2d at 630.]

In other words, there must be a basis in fact for the rejection of the application.

In Packard v. Rollins, 422 F.2d 525 (8th Cir. 1970), we said:

We recognize, as did Judge Collin-son, that the courts have limited power to review classifications made by the military. Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946). It is “not for the courts to sit as super draft boards substituting their judgments on the weight of the evidence for those of the designated agencies. * * * The classification can be overturned only if it has ‘no basis in fact’.” Witmer v. United States, 348 U.S. 375, 380-381, 75 S.Ct. 392, 395, 99 L.Ed. 428 (1955). See also United States v. St. Clair, 293 F.Supp. 337, 341 (E.D.N.Y.1968). [422 F.2d at 527 (emphasis supplied).]

The same basis-in-fact standard applies both to in-service applications and to Selective Service cases. Packard v. Rollins, supra, at 527.

In the instant case, the various reviewing officers indicated not only that the beliefs of the appellant were not deeply held, but also that there were serious doubts as to his sincerity. As we have said, the appropriate standard of review to be applied in these instances is whether there was a basis in fact for the decision. This has been taken to mean that the material to be found in the record which allegedly justifies denial of an application for CO status “need not be as comprehensive as ‘substantial evidence,’ though it cannot be a mere ‘scintilla.’ ” United States ex rel. Cheekman v. Laird, 469 F.2d 773, 787 (2d Cir. 1972). We accordingly look at the entire record to determine whether there was such a basis in fact for the Air Force’s determination that appellant’s application should be denied.

As previously noted, the hearing officers, Chaplain Murphy and Major Nordstrom, both recommended that the appellant be granted conscientious objector status and both fully supported his sincerity. In subsequent internal reviews, however, reviewing officers uniformly expressed doubt about appellant’s sincerity, based solely on their examination of the documents contained in the record. Relying on these reviews, the Secretary decided to deny Chilgren’s application.

We have reviewed the entire record and can find nothing upon which the Secretary . could rationally have based such a decision.

Appellees suggest that the letters of support, which were attached to the appellant’s claim for CO status, seemed contradictory and cast doubt on appellant’s sincerity. We wholly disagree. When those letters are read in full, there is absolutely nothing upon which a finding of insincerity can be rationally predicated. As we noted earlier, one of appellant’s other claims is that the Air Force failed to follow its own procedural regulations which require the furnishing of any adverse information to an applicant for discharge. Revealingly, appellees argue in their brief, and the District Court so held, in response to this claim, that the Air Force was not required to do so, because there was no adverse information contained in the file. With this we agree, for there was no adverse information contained therein. This contention leaves appellees in a paradoxical position at best. It is argued, on the one hand, that the Air Force was not required to furnish the record to appellant because it contained no adverse information; yet, on the other hand, appellees argue that there was a basis in fact in that same record which justified reversal of hearing officers’ recommendations in appellant’s favor. We fail to see how such a basis in fact could be found in a record containing no adverse information. Cf. Arlen v. Laird, 345 F.Supp. 181, 187 (S.D.N.Y.1972). As stated by the Second Circuit in Lovallo v. Resor, 443 F.2d 1262, 1264-1265 (2d Cir. 1971):

Where the applicant has stated his beliefs with apparent sincerity and no adverse demeanor evidence has been introduced, the Conscientious Objection Review Board must predicate any finding of insincerity upon objective evidence affording a rational basis for the Board’s refusal to accept the validity of 'the applicant’s claims. Witmer v. United States, supra; United States v. James, 417 F.2d 826, 832 (4 Cir. 1969); Kessler v. United States, 406 F.2d 151, 156 (5 Cir. 1969). Absent such evidence, the military’s administrative determination lacks a “basis in fact” and is therefore, rendered in violation of its own directive.

See also United States ex rel. Checkman v. Laird, 469 F.2d 773, 778 (2d Cir. 1972).

On the record before us, since we find no objective evidence to justify denial of CO status to Chilgren, the administrative determination of the Air Force lacks a basis in fact. We remand this case to the District Court with directions to grant the appellant’s petition for a writ of habeas corpus. See Kemp v. Bradley, 457 F.2d 627, 630 (8th Cir. 1972).


author: COFFIN, Chief Judge.

text:
    POTTER INSTRUMENT COMPANY, INC., Plaintiff, Appellant, v. ODEC COMPUTER SYSTEMS, INC., Defendant, Appellee.
    No. 74-1081.
    United States Court of Appeals, First Circuit.
    Argued June 3, 1974.
    Decided June 27, 1974.

      Richard L. Aitken, Washington, D. C., with whom Anthony M. Lorusso, Washington, D. C., Kenway, Jenney & Hildreth, Boston, Mass., Gilbert H. Hennessey,- and Lane, Aitken, Dunner & Ziems, Washington, D. C., were on brief, for plaintiff, appellant.
    Albert E. Fey, New York City, with whom Thomas H. Quinn, Swan, Keeney, Jenckes & Asquith, Providence, R. I., William J. Gilbreth, and Fish & Neave, New York City, were on brief, for defendant, appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This appeal stems from a patent infringement action initiated by the appellant in the district court, resulting in a judgment dismissing the complaint on grounds that the claims in issue in two patents were invalid for obviousness, under the standard of 35 U.S.C. § 103. 370 F.Supp. 198 (D.R.I.1974). Appellant contends that, as to one of these patents, the district court failed to consider relevant evidence which would have shown that the patent was not “obvious” at the time of application.

The patent claim in question (Potter patent) concerns a chain type belt for high speed printing, used to print output information from computers and similar data processing equipment. The belt, with “teeth” spaced on its inner surface, retains printing slugs (with type faces), which are clipped onto the belt. and engaged with the “teeth” so that they are kept in proper relation to each other. The belt’s “teeth” also mesh with gears that drive the belt. As the belt rotates, its printing slugs (and their type faces) are carried past a row of hammers, each of which is fired when the appropriate type face comes opposite it, thereby enabling an entire line to be printed with each rotation of the belt.

It is not disputed that before the Potter patent was issued, the general idea for a chain type belt for high speed printing of one line per belt rotation had already been developed. Problems occurred, however, because the impact of the hammers against the slugs, which were clamped and screwed into place on the belt, caused stresses and strains which had tended to throw the slugs out of position or cause them to break. The Potter patent helped solve these problems in two ways: first, its one-piece printing slugs, which clipped onto the belt, could withstand hammer pressure better than clamped ánd screwed slugs; second, its “teeth”, on the belt’s inner surface, could hold the slugs in position better than the alternative of holding each slug in position by its abutting slugs.

The district court found, however, that the Potter patent’s one-piece slug, clipped onto the timing belt, Was an “obvious” expedient at the time the patent was issued. It noted, most particularly, that the identical expedient had previously been suggested (although not considered by the Patent Office as part of the prior art) for moving paper in a printer, by way of attachments mounted on a timing belt for carrying paper feed pins. Further, it found persuasive certain testimony that it would have been obvious, at the time, to mount printing slugs on a timing belt.

As to the teeth on the belt’s inner surface, used to hold the slugs in position, the district court determined that this, too, was an obvious mechanism at the time the patent was issued. Appellant had admitted as much in its patent application, when it stated that a prior patent, incorporating teeth-like indentations on a belt, had cured the problem of retaining the proper spacing of printing slugs. The court also pointed out that two other patents in the prior art used flexible belts with uniformly spaced' teeth on the inner surface.

Appellant maintains that the district court used an incorrect legal standard to determine “obviousness”, since it ignored “[s]uch secondary considerations as commercial success, long felt but unsolved needs, [and] failure of others . .”, Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1966). Appellant points out that the Potter patent solved the problem which had occurred in other chain printers due to the impact of the hammers against the print slugs and that, although the need for a solution had existed for several years, none of the prior art — including the mechanism for moving paper in a printer — had suggested the Potter solution even to the company (IBM) which had disclosed the device in its bulletin. While each of the different patents in the prior art may have incorporated one element of the Potter patent - — either the clip-on slugs or the toothed belt — appellant argues that the mere fact that no one thought of putting the elements together indicates that the Potter solution was not “obvious” at the time. Appellant charges that the court was using subjective hindsight, and judging the patent “element by element”, instead of regarding “hard proof of recognized need for the answer”. Allen v. Standard Crankshaft and Hydraulic Co., 323 F.2d 29, 34 (4th Cir. 1963).

We recognize that the standard embodied in 35 U.S.C. § 103 is often a difficult one to apply, calling for a determination of the scope and content of prior art, the differences between the prior art and claims at issue, and the level of ordinary skill in the pertinent art. In its pursuit of the facts, a district court may consider secondary evidence, such as failure of others to come up with a solution, over a long period of time, although the solution was needed. But the district court is not required, in every case, to weigh the secondary evidence as heavily as, or more heavily than, other evidence, such as contemporaneous opinions of specialists in the field, or concessions made by parties in their patent applications. “[S]econdary considerations . . . might be utilized . . . .” Graham v. John Deere Co., supra, 383 U.S. at 17, 86 S.Ct. 684. Here, the court considered the testimony of Dr. Ream, appellant’s expert, who admitted that the mechanism for moving paper in a printer used a method of attachment identically the same- as the manner in which the printing slugs of the Potter patent were attached to the timing belt. The court also considered appellant’s concession to the Patent Office that the prior art had solved the problem of retaining the proper spacing of print slugs.

The determination of whether “obviousness” is so close a question that secondary evidence should be considered or weighed more heavily is an evidentiary question, primarily entrusted to the district court. Nashua Corp. v. RCA Corp., 431 F.2d 220, 222 (1st Cir. 1970). On the record before us, we find nothing which would indicate that the district court did not have ample evidence on which it could have found a degree of “obviousness” which would make recourse to secondary evidence unnecessary.

Finally, we note that, while a court should scrutinize a patent as a whole, rather than element by element, Maloney-Crawford Tank Corp. v. Sauder Tank Co., 465 F.2d 1356, 1366 (10th Cir. 1972), it is also true that each element must, to some extent, be considered separately, in order to ascertain whether the patent “only unites old elements with no change in their respective functions”. Great Atlantic and Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950), rehearing denied, 340 U.S. 918, 71 S.Ct. 349, 95 L.Ed. 663 (1951). In this respect, we find that the district court correctly scrutinized the elements that made up the patent and was not clearly erroneous in its conclusion of obviousness.

Affirmed.

      . Patent No. 3,402,657 (the “Potter patent”) applied for November 25, 1965, issued September 24, 1968. This is the only patent in issue on this appeal.

      . Appellant argues that the technical bulletin in which this invention had appeared was so “obscure” and of such limited circulation that the invention could not, in fairness, be considered part of the prior art. But it is well established that limited circulation alone, does not disqualify a publication from contributing to the prior art. See, e. g., Philips Electronic & Pharm. Indus. Corp. v. Thermal & Electronics Indus., Inc., 450 F.2d 1164, 1169 (3d Cir. 1971).

      . Appellant argues that, insofar as its admission conceded that the prior patent had cured the problem of initial spacing, it was an obvious error. This may be a point well taken, but the court could justifiably believe and rely upon a witness who, in responding to a question addressed to the “practical difference” in operation achieved by the prior patent over earlier art stated that it was “to guard against lateral displacement and twisting”, i. e., to retain proper spacing,


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Gerald W. FINNERMAN et al., Plaintiffs-Appellants, v. Harold L. McCORMICK, Executor of the Estate of George William McCormick, Deceased, and Sunset Drive In Theatre, a co-partnership, Defendants-Appellees.
    Nos. 73-1708, 73-1709.
    United States Court of Appeals, Tenth Circuit.
    June 3, 1974.
    Rehearing Denied July 1,1974.
    Robert A. Dufty, of Friedman, Bader & Dufty, Denver, Colo., for plaintiffs-appellants.
    Don R. Evans, of Yegge, Hall & Evans, Denver, Colo., for defendants-appellees.
    Before BREITENSTEIN, SETH and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

In this diversity action damages are sought for the wrongful death of Robert Sparr and serious injuries to Gerald Finnerman which occurred in the crash of a Piper aircraft. This took place on July 11, 1969. One George McCormick, the pilot of the plane, was also killed. This action is against the McCormick estate .and the Sunset Drive In Theatre, the owner of the airplane and the alleged employer of George McCormick, deceased.

The purpose of this flight was to observe whether certain air shots of a raft which was being pulled across a reservoir would be successful for use in a motion picture which was then being filmed. Aubrey Schenck Enterprises, Inc. was the producer of the movie. Certain scenes of the movie were shot in Brush Hollow Reservoir, near Canon City, Colorado. On one of the passes over the site, the crash took place.

Plaintiffs in this action are Gerald Finnerman and the widow and son of Robert Sparr. It is alleged that the pilot McCormick and Sunset Drive In Theatre, owner of the plane, are responsible for the serious injuries and deaths.

The Fireman’s Fund Insurance Company intervened as a plaintiff on the basis that it had paid Finnerman and Sparr workmen’s compensation benefits on behalf of the producer of Schenck Enterprises. The latter company also filed an action against the estate of George McCormick seeking damages for McCormick’s negligent interruptions of the Schenck motion picture. This latter suit was consolidated with the Finnerman and Schenck action.

The complication arises from the fact that the widow of George McCormick filed a claim before the Colorado Division of Labor in which Aubrey Schenck Enterprises, Inc. and Fireman’s Fund Insurance Company were named as respondents. This asserted that at the time of the death of McCormick he was an employee of Schenck Enterprises so that the claimant, Marine Wood McCormick, was entitled to workmen’s compensation benefits. Pending the determination of the claim by the Division of Labor, the present action was held in abeyance. The Referee of the Colorado Division of Labor held that Schenck Enterprises had employed George McCormick to fly Finnerman and Sparr over the motion picture site and that this was in the usual course of business of Schenck Enterprises. It was further held that compensation was to be paid. The Colorado Court of Appeals upheld this determination, citing Industrial Commission v. Allen, 28 Colo.App. 546, 478 P.2d 702 (1970).

Based on the decision of the Court of Appeals, defendants filed a motion for summary judgment, contending that this adjudication was conclusive as against these plaintiffs on the issue of McCormick’s having been an employee of Schenck. This motion for summary judgment was granted on the ground that Finnerman and Sparr were bound by this adjudication and could not contend in the present action that McCormick was anything other than a co-employee of Finnerman and Sparr. Therefore, the issue on this appeal is whether the decision rendered by the Colorado Division of Labor that McCormick was an employee of Schenck Enterprises is binding on these plaintiffs so as to bar the present action and so as to preclude them from contending that he was solely an employee of the theatre or not an employee of Schenek’s in the context of this present action.

It is our conclusion that the adjudication by the Industrial Commission affirmed by the Colorado Court of Appeals in the proceeding involving the claim by the widow of McCormick against Schenck does not constitute a bar to the present action. Appellees maintain that the issue as to whether McCormick was the co-employee of Finnerman and Sparr has been adjudicated in a binding way by the Industrial Commission and the Colorado Court of Appeals in the MeCormick-Sehenck proceeding. We are of the opinion, however, that the plaintiffs are at liberty to litigate the liability of McCormick, the pilot of the airplane, and that of Sunset Drive In, the owner of the plane since that issue has not been determined.

Appellees say that the doctrine of res judicata applies. This doctrine precludes relitigation of a judgment on the merits in a prior suit which involved the same parties or their privies. A related doctrine is that of collateral estoppel which precludes relitigation of issues actually litigated and determined in a prior suit regardless of whether based on the same cause. See Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 99 L.Ed. 1122 (1955).

The two causes of action at bar are distinct. The workmen’s compensation case was a dispute between McCormick’s widow and Schenck under the Workmen’s Compensation Act. The present case is an ordinary tort action in which different plaintiffs seek recovery against different defendants. More important than the difference in parties is the fact that McCormick’s employment status in the compensation -case was limited to a special temporary employment. It is not determinative as to his permanent status. The issue is not the same.

Not only are the fact situations different, but the applicable standards for determining the question of employer relationship are also different in the two instances. Before the Compensation Commission a liberal view is taken and the presumption favors a finding of an employee relationship. McCormick’s relationship to Schenck was a special temporary one. Schenck was employing him and the airplane for a limited time and a particular purpose. This did not exclude proof in another suit that McCormick’s permanent employer was Sunset Drive In which owned the plane and with which he had a vicarious relationship.

Professor Moore in his work on federal practice recognizes this exception to the collateral estoppel doctrine. See IB Moore’s Federal Practice |f 0.443 [2].

Our court has also held that collateral estoppel does not apply where the issue emerges differently in two different contexts. See Embry v. Equitable Life Assurance Society, 451 F.2d 472 (10th Cir. 1971), cert. denied, 405 U.S. 1041, 92 S.Ct. 1316, 31 L.Ed.2d 582 (1972). To the same effect is Young & Company v. Shea, 397 F.2d 185, 188 (5th Cir. 1968), cert. denied, 395 U.S. 920, 89 S.Ct. 1771, 23 L.Ed.2d 237 (1969).

As we view it, then, confusion is apt to arise as a result of a mechanical application of the doctrine of collateral estoppel. In the present suit the plaintiffs are not seeking to disprove that McCormick was an employee of Schenck at the time of the airplane crash. They are seeking to establish a positive and not inconsistent thesis, namely, that McCormick was generally an agent of (or a partner in) Sunset Drive In Theatre.

In adjudicating the present question it is important to be mindful that the Workmen’s Compensation Act is broadly and liberally construed so as to provide just compensation for workmen and their families for injuries during employment. See University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953); L. B. Cole Produce Co. v. Industrial Commission, 123 Colo. 278, 228 P.2d 808 (1951); Continental Oil Co. v. Sirhall, 122 Colo. 322, 222 P.2d 612 (1950). Thus, the Compensation Act emphasizes the objective of protection of employees and in carrying out this objective gives a broad interpretation to the term “employee.” See Martin K. Eby Construction Co. v. Industrial Commission, 151 Colo. 320, 377 P.2d 745 (1963); Divelbiss v. Industrial Commission, 140 Colo. 452, 344 P.2d 1084 (1959). In seeking to carry out the purposes of the Act, employment has been found to exist in unexpected circumstances. See Continental Oil Co. v. Sirhall, supra, 222 P.2d 612 at 613, wherein the Colorado court said:

[A]n obligation [to pay workmen’s compensation] may, in proper cases, be imposed against an owner where the common-law relationship of employer and employee does not exist, in that one may be an employee by virtue of the statute, for the purpose of workmen’s compensation, when in fact he is not an employee by common-law definition. 222 P.2d at 613.

In view, then, of the vast difference between workmen’s compensation procedures and the methods which obtain in a courtroom, it cannot be said that the adjudication before the Industrial Commission precludes the prosecution of the present case and the litigation of the issue of agency. Indeed, McCormick’s permanent employment would appear to have been with the Sunset Theatre and from all that is apparent in this record Sunset was ultimately responsible for his activities in that it had the underlying right to direct his actions. Cf. Landis v. McGowan, 114 Colo. 355, 165 P.2d 180 (1946), and Chartier & Industrial Commission v. Winslow Crane Service Co., 142 Colo. 294, 350 P.2d 1044 (1960). See also Restatement of Agency 2d § 226, which states that a person may serve two masters if the service to one does not involve abandonment of the service to the other.

Having reached the conclusion that the issues in the proceedings are substantially disparate in their purposes, we need not deal with the question as to whether these plaintiffs were somehow in privity with either Fireman’s Fund Insurance Company or Schenck in the compensation proceedings. That is irrelevant. Were we to consider it, however, we would be hard pressed to hold that privity existed.

One further observation: we fail to see that even if collateral estoppel were applicable that it could apply to bar plaintiffs’ action against Sunset Drive In Theatre which was in no manner related to the proceedings before the Colorado Industrial Commission.

Seeing no legal bar to appellants asserting that McCormick was acting in the course of primary employment, we must rule that the court erred in granting summary judgment.

The judgment is reversed and the cause remanded for a trial.


author: STEPHENSON, Circuit Judge. GIBSON, Circuit Judge

text:
    UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Plaintiff-Appellant, v. GENERAL STEEL INDUSTRIES, INC., and The Equitable Life Assurance Society of the United States, Defendants-Appellees.
    No. 73-1675.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 11, 1974.
    Decided June 14, 1974.

      Carl Frankel, United Steelworkers of America, Pittsburgh, Pa., for plaintiff-, appellant.
    Edward K. Fehlig, St. Louis, Mo., for defendants-appellees.
    Before GIBSON, BRIGHT and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

This appeal raises the principal question of whether the Insurance Plan, Pension Plan, and Supplemental Unemployment Benefit Plan, which were covered by separate agreements but referred to in an Employer-Union basic collective bargaining agreement, are governed by the arbitration provisions in the basic agreement.

The dispute giving rise to this law suit arose a few months after the agreements involved were signed. In mid-December, 1972, appellee (Employer) announced its decision to permanently close two plants for economic reasons, including its St. Louis Car Division plant at which appellant (Union) represented a production and maintenance unit. On December 28, 1972, Employer mailed letters to each of its 500 employees already in a lay-off status advising them that their employment had been terminated effective December 15, 1972.

On January 4, 1973, the Union filed a grievance in behalf of all union members .who received the termination letters, alleging that the company had violated the existing collective bargaining agreement “by the sending of such notices and by the actions purported to be taken thereunder, including attempted termination of employees’ services and termination of certain insurance and other benefits.” The Union did not dispute the Employer’s right to close the plant but it did contend that the “attempt to terminate benefits to employees provided by the Vacation clauses, Insurance Plan, Pension Plan and Supplemental Unemployment Benefit Plan, as incorporated by reference in the collective bargaining agreement, [is] in direct violation of rights of its employees provided under said articles of the collective bargaining agreement.” The grievance stated that the Union was willing to waive all preliminary steps and refer the matter to immediate arbitration under Article Y, Section 5, of the basic agreement.

The parties were unable to agree upon the matters to be arbitrated. The Union ultimately demanded arbitration of issues arising under the basic agreement, the Insurance Plan, the Pension Plan, and the Supplemental Unemployment Benefit Plan.

The Employer would not agree to' arbitrate on these terms and the Union then commenced an action in the district court seeking an injunction compelling arbitration of all matters in dispute. The Employer did not dispute the Union’s right to arbitrate its vacation and seniority claims. However, it contended that the Union’s claims relating to benefits spelled out in the separate agreements were not arbitrable under the basic agreement.

Equitable moved that it be dismissed upon the ground it was not a party to the collective bargaining agreement.

This cause was submitted to the district court on a stipulation, affidavits, and briefs. The court dismissed the action against Equitable upon the ground that it was not a party to the collective bargaining agreement and the interpretation of its contract was not subject to arbitration.

Since Equitable’s rights and obligations cannot be determined in an arbitration proceeding under the labor contract, its motion to dismiss was prop-. erly sustained. See United Steelworkers of America, AFL-CIO et al. v. Mesker Bros. Industries, Inc., 457 F.2d 91 (CA8 1972).

The district court further ordered that the Employer and the Union submit to arbitration those differences which arose under the basic collective bargaining agreement, but that the differences arising under the Insurance Plan, the Pension Plan, and the Supplemental Unemployment Benefit Plan should not be so submitted. The court indicated it so reasoned because it found, “There is nothing in the collective bargaining agreement which indicates that the separate insurance agreements should in any way be subject to the terms of the collective bargaining agreement.” It found similarly with respect to the Pension Plan.

“The law compels. a party to submit his grievance to arbitration only if he has contracted to do so.” Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). Here the parties were bound by their 1972 collective bargaining agreement. Among other things the basic agreement provided for adjustment of grievances, which reads in part as follows:

Should any dispute or difference arise between the Company and the Union or its members employed by the Company as to the meaning, application, or operation of any provisions of this Agreement, or should trouble of any kind arise, there shall be no suspension or slowdown of work, or lockout, but such dispute or- difference shall be settled in the following manner [.]

There followed a detailed five-step procedure for the adjustment of differences between the Employer and the Union. The fifth step provided for binding- arbitration and it reads in part as follows:

An Arbitrator to whom any grievance shall be submitted in accordance with the provisions of this Section shall, insofar as shall be necessary to the determination of such grievance, have authority to interpret and apply the provisions of this Agreement, but shall not have authority to alter in any way the terms and conditions of this Agreement. Only questions as to interpretation or application of or compliance with the provisions of this Agreement may be submitted to an Arbitrator.

The Employer urges, as it did below, that the Insurance Plan, the Pension Plan and the Supplemental Unemployment Benefit Plan are separate agreements and are not subject to the arbitration procedure provided for in the basic agreement; that the separate agreement on the Pension Plan provides that disputes thereunder “shall be referred to an impartial umpire to be selected by the Company and the Union”; further, that during the 1969 negotiations the Union unsuccessfully proposed to change the appeals procedure in the Pension Plan to provide that differences be referred to an arbitrator to be selected in the manner provided in the basic agreement; that the Supplemental Unemployment Benefit Plan provides that if a company employee disagrees with a determination thereunder he should discuss the matter with a company representative, and if not resolved file a written request for review on a form provided by the company.

The Union contends that since Articles VIII, IX and X of the basic agreement make specific reference to the three plans, they are to be considered as included' in and governed by the basic agreement.

The fundamental dispute between the Employer and the Union in this case involves the Union’s contention that the employees whose work was discontinued by the closing were in “lay off” status, rather than “terminated,” and accordingly they were entitled to benefits contractually promised to laid-off employees. This involves a resolution of the critical question of whether the Employer’s closing of the plant entitled it to terminate the employees and thereby deprive them of benefits which they would enjpy if, as the Union claims, they remained in a lay-off status following the closing.

A reading of the separate agreements indicates that the answer to this question is to be found in interpreting the basic agreement and is thus subject to arbitration thereunder.

The general Pension Plan provides:

5. DETERMINATION OF CONTINUOUS SERVICE
1(b) Continuous service shall be broken by:
(1) Termination (if and when termination occurs pursuant to the Basic Agreement);

The other plans likewise require an interpretation of “termination” under the basic plan. Since the critical issue posed by the Union’s grievance involving the question of termination or layoff is to be determined by interpretation of provisions of the basic agreement, we are satisfied that the entire grievance should be submitted to arbitration as provided thereunder. .

In the Steelworkers Trilogy, we are taught that there is a presumption of arbitrability for labor disputes:

An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960).

We cannot say with positive assurance that the basic agreement is not susceptible of an interpretation that covers the asserted dispute.

The district court will enter an appropriate order directing the Employer and the Union to proceed with the selection of an arbitrator in accordance with the basic agreement and proceed with arbitration of all matters in dispute, including the dispute itself.

Affirmed in part, reversed and remanded for appropriate action in accordance with this opinion. Costs taxed 75 per cent to General Steel, 25 per cent to United Steelworkers.

GIBSON, Circuit Judge

(concurring).

I concur in the result reached by the majority. However, I wish to emphasize what I view as the narrow basis for holding that the disputes relative to the Pension, Insurance and Supplemental Unemployment Benefit Plans are arbitrable in this case. I cannot agree with the Union’s contention that the separate plans can be considered as a part of the basic agreement. Nor do I think the decision in this case should rest upon a general presumption of arbitrability of labor disputes.

I think it is clear from the language employed by the parties in the basic agreement and upon consideration of the provisions of the separate plans that the plans are in fact independent of and cannot be considered a part of the basic agreement. Further, in my view, the provisions of the arbitration clause in the basic agreement that “[o]nly questions as to interpretation or application of or compliance with the provisions of this Agreement may be submitted to an Arbitrator” would, in an ordinary dispute as to eligibility for benefits under one of the separate plans, bar resort to the arbitration provisions of the basic agreement. The provisions within the separate plans would govern resolution of these types of disputes.

However, the dispute in the present case is one that arises under the basic agreement and not under the separate plans. Its resolution depends upon the affected employees’ status as “layed-off” or “terminated”, a question that can only be answered by interpretation of the basic agreement. Each of the separate plans conditions eligibility upon an employee’s continuous service, and each plan provides that the determination of continuous service is to be in accordance with the provisions of the basic agreement. The dispute here relative to the separate plans concerns only how this continuous service is to be ■ calculated. Since such calculation can only be made with reference to the provisions of the basic agreement, the dispute is one arising under the basic agreement that the company has agreed to arbitrate.

The employees’ rights under any of the separate plans may be easily resolved once their status as “terminated” or “layed-off” is determined. Directing arbitration on all questions should conserve the parties’ energies, reduce costs, and permit a speedy determination of rights, benefits, and liabilities in this industrial dispute.

      . The Equitable Life Assurance Society of the United States (Equitable), which issued policies at the request of the Employer, was named as a defendant and invited to participate in the requested arbitration.

      . The Union’s statement of the issues it wished to arbitrate was as follows:
      1. Whether, under the General Pension Plan and the ■ basic agreement, affected employees continue to earn- age and continuous service for any or all pension purposes, and, if so, for what period of time?
      2. Whether, under the Group Insurance Plan and the basic agreement, affected employees continue their insurance coverage, and, if so, the extent and duration of such coverage?
      3. Whether, under the Supplemental Unemployment Benefit Plan and the basic agreement, affected employees are eligible for Supplemental Unemployment Benefits?
      4. Whether affected employees are entitled to vacation pay for the current Vacation Pay Year. If so, how should such pay be calculated and to what extent is the Minimum Vacation Pay Guarantee applicable?
      5. Whether the Company violated the basic agreement by purporting to terminate affected employees and by denying such employees the opportunity to exercise seniority rights provided under Article VI of said agreement?

      . The basic agreement refers to the three plans as follows:
      ARTICLE VIII INSURANCE PLAN
      The Company agrees that the Insurance Plan, as amended April 29, 1972, which is covered by a separate Agreement, shall be continued in effect until May 31, 1975.
      ARTICLE IX PENSION PLAN
      The Company agrees that the Pension Plan, as amended April 29, 1972, which is covered by a separate Agreement, shall be continued in effect until May 31, 1975.
      ARTICLE X SUPPLEMENTAL UNEMPLOYMENT BENEFITS
      The Company agrees that the Supplemental Unemployment Benefit Plan, as amended April 29, 1972, which is covered by a separate Agreement, shall be continued in effect until April 30, 1976, subject, however, to any changes that may be negotiated upon the expiration of this Labor Agreement.

      . Group Insurance Plan reads in part as follows :
      Termination of Employment [10.10]
      ■ If your employment is terminated, (when your continuous service is broken in accordance with the provisions of the Labor Agreement) all coverage under the Program will end at the time of such termination, except as noted in the section of this booklet entitled “Life Insurance” paragraph 1.1 and “Maternity and Obstetrical Benefits” paragraph 8.3.
      Supplemental Unemployment Benefit Plan reads in part as follows:
      8. DEFINITIONS
      “Continuous Service”: The continuous service of an employee as determined for pension purposes under the Company’s noncontributory pension plan.

      . United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).


author: PER CURIAM. FAIRCHILD, Circuit Judge

text:
    Harold LUCIE, Plaintiff-Appellant, v. KLEEN-LEEN, INC., Defendant-Appellee.
    No. 73-1626.
    United States Court of Appeals, Seventh Circuit.
    Argued April 11, 1974.
    Decided May 29, 1974.

      W. Thomas Johnston and Ross E. Morris, Peoria, 111., for plaintiff-appellant.
    Clifford E. Schneider, Peoria 111., for defendant-appellee.
    Before SWYGERT, Chief Judge, and FAIRCHILD and SPRECHER, Circuit Judges.
   PER CURIAM.

Plaintiff appeals from a grant of summary judgment in favor of the defendant. The plaintiff contends that the district court erred in construing the August 20, 1962 contract in that the district judge failed to allow extrinsic evidence which would have assisted in ascertaining the intention of the contracting parties. The defendant makes the counter argument that the language of the contract is plain and unambiguous and that the intention of the parties must be discerned solely from the language of the instrument itself without resort to extrinsic evidence. The sole issue before us is the propriety of the district court’s grant of summary judgment for the defendant. We are of the view that there exists genuine issues of material fact relative to the interpretation of the August 20, 1962 contract and as such this matter was not an appropriate one for summary judgment.

We cannot accede to the defendant’s assertion that no extrinsic evidence reflecting on the parties’ intentions should be considered. It is well-established that the test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether the instrument appears to be plain and unambiguous, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. A rule that limits the determination of the meaning of a written contract to its four-corners, merely because the court deems it clear and unambiguous, is a rule that ignores the intentions of the parties or presumes a degree of verbal precision and crystallization presently unattainable by our language.

Words do not have absolute and uniform meanings. The meaning of particular words or groups of words varies with the “. . . verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their users and their hearers or readers . ’, . . A word has no meaning apart from these factors; much less does it have an objective meaning, one true meaning.” Corbin, The Interpretation of Words and The Parol Evidence Rule, 50 Cornell L.Q. 161, 187 (1965).

Extrinsic evidence is admissible to establish the intention of the contracting parties. In addition, it is quite apparent here that the proffered extrinsic evidence presents numerous issues of material fact not properly disposable in a summary judgment motion.

Accordingly, we reverse and remand for trial and apply Circuit Rule 23.

FAIRCHILD, Circuit Judge

(concurring).

Under the August 20, 1962 agreement, plaintiff agreed to deliver seed stock sows, of a hybrid type known as Lucie swine, and he claims that he performed. The present dispute centers particularly about paragraph 3 of the agreement, providing for payment. Paragraph 3 provides :

“3. That said Corporation will pay to [plaintiff] in return, the sum of Thirty Five Thousand Dollars ($35,-000.00) in cash and Ten Thousand Dollars ($10,000.00) in the common stock of said Corporation. ... In addition thereto, said Corporation agrees to pay Seventy Five Dollars ($75.00) per boar for each Lucie boar used or sold by the Corporation, until the total sum of One Hundred Fifty Thousand Dollars ($150,000.00) has been paid.”

Pursuant to paragraph 3, plaintiff received the $35,000 cash, common stock valued at $10,000, and $19,800 in $75 payments. Defendant then changed its operations so that there was no further use or sale of Lucie boars, and no further $75 payments were made.

Plaintiff contends that defendant had an unconditional obligation to pay $195,-000 for the hogs he furnished, and that paragraph 3 merely established a convenient schedule for liquidation of the $150,-000 balance remaining after the initial payment of $45,000. He suggests that paragraph 4, applying a royalty at a lower rate thereafter, supports his view. Defendant reads the language of paragraph 3 literally, and argues, as the district court apparently concluded, that it had only to make the $75 payments if and when boars descendant from plaintiff’s stock were used or sold.

I agree with much that is said in the per curiam opinion. In order to give meaning to a written contract, a court should consider extrinsic evidence illuminating the persons, objects, and events to which its words apply. See, e. g., American Casualty Company of Reading, Pa. v. Reidy, 386 F.2d 795, 797 and n. 2 (7th Cir., 1967).

On the summary judgment motion, the parties presented a considerable body of evidence, in the form of depositions, answers to interrogatories, and accompanying documents, bearing on the dealings between the parties and the circumstances of the formation of the contract. Unfortunately, the district court did not set forth in the record any analysis of this material, but merely ordered the granting of summary judgment. This procedure handicaps us in our task of review.

Plaintiff asserted his own understanding of the arrangement, but this would not ordinarily be admissible at trial. There was a prospectus prepared at the time of defendant’s incorporation in January, 1962. Plaintiff finds in it an implication that defendant was to produce Lucie hogs exclusively. But such implication is difficult to discern. . It appears that plaintiff, as a director of defendant, later seconded a motion to authorize the use of other breeds, an act inconsistent with exclusivity.

On January 30, 1962, at the same time defendant was incorporated, plaintiff and others interested also formed a partnership by written agreement. The purpose of the partnership was to supply defendant with boars. Plaintiff agreed to provide 80 seed stock sows and they, together with services to be rendered, were valued in the agreement at $116,-000. On a pro rata basis, this agreement arguably indicates a value for the seed stock sows to be supplied under the August 20 contract very substantially in excess of $45,000. Ultimately the partnership activity was taken over by defendant corporation, and the stock turned over under the partnership agreement was counted toward plaintiff’s performance of the August 20 agreement.

The somewhat confused development of the relationship of the parties makes it difficult to say that defendant demonstrated the absence of a genuine issue of fact affecting the construction of paragraph 3 of the August 20 agreement. A trial would probably produce a more orderly development of the facts which might be relevant. On that basis, I am able to concur in reversal, although I feel it necessary to point out that it is not at all plain that, at best for plaintiff, he could make out a case for his construction.

       Our holding does not conflict with the parol evidence rule for although extrinsic evidence is not admissible to add to, detract from, or vary the terms of a written contract, these terms must first be determined before it can be decided whether or not extrinsic evidence is being offered for a prohibited purpose.

      . Paragraph 4 went on to provide:
      “In the event said sum of One Hundred Ninety Five Thousand Dollars ($195,000.-00) has been paid as aforesaid, then thereafter a royalty of Fifteen Dollars ($15.00) per boar shall be paid to [plaintiff] for each Lucie boar used or sold by said Corporation. ...”