author: McENTEE, Circuit Judge.

text:
    William ADDISON, Plaintiff, v. BULK FOOD CARRIERS, INC., Defendant and Third-Party Plaintiff, Appellee, v. JOHN J. ORR & SON, INC., Third-Party Defendant, Appellant.
    No. 73-1362.
    United States Court of Appeals, First Circuit.
    Argued Dec. 5, 1973.
    Decided Jan. 9, 1974.
    David Berman, Medford, Mass., with whom Michael T. Prendergast, Boston, Mass., was on brief, for appellant.
    Leo F. Glynn, Boston, Mass., with whom Glynn & Dempsey, Boston, Mass., was on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

Appellant, a stevedoring firm, was impleaded as third-party defendant in an action for negligence and unseaworthiness initially brought in September 1972 by one of its employees, Addison, against the owner of a vessel, Bulk Food Carriers, Inc., on which he was injured in July 1972. The third-party complaint, filed January 16, 1973, alleged that if Bulk Food was liable to Addison, then appellant was liable to the same extent to Bulk Food for breaching its warranty of workmanlike performance. Appellant moved for summary judgment dismissing the complaint on the ground that a recent amendment to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (1970), precluded its liability. The district court denied the motion, holding that the amendment did not apply retroactively to injuries incurred prior to its effective date, November 26, 1972. 863 F.Supp. 1016. We affirm.

As the district court pointed out in its well-reasoned opinion, there were several amendments to the Compensation Act in 1972. Together they effected a comprehensive revision of party rights where a longshoreman is injured while working on shipboard. One part of this revision was the elimination of stevedore indemnity to the shipowner on the theory of breach of a workmanlike performance warranty, the provision at issue here. The amendments further provided for increases in workmen’s compensation benefits payable to the injured longshoreman by his employer, the stevedore, and for abolition of the longshoreman’s right to seek recovery against the shipowner for unseaworthiness. See 33 U. S.C. §§ 905(b), 906(b)-(d), 907(a)-(i), 910(f)-(h) (Supp. II, 1972), amending 33 U.S.C. §§ 905-907, 910 (1970); Falletta v. Costa Armatori, 476 F.2d 316, 317 n. 1 (2d Cir. 1973); Bell v. Isthmian Lines, Inc., 363 F.Supp. 156, 159 (M.D.Fla.1973). Thus, the injured longshoreman lost a theory of recovery against the shipowner, previously established in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), but gained increased benefits from the stevedore. The shipowner lost the right to seek indemnity from the stevedore, previously established in Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), but gained freedom from one theory of liability for the longshoreman. The stevedore was obliged to pay increased benefits to the longshoreman but was no longer required to indemnify the shipowner.

Our reading of the legislative history, which includes explicit statements on point by congressional sponsors, convinces us that this intricate and interdependent revision of party rights was intended to have only prospective effect. Bell v. Isthmian Lines, Inc., supra, 363 F.Supp. at 159; see Eskine v. United Barge Co., 484 F.2d 1194, 1196 (5th Cir. 1973); Julian v. Mitsui O. S. K. Lines, Ltd., 479 F.2d 432, 434 (5th Cir. 1973). Indeed, even if the legislative history were silent, where Congress has nullified rights of recovery previously established by Supreme Court precedent we would in any event feel constrained to follow the long standing rule of construction that statutes be given only prospective effect unless Congress has unmistakably manifested a contrary intention. Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964); Union Pac. R. R. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S.Ct. 101, 58 L.Ed. 179 (1913).

Finally, the fact that the shipowner in the instant case did not file its third-party complaint against appellant until after the effective date of the 1972 amendments does not detract from the soundness of the district court’s conclusion. The critical date was that of the longshoreman’s injury. It was then that his rights vested against the shipowner and the shipowner’s rights in turn vested against the stevedore. Appellant’s other contentions are without merit.

Affirmed.

      . Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972, Pub.L. No. 92-576, § 18(a), 86 Stat. 1263, amending 33 U.S.C. § 905 (1970) (codified at 33 U.S.C. § 905(b) (Supp. II, 1972)) (emphasis added) : H jf: $ $
      “(b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person may bring an action against such vessel as a third party . . ., and the employer shall not he liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall he void .... The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.”

      . However, the longshoreman could still sue the shipowner on a theory of negligence. See 33 U.S.C. § 905(b) (Supp. II, 1972).

      . See 118 Cong.Rec. H 10,043 (daily ed. Oct. 14, 1972) :
      “Mr. BURTON: ...... * * *
      Does the gentleman from Minnesota (Mr. QUIE) concur in the judgment of the bill managers and of the subcommittee chairman (Mr. DANIELS) that any cause of action arising prior to the date of enactment of this legislation would be in no way aborted, frustrated, or reduced in any manner, shape or form?
      There are no existing remedies available to an injured longshoreman as of this date that would be affected or diminished for any cause of action arising prior to the effective date of this act. Any effort made through motions to dismiss actions in the Federal courts would be unavailing if this clear intention of the Congress is followed.
      * si: * *
      Mr. QUIE: The answer to the gentleman’s answer is ‘yes’.
      Mr. ECKHARDT: * * *
      I will state, in answer to the gentleman, that of course this bill is not retroactive.”


source: Caselaw Access Project

author: MOORE, Senior Circuit Judge:

license: Public Domain

text:
    Delia GONZALEZ et al., Plaintiffs-Appellants, v. COUNTY OF HIDALGO, TEXAS, and Weslaco Labor Camp et al., Defendants-Appellees.
    No. 72-1648.
    United States Court of Appeals, Fifth Circuit.
    Dec. 26, 1973.

      George P. Powell, Pharr, Tex., Robert H. Kern, III, Alice, Tex., for plaintiffs-appellants.
    Travis Heister, Edinburg, Tex., for defendants-appellees.
    Before BROWN, Chief Judge, MOORE  and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.

   MOORE, Senior Circuit Judge:

Delia Gonzalez appeals from the dismissal of an action brought on behalf of herself and three infant children in which she sought injunctive relief and damages based on a claim that appellees deprived her of the constitutional right to due process of law. In her complaint Mrs. Gonzalez alleged that she was denied due process when defendant-appel-lee landlord, the Housing Authority of Hidalgo County, Texas, (“the housing authority”), seized without notice or hearing, for nonpayment of rent, all her belongings from the - dwelling she was renting. The district court for the Southern District of Texas held that Mrs. Gonzalez had not been denied her constitutional rights and dismissed the complaint. We reverse and remand the case to the district court for the reasons discussed below.

We emphasize at the outset and throughout the opinion that we are not dealing with the validity of such clauses in private contracts between private parties. Rather we deal with admitted state action — the form of a contract executed by an arm of the State of Texas.

The facts, briefly summarized, are these. Plaintiff-appellant Delia Gonzalez, twenty years old and the mother of three at the time she commenced this action, was made a party to a lease contract in June of 1970 when her husband, Baldemar Gonzalez, a Mexican migrant farm laborer, executed a lease for housing in the Weslaco Labor Camp, a labor camp for migrant workers operated by appellee housing authority pursuant to Vernon’s Ann. Texas Revised Civil Statutes Article 1269k § 23a. The tenth clause of the form lease signed by Gonzalez provided as follows:

The tenant further agrees that the landlord shall have a lien for the payment of rent and all other obligations arising under this lease, upon all goods, chattels, fixtures and personal property of the tenant, which are or may be put on the leased premises, and on default of payment of any such obligations by the tenant, the landlord is hereby authorized to enter upon the premises and remove all and sell said goods, chattels, fixtures and personal property either at a public or private sale, without notice, and to apply the proceeds of such sale to the expense of foreclosure of this lien and the said unpaid obligations of the occupant, the balance, if any, of such proceeds, is to be paid to the tenant, [emphasis added]

Appellant and her husband and children lived at the Weslaco Labor Camp until October of 1970, at which time they locked up their apartment and migrated north to search for farm work, leaving behind certain items of furniture, household goods, and clothing. Neither appellant nor her husband informed the housing authority that they were leaving, or for how long. When they left, they owed rent for the month of October. The husband returned in December to pay the October rent, then went back up north to continue working. In January of 1971 appellant and her three children were abandoned by the husband in Illinois. In February she returned to the Weslaco Labor Camp to find that the housing authority had entered her premises and, pursuant to Clause 10 of the lease, had removed all her belongings for the non-payment of rent. In April she requested that her property be returned; she was informed that she would have to pay all the rent owing before the property would be returned. In May she was able to pay $20 of the amount owing. She still owes $105. On September 8, 1971, she instituted suit to recover her property, at which occurrence the housing authority returned certain of her belongings. Federal court jurisdiction was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1331.

On January 3, 1972, by Memorandum Opinion, the district court denied all relief and dismissed the action, holding that the contract was valid under Texas law and exempt from the restrictive provisions of the Texas Landlord Lien Law, Vernon’s Ann.Texas Revised Civil Statutes Article 5238a, and that the summary seizure of appellant’s property and its detention did not deprive Mrs. Gonzalez of her constitutional right to due process since her husband, by virtue of Clause 10 of the lease, had “knowingly waived by contract any pre-seizure notice.” In so ruling the court stated:

Judicial notice has been taken that form leases are put before tenants on an “accept this or get nothing” basis, and that needy tenants are compelled to sign without any real freedom of contract [citation omitted]. However, there is evidence before the Court that the terms and provisions of this contract were explained to Baldemar Gonzalez, prior to his signing on behalf of himself and Plaintiff.

Baldemar Gonzalez did not testify at the proceeding below. The district court did not specify what evidence was adduced by appellee housing authority to establish that Baldemar Gonzalez, apparently uneducated and speaking little English, had understood that he was waiving his and appellant’s constitutional rights to notice and hearing prior to seizure of their property. The narrow issue on appeal is whether the district court erred in ruling that, on the facts presented, appellant’s husband had validly waived the right to notice and hearing. Since we are of the opinion that the record is devoid of substantial proof that Gonzalez “voluntarily, intelligently and knowingly” waived a constitutionally protected right, Fuentes v. Shevin, 407 U.S. 67, 94-95, 92 S.Ct. 1983, 32 L.Ed.2d 556; rehearing denied, 409 U.S. 902, 93 S.Ct. 177, 34 L.Ed.2d 165 (1972); D. H. Overmyer Co., Inc. v. Frick Co., 405 U.S. 174, 185-86, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972), we vacate the district court order and remand for a finding on the important question of whether appellee housing authority presented evidence adequate to rebut the strong presumption against waiver of constitutional rights, Fuentes, supra, 407 U.S. at 94 n. 31, 92 S.Ct. 1983; Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177 (1937); Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1247, 16 L.Ed.2d 314 (1966) (“There is a presumption against the waiver of constitutional rights, * * * and for a waiver to be effective it must be clearly established that there was ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” [citations omitted]).

The Supreme Court in Fuentes v. Shevin, supra, and in numerous other cases, has clearly indicated that a heavy burden must be borne by the party claiming that a “voluntary, intelligent, and knowing” contractual waiver has occurred. In ruling that no contractual waiver had taken place in Fuentes upon appellant’s execution of a printed form conditional sales contract, the Court, 407 U.S. at 95, 92 S.Ct. 1983, noted several factors which bear on the type of printed form contract signed by Baldemar Gonzalez in the case before us:

The purported waiver provision was a printed part of a form sales contract and a necessary condition of the sale. The appellees made no showing whatever that the appellants were actually aware or made aware of the significance of the fine print now relied upon as a waiver of constitutional rights. * * * [Quoting from D. H. Overmyer Co., Inc. v. Frick Co., supra, the Court continued,] “where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the [waiver] provision, other legal consequences may ensue [i. e., no valid waiver will have occurred]

Precisely because, on this record, we are not satisfied that Baldemar Gonzalez was “actually aware or made aware of the significance of the fine print now relied on as a waiver of constitutional rights,” we remand the case to the district court under the authority, and in the light, of the Supreme Court’s decisions in Fuentes, Overmyer, and Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972), all decided after the district court rendered its January 3, 1972, Memorandum Opinion in this case.

It has been argued that in both Fuentes, supra, and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), the seizure of property without notice or hearing was authorized not by contractual agreement but by statute, a fact which, it is urged, renders those cases inapplicable to the contractual situation before us. See Comment, Prejudgment Wage Garnishment: Notice and Hearing Requirements under Sniadach v. Family Finance Corp., 11 B.C.Ind. & Com.L.Rev. 462, 471-75 (1970). A close reading of Fuentes, however, discloses that, even though the primary thrust of the majority opinion was to strike down the constitutionally repugnant Pennsylvania and Florida prejudgment replevin statutes for their failure to provide for notice or hearing prior to property seizures, both Mr. Justice Stewart, writing for the majority, and Mr. Justice White, writing for the minority, addressed the issue before us, namely, purported waiver of a constitutional right by contract.

In Fuentes one of the appellants, Mrs. Fuentes, who spoke little or no English, had signed two conditional sales contracts for the purchase of a gas stove and stereophonic phonograph set. Under the contracts, the Seller retained title to the items, but Mrs. Fuentes was entitled to possession “unless and until she should default on her installment payments,” 407 U.S. at 70, 92 S.Ct. at 1989, at which time, pursuant to the contracts, Seller, “at its option [could] take back the merchandise.” Id. at 94, 92 S.Ct. at 2001. Mrs. Fuentes made her installment payments for more than a year. Then, with only $200 remaining to be paid on the contract total of $600, a dispute arose between her and the Seller over the servicing of the stove. The Seller instituted an action in small-claims court for the repossession of both the stove and stereo set, claiming that Mrs. Fuentes had refused to make payments. Simultaneously the Seller, acting pursuant to procedures prescribed in the Florida prejudgment replevin statute, obtained a writ of replevin, without notice to Mrs. Fuentes, which was executed by a sheriff. The Florida statute authorizing these procedures was held to be constitutional by a three-judge statutory court. Fuentes v. Faircloth, 317 F.Supp. 954 (S.D.Fla.1970). A dissenting judge, however, believed that by the mere signing of a contract permitting repossession the signer “does not waive his Fourteenth Amendment right to ‘due process of law.’ ” Id. at 959.

The Supreme Court, per Mr. Justice Stewart, reversed, summarizing its holding in the following language: “We hold that the Florida and Pennsylvania prejudgment replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor.” 407 U.S. at 96, 92 S.Ct. at 2002. Writing in dissent, Mr. Justice White expressed his view that creditors in Florida and Pennsylvania could still do by contract what they could not now do by statute:

It would appear that creditors could withstand attack under today’s opinion simply by making clear in the controlling credit instruments that they may retake possession without a hearing or, for that matter, without resort to judicial process at all. 407 U.S. at 102, 92 S.Ct. at 2005.

Justice White’s observation, however, must be viewed with reference to Supreme Court majority pronouncements in several recent decisions of the Court; i. e., the majority opinion in Fuentes itself, and the Court’s decisions in D. H. Overmyer Co., Inc. v. Frick Co., supra, and Swarb v. Lennox, supra.

The majority in Fuentes addressed the “waiver by contract” argument presented by the Seller in that case. The conditional sales contracts there provided that upon default the Seller “may take back,” “may retake,” or “may repossess” the merchandise. Although the Court concluded that this contractual language “does not, on its face, even amount to a waiver,” 407 U.S. at 95, 92 S.Ct. at 2002, the Court’s analysis of Seller’s argument is instructive with respect to the case before us. Mr. Justice Stewart wrote:

Finally, we must consider the contention that the appellants who signed conditional sales contracts thereby waived their basic procedural due process rights. The contract signed by Mrs. Fuentes provided that “in the event of default of any payment or payments, Seller at its option may take back the merchandise. . . .”
* * * These terms were parts of printed form contracts, appearing in relatively small type and unaccompanied by any explanations clarifying their meaning.
In D. H. Overmyer Co. v. Frick Co., * * * the Court recently outlined the considerations relevant to determination of a contractual waiver of due process rights. Applying the standards governing waiver of constitutional rights in a criminal proceeding- — although not holding that such standards must necessarily apply — the Court held that, on the particular facts of that case, the contractual waiver of due process rights was “voluntarily, intelligently, and knowingly” made. The contract in Overmyer was negotiated between two corporations; the waiver provision was specifically bargained for and drafted by their lawyers in the process of these negotiations. As the Court noted, it was “not a case of unequal bargaining power or overreaching. The Over-myer-Frick agreement, from the start, was not a contract of adhesion.” Both parties were “aware of the significance” of the waiver provision.
The facts of the present cases are a far cry from those of Overmyer. There was no bargaining over contractual terms between the parties who, in any event, were far from equal in bargaining power. The purported waiver provision was a printed part of a form sales contract and a necessary condition of the sale. The appellees made no showing whatever that the appellants were actually aware or made aware of the significance of the fine print now relied upon as a waiver of constitutional rights.
The Court in Overmyer observed that “where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the [waiver] provision, other legal consequences may ensue.” (citations and footnote omitted) 407 U.S. at 94-95, 92 S.Ct. at 2001.

The majority concluded that the contract language purporting to waive Mrs. Fuentes’ constitutional right to due process had not in fact waived that right. 407 U.S. at 96, 92 S.Ct. 1983.

It is significant to note in Overmyer that, even though the Court affirmed the lower court’s finding of a contractual waiver, the Court emphasized the equality existing between the contracting parties (two corporations). The Court stated: “Our holding, of course, is not controlling precedent for other facts of other cases. For example, where the contract is one of adhesion, [and] where there is great disparity in bargaining power, * * * other legal consequences may ensue.” 405 U.S. at 188, 92 S.Ct. at 783.

In Swarb v. Lennox, supra, the companion case to Overmyer, the Court affirmed a three-judge district court decision which had held, inter alia, that confession of judgment clauses in consumer credit contracts did not constitute a waiver .of the right to notice and hearing as to those debtors with incomes under $10,000 who were relatively uneducated. We deem it significant that the Supreme Court approved the three-judge panel’s ruling that, since individuals in a class comprised of relatively poor and uneducated persons had been made to execute confessed judgments purporting to waive constitutionally protected rights, the contracts did not validly waive those rights since those persons had not knowingly and intelligently consented to waiver. The lower court drew important distinctions among members of the class who had signed such contracts. The lower court noted that where the debtor is an attorney, all that may be necessary to establish his understanding of a waiver provision is an affidavit of his profession; if the debtor is a non-high school graduate, however, far greater proof is needed:

Since the procedure used for entry of confessed judgments on the above-mentioned notes is based on the concept of a waiver of notice without adequate understanding by the debtor, it violates the due process clause of the Fourteenth Amendment. It is not our function to dictate to a state exactly what constitutes understanding waiver of notice in each particular case and what proof of such notice would comply with the above-mentioned decisions. Where the debtor is an attorney, all that may be necessary to prove that he understood the meaning and consequences of such a clause in a consumer financing note is an affidavit of such debtor’s profession. On the other hand, more proof may be required of non-high school graduates since the phraseology of the clauses in the notes offered in evidence is most difficult for laymen to understand.
* -X- -X- * * *
After a careful examination of the record, we find that there was no intentional waiver of a known right by members of the above class in executing the confession of judgment clauses. The evidence indicates that the debtors did not fully understand the rights which they were relinquishing by signing these notes, that is, the right to have notice and an opportunity to be heard prior to judgment -X- -X- -X-

Again adverting to the chronology of events in the case before us, on November 2, 1972 (ten months after the district court’s decision was handed down), this Court in Hall v. Garson, 468 F.2d 845 (5th Cir. 1972), having before it the Supreme Court’s June, 1972, decision in Fuentes v. Shevin, declared unconstitutional Article 5238a of the Texas Revised Civil Statutes, the Texas landlord lien law. In that case a landlord, through his agent, had entered appellant’s apartment to take a television set belonging to appellant, holding the set for past due rent. The landlord chose to act not upon any self-help provision appearing in the lease agreement but pursuant to Article 5238a, which granted to landlords a lien upon certain personal property not otherwise exempted from seizure by the Article, for rent due and unpaid by the tenant. The Article authorized peremptory seizure and retention of such property, without notice or hearing, until the rent owing should be paid. We held:

On the authority of Fuentes we hold that Tex.Rev.Stat.Ann. Art. 5238a works a “deprivation of property without due process of law insofar as [it denies] the right to a prior opportunity to be heard before chattels are taken from their possessor.” 468 F. 2d at 847.

Noting that a landlord’s seizure action pursuant to authority granted by Article 5238a “makes his actions those of the State,” 468 F.2d at 848, we held the Texas landlord lien law repugnant on the ground that it contained “no requirement that the landlord first have the validity or the accuracy of his claim impartially determined, or that a need for immediate seizure be present” (id.) before deprivation of a property right occurred. In Hall v. Garson, then, we expressed our disapproval of the (statutory) procedure whereby a landlord could, without notice, seize a tenant’s belongings for non-payment of rent.

It is true that the lien in the ease before us was created by contract, as was the authority to enter and remove, and that neither was dependent upon any statute. And since the actions taken by appellees were entirely consistent with the terms of the rental agreement, this, it is argued, requires affirmance of the lower court’s decision. That result would logically follow, were it not for the fact that this Court in Hall v. Gar-son, supra, and the Supreme Court in Fuentes, Overmyer, and Swarb v. Len-nox, supra, have spoken so strongly in terms of the notice required prior to a prejudgment taking of property (“[appellant's] possessory interest in the goods, dearly bought and protected by contract, was sufficient to invoke the protection of the Due Process Clause”, 407 U.S. at 86-87, 92 S.Ct. at 1997), especially when the contracting parties do not have equal bargaining power, and the tenant, as the appellants in Fuentes and Swarb v. Lennox, is uneducated and speaks little English.

The district court recognized that the lease executed by Baldemar Gonzalez was a contract of adhesion. The Court took judicial notice of the fact that form leases are offered to tenants on an “accept this or get nothing basis” and that needy tenants such as migrant farm laborer Gonzalez are compelled to sign without any real freedom of contract. See Santiago v. McElroy, 319 F.Supp. 284 (E.D.Pa.1970); Sellers v. Contino, 327 F.Supp. 230 (E.D.Pa.1971). Even if Gonzalez understood the contract language of waiver purportedly “explained to him” (and the evidence on this point is in need of clarification), it is not far-fetched to surmise that, under the circumstances, he would have signed any paper represented as a rental lease in order to secure shelter for himself and his family. Under these circumstances, it can hardly be said that his waiver of a constitutional right was “voluntarily, intelligently, and knowingly” made. In arriving at its decision the district court did not have the benefit of the Supreme Court decisions discussed supra, or this Court’s decision in Hall v. Garson, supra, none of which had yet been decided. We agree that Clause 10 of the rental lease appears to be clear on its face, to one who can read or understand English ; and the district court accepted ap-pellees’ assertion that the lease terms were explained to Gonzalez prior to his signing. Without more, however, these facts do not give rise to a finding that Gonzalez, signed with “an intentional relinquishment or abandonment of a known right or privilege,” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); nor, without more, is this evidence sufficient to rebut the presumption favoring the non-waiver of a constitutional right.

The district court also found that extraordinary circumstances existed which justified the summary seizure provision in the lease signed by Gonzalez. We do not find in this case any basis for placing the facts presented within the “extraordinary situation” category which, the Supreme Court has ruled, may justify a peremptory seizure of property without prior notice. The Supreme Court decisions make quite clear that an “extraordinary situation” justifying summary seizure must be “truly unusual,” that such a seizure must be “directly necessary to secure an important governmental or general public interest,” and that there must be a “special need for very prompt action.” Fuentes, supra,, 407 U.S. at 90-91, 92 S. Ct. at 2000. The types of extraordinary situations cited by the Court involved summary seizures of property “to collect the internal revenue of the United States, to meet the needs of a national war effort, to protect against economic disaster of a bank failure, and to protect the public from misbranded drugs and contaminated food” (citations omitted). Id. at 91-92, 92 S.Ct. at 2000. The case before us hardly rises to such levels of “extraordinariness”. Rather, as we ruled in our November 2, 1972, decision in Hall v. Garson, supra, rejecting the argument that a landlord lien situation is extraordinary in any way, “We have in the instant case no more than a private claim.” 468 F.2d at 848 n. 4.

Even if it be assumed, as appellees argued, that summary seizure helps conserve the housing authority’s financial and administrative resources, essential to the provision of low-cost housing, such financial considerations do not give rise to an “extraordinary situation” justifying the denial of constitutional rights. The Supreme Court in Fuentes expressly rejected such financial concerns when constitutional rights are at stake:

A prior hearing always imposes some costs in time, effort, and expense, and it is often more efficient to dispense with the opportunity for such a hearing. But these rather ordinary costs cannot outweigh the constitutional right, [citations omitted] Procedural due process is not intended to promote efficiency or accommodate all possible interests: it is intended to protect the particular interests of the person whose possessions are about to be taken. [Quoting from Stanley v. Illinois, 405 U.S. 645, 656 [, 92 S.Ct. 1208, 31 L.Ed.2d 551] the Court continued,] “. . . the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.” 407 U.S. at 90-91 n. 22, 92 S.Ct. at 1999.

In summary, we believe that the interests of justice are best served by vacating the judgment below and remanding this case to the district court, in order that the court may pass upon the issue presented in the light of the decisions in Fuentes, Overmyer, Swarb v. Lennox, and Hall v. Carson, supra. Private parties dealing at arms’ length certainly should have the right to agree upon whatever contract terms they may choose. This right, however, as the cases discussed above indicate, may be circumscribed by factors that are factually relevant. The district court adverted to one such factor, deemed significant in Overmyer, i. e., that printed form leases such as that executed by Baldemar Gonzalez “are offered to tenants [espe-dally to penurious migrant workers] on ‘an accept this or get nothing basis’ and that needy tenants are compelled to sign without any real freedom of contract.” In view of this fact, indeed, precisely because of this fact, we remand this case to the district court for a specific finding as to whether Gonzalez signed with “an intentional relinquishment or abandonment of a known right or privilege,” and whether he waived his constitutional right to due process “voluntarily, intelligently, and knowingly.” On the facts as presented by the record before us, the heavy burden imposed on appellees to rebut the presumption against waiver of constitutional rights, see Fuentes, supra, 407 U.S. at 94 n. 31, 92 S.Ct. 1983, has not been met. This panel will retain jurisdiction of the case. Upon the district court’s determination of the issue as stated supra, the cause will be returned to us.

We will await both a ruling by the district court and the expanded record before making a final disposition of this appeal.

Remanded.

      . For purposes of this decision we assume that the acts here complained of constituted state action within the meaning of the Fourteenth Amendment.

      . Left behind were a cooking stove, a refrigerator, a used lawn mower, a broken couch, two chairs, a dresser mirror, two beds and mattresses, a chest of drawers, a tub full of clothing, a bedspread, a small round table, an electric clock, and a child’s play horse.

      . We declared this statute unconstitutional on November 2, 1972, in Hall v. Garson, 468 F.2d 845 (5th Cir. 1972). Since the “restrictive provisions” exempting certain personal property from landlord’s liens (§3 following) were in effect at the time of the district court opinion, relevant parts of Article 5238a are reproduced here.
      Section 1. The operator of any residential house, apartment, duplex or other single or multi-family dwelling, shall have a lien upon all baggage and all other property found within the tenant’s dwelling for all rents due and unpaid by the tenant thereof ; and said operator shall have the right to take and retain possession of such baggage and other property until the amount of such unpaid rent is paid. * * *
      Sec. 3. Notwithstanding any provisions to the contrary * * * there shall be exempt from the lien set out in Section 1 of this Act, the following: * * *
      (1) one automobile and one truck, (2) family library and all family portraits and pictures, (3) household furniture to the extent of one couch, two living room chairs, dining table and chairs, all beds and bedding, and all kitchen furniture and utensils, * * *.
      Sec. 5. Nothing contained herein shall prejudice any contractual agreements entered into by lessors and lessees concerning the subject matter of this article.
      The district court ruled that, even though § 3, supra, which reflects the public policy of the State of Texas to protect certain items of property from landlords’ liens, did cover Mrs. Gonzalez’ seized property, the protection thereby afforded was vitiated by the operation of § 5, supra. We are not persuaded that the salutary public policy set out in § 3 was designed to be so easily circumvented as in a lease agreement where the parties do not deal at arms’ length. As the three-judge court in Laprease v. Raymours Furniture Co., Inc., 315 F.Supp. 716, 722-723 (N.D.N.Y.1970), cited in Fuentes v. Shevin, 407 U.S. 67, 72 n. 5, 92 S.Ct. 1983, 32 L.Ed.2d 556, reh. denied, 409 U.S. 902, 93 S.Ct. 177, 34 L.Ed.2d 165 (1972) correctly observed:
      Beds, stoves, mattresses, dishes, tables and other necessaries for ordinary day-to-day living are, like wages in Sniadaoh [Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349], a “specialized type of property presenting distinct problems in our economic system,” the taking of which on the unilateral command of an adverse party “may impose tremendous hardships” on purchasers of these essentials. * * *
      Lack of refrigeration, cooking facilities and beds create hardships, it would seem, equally as severe as the temporary withholding of % of Sniadach’s pay, and measured by Sniadaoh, the hardships imposed cannot be considered de minimus.

        We question whether a landlord, especially a creature of the state acting under color of state law, should be allowed to seize such property without notice. At the very least, any contractual waiver of notice prior to seizure should be made absolutely clear to a tenant waiving that right.

      . See also, Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Ohio Bell Tel. Co. v. Public Util. Comm’n, 301 U.S. 292, 307, 57 S.Ct. 724, 81 L.Ed. 1093 (1937).

      . See cases cited in text at, and in, note 4 supra.

      . Overmyer and Swarb v. Lennox were decided on February 24, 1972; Fuentes on June 12, 1972.

      . Fuentes was a consolidated appeal in which the Supreme Court decided two cases presenting the same issues: Fuentes v. Faircloth, 317 F.Supp. 954 (S.D.Fla.1970), and Epps v. Cortese, 326 F.Supp. 127 (E.D.Pa.1971).

      . Fuentes v. Faircloth, supra, 317 F.Supp. at 956.

      . Swarb v. Lennox, 314 F.Supp. 1091, 1100-1101 (E.D.Pa.1970).

      . Id. at 1100.

      . See note 3 supra.

      . See § 3 of Article 5238a, note 3 supra.

      . The district court properly ruled that the appellee housing authority can obtain lien rights no greater than those obtained by a private landlord:
      While this Court might feel that the Housing Authority of Hidalgo County, a creature of the State, should not extract from its tenants a greater lien than that created by statute, and that all articles exempt from the lien should have been returned to Mrs. Gonzalez, the Court feels that it cannot distinguish between the Housing Authority as a landlord and a private landlord, and therefore refuses to make such a distinction.
      District Court Memorandum Opinion of January 3, 1972, at 5-6.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard Allen CHAIKEN, Defendant-Appellant.
    No. 72-3139
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 26, 1973.
    Theodore Klein, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Harold Keefe, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Appellant was indicted under 21 U.S.C.A. § 841(a)(1) on two counts of knowing and intentional distribution of controlled substances and two counts of knowing and intentional possession with intent to distribute controlled substances. After his motion to suppress was denied on May 11, 1972, appellant pleaded guilty to one count of knowing and intentional possession with intent to distribute 468 grams of cocaine. In accepting the plea the District Court approved the Assistant United States Attorney’s agreement to allow appellant to reserve a right to appeal the denial of his motion to suppress. We have recently expressed our strong disapproval of accepting pleas of nolo contendere or pleas of guilty where the right to appeal non-jurisdictional defects has been reserved, United States v. Sepe, 5 Cir., en banc, 1973, 486 F.2d 1044, affirming United States v. Sepe, 5 Cir., 1973, 474 F.2d 784. Therefore we vacate appellant’s conviction and remand to the District Court so that appellant may withdraw his plea and determine whether to plead anew. Santobello v. New York, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427.


author: PER CURIAM.

text:
    Robert H. BUFFINGTON, Appellant, v. AMCHEM PRODUCTS, INC., Appellee.
    No. 73-1423.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 15, 1973.
    Decided Jan. 16, 1974.

      Dennis M. Gray, Council Bluffs, Iowa, for appellant.
    Emmet Tinley, Council Bluffs, Iowa, for appellee.
    Before GIBSON, LAY and HEANEY, Circuit Judges.
   PER CURIAM.

Plaintiff, Robert H. Buffington, an Iowa farmer, recovered a verdict in the amount of $7,000 for injury to his 1969 corn crop following his use of a 2, 4-D post-emergent herbicide. The chemical was made by the defendant Amehem Products, Inc. The actual product Buf-fington used was Amehem Weedone LV-4 (described as a butoxy-Ethanol formulation 2, 4-D). After verdict the trial court sustained the defendant’s motion for a judgment notwithstanding the verdict on the grounds that the evidence was insufficient to show that the defendant failed to provide an adequate warning as to the risks involved in the use of its product and second, that plaintiff lacked the jurisdictional amount to sue in a federal court. We reverse with directions to reinstate the verdict.

Plaintiff sprayed his crops in June of 1969 using a mixture of the Weedone LV-4 and water. The herbicide was dispensed by plaintiff’s equipment at the rate of slightly less than one-half pint of 2, 4-D mixed with five gallons of water per acre. Shortly thereafter his corn began to show signs of damage with a large percentage of the plants either “breaking off” or being seriously damaged. Plaintiff’s evidence establishes that the crop damage was the result of using defendant’s 2, 4-D product. The trial court granted a judgment notwithstanding the verdict, reasoning that the defendant had no duty to warn the plaintiff that certain weather conditions when coupled with the use of 2, 4-D could cause severe damage, because the plaintiff had or should have had prior knowledge of this fact.

Defendant’s position at trial was that plaintiff improperly applied the chemical. Defendant’s witness testified that plaintiff had not followed the mixing instructions and had applied the herbicide using too little water. The only mixing instruction the label gives is “Weedone LV-4 can be used in sprayers that apply 10 to 20 gallons per acre or sprayers that apply up to 200 gallons per acre.”

Plaintiff maintains that he did not know that it was necessary to use a minimum of 10 to 20 gallons of water per acre; and further that he had always used a five gallon sprayer with other herbicides and had had no prior difficulty. Plaintiff acknowledges that he knew that application of 2, 4-D would temporarily produce fast growth of the corn, making it brittle so that if high winds occurred the corn plants might break off. He denied, however, that he knew that fluctuations in temperatures could cause stress or that use of the spray when coupled with certain other conditions conducive to favorable growth could cause extensive damage to his crop.

We are governed by Iowa law. We find the evidence sufficient to establish that the defendant owed a duty to warn the plaintiff that (a) the mixture of this particular 2, 4-D product should be used with a minimum amount of water and (b) that after use of the herbicide if certain favorable growing conditions were present extensive damage could occur to a corn crop.

We further hold that the jury could find from the overall facts and circumstances that the plaintiff did not have sufficient prior knowledge as to the required usage of the product, as well as knowledge that extensive damage to his crop might follow under certain growing conditions.

Under Iowa law, a manufacturer who undertakes to produce and sell to the general public a product whose use could possibly result in harm must provide sufficient instruction and give adequate warning. The instructions should give reasonable notice and specific direction as to proper use and all attendant risks which are foreseeable to a manufacturer who possesses superior knowledge so that the ordinary user may be fully informed. Lakatosh v. Diamond Alkali Co., 208 N.W.2d 910 (Iowa 1973); West v. Broderick & Bascom Rope Co., 197 N.W.2d 202 (Iowa 1972). See also Comment, The Manufacturer’s Duty to Warn of Dangers Involved in Use of a Product, 1967 Wash.U.L.Q. 206.

In Lakatosh v. Diamond Alkali Co., 208 N.W.2d 910 (Iowa 1973), decided after the district court’s granting of the judgment notwithstanding the verdict, the Iowa Supreme Court offered the following comments on a supplier’s duty to warn:

A duty to warn depends on superior knowledge and is said to exist when one may reasonably foresee danger of injury or damage to one less knowledgeable unless adequate warning of danger is given. It is this reasonable foreseeability which triggers the obligation to warn, which must be determined by the circumstances of each case.
Whether notice or warning should have been given under particular circumstances, like most questions bearing on negligence, is ordinarily for the jury. It is only in exceptional cases that it may be determined as a matter of law.

Id. 208 N.W.2d at 913.

In Lakatosh the plaintiff, a truck driver, used his truck to haul a 2, 4-D weed killer manufactured by the Diamond Alkali Co. His truck was primarily used for transporting meat shipments. As a result of hauling the 2, 4-D plaintiff’s truck became permanently contaminated and could no longer be used for meat shipments. Plaintiff brought suit for damages, basing his case on the theory that the defendant should have wárned him of the possibility that his trailer could become contaminated if used to haul 2, 4-D. The trial court held as a matter of law that defendant was not obliged to give any warning but in any event the notice on the bag was sufficient. In reversing the trial court the Supreme Court of Iowa observed:

Nothing in this record justifies the finding as a matter of law that plaintiff needed no warning because he should have anticipated the disaster from knowledge he then possessed.
The most important witness on this subject was Dr. Carl Osueh, a chemist who appeared as an expert witness for plaintiff. A fair review of his testimony clearly makes a jury question of the warning issue. He testified to certain chemical reactions of 2-4-D on inert objects from both absorption and adsorption which would make the removal of offensive odors and residual effects of the product extremely difficult. We believe the doctor’s testimony would justify a jury in finding warning should have been given.

Lakatosh, supra at 914.

In West v. Broderick & Bascom Rope Co., 197 N.W.2d 202 (Iowa 1972), the plaintiff was an ironworker, who sued for personal injuries when a wire sling broke while it was being used to move tire presses. The argument was made that ironworkers were experts in the use of wire ropes and thus did not need a warning as to the capacity of the wire. The Iowa court ruled:

The rule in this jurisdiction is that in determining whether a fact issue is engendered, the evidence is viewed in its most favorable light to the party having the burden of proof, and that if reasonable minds would differ on the issue, it must be left to the trier of the facts. While Broderick & Bascom makes a persuasive argument, we think its argument is for the jury. We are not persuaded we should hold as a matter of law that no duty to warn existed because of the ironworkers' expertise. Eck v. E. I. du Pont de Nemours & Co., 393 F.2d 197 (7th Cir.); McKay v. Upson-Walton Co., 317 F.2d 826 (7th Cir.) (Swygert, J„ concurring); Rhoads v. Service Machine Co., 329 F.Supp. 367 (E.D. Ark.); Bean v. Ross Mfg. Co., 344 S.W.2d 18, 24 (Mo.) (“We decline to hold, as a matter of law, that defendant owed him no further duty to warn merely because he was a licensed plumber.”); see Note, 1968 Wis.L. Rev. 228, 236.

Id. at 211.

On the basis of the Iowa law discussed and the evidence in this ease, we do not think that this is such an exceptional case that it may be determined as a matter of law. Whether the notice or warning should have been given under the governing circumstances was, we think, a question for the jury. We find the trial court erred in granting the judgment notwithstanding the verdict.

JURISDICTION

The trial judge alternatively found that the defendant was entitled to a judgment notwithstanding the verdict because the plaintiff’s claim did not meet the requisite jurisdictional amount required by 28 U.S.C. § 1332. On this basis the court also assessed all costs to the plaintiff. We disagree. It is well established that the damage prayed for by the plaintiff controls the jurisdictional claim if the claim is made in good faith. In order to dismiss the plaintiff’s claim for failure to meet the jurisdictional amount it must appear to a legal certainty that the claim will not meet the necessary amount. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Sanders v. Hiser, 479 F.2d 71 (8th Cir. 1973); Euge v. Trantina, 422 F.2d 1070 (8th Cir. 1970); 1 J. Moore, Federal Practice ¶ 0.92 [1], at 832-833 (2d ed. 1972)

In the present case plaintiff’s complaint alleged he suffered damage in the amount of $11,112.50. At the trial the plaintiff was the only witness who testified or offered any evidence concerning damages. He arrived at his estimated loss by consulting his county extension agent on how much corn the average acre in his township yielded in 1969, what quality it was and its estimated worth.

It is immaterial that the jury eventually awarded the plaintiff only $7,000. What is important is that the assertions as to the losses the plaintiff suffered were made in good faith at the time his complaint was filed.

Judgment reversed and remanded to reinstate the verdict and enter judgment for plaintiff for the verdict including costs and interest.

      . A research assistant for defendant, Dale Bush, testified that he felt the plaintiff had used an improper amount of water. He related :
      In spraying liquids of the nature of Wee-done LV4, all of our labels read 10 to 20 gallons per acre because we feel this quantity of water uniformly spread over a given area, you have to have a minimum of 10 gallons to uniformly wet a plant to any degree.
      [T]he smaller the quantity of water you’re trying to disperse, the smaller your droplets sizes you’re breaking up and the wind will carry the spray over onto your neighbors, for example.

      . As the Supreme Court early noted in Barry v. Edmunds, 116 U.S. 550, 559, 6 S.Ct. 501, 506, 29 L.Ed. 729 (1886):
      It might happen that the judge, on the trial or hearing of a cause, would receive impressions amounting to a moral certainty that it does not really and substantially involve a dispute or controversy within the jurisdiction of the court. But upon such a personal conviction, however strong, he would not be at liberty to act, unless the facts on which the persuasion is based, when made distinctly to appear on the record, create a legal certainty of the conclusion based on them.

      . The plaintiff testified but for the damage lie would have harvested 125 bushels of # 2 corn per acre valued at $1.10 per bushel. There were 175 acres. This comes to 21,875 bushels worth $24,062.50. Eor 1969 plaintiff’s land produced only 12,950 bushels of inferior corn valued at $1.00 per bushel, thus worth $12,950.00. The cost in raising and harvesting the crop remained the same. Therefore plaintiff figured his damage by subtracting $12,950.00 from $24,062.50 arriving at the figure of $11,112.50. This method of ascertaining damages for injury to a growing crop is the recognized method of doing so. Martin v. Jaekel, 188 N.W.2d 331, 336 (Iowa 1972).


author: LIVELY, Circuit Judge.

text:
    Virgil Philip MARLOWE, Plaintiff-Appellant, v. FISHER BODY, a division of General Motors Corporation and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C.I.O., Local #596, jointly and severally, Defendants-Appellees.
    No. 73-1359.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 15, 1973.
    Decided Dec. 6, 1973.

      Henry A. Bornstein, Southfield, Mich., for Virgil Philip Marlowe; Bornstein, Wishnow & Young, Southfield, Mich., on brief.
    Charles Hodge, Washington, D. C., for U. S. Equal Employment Opportunity Commission as amicus curiae; William A. Carey, Gen. Counsel, Julia P. Cooper, Associate Gen. Counsel, Beatrice Rosenberg, Joseph T. Eddins, Jr., Attys., E. E. O. C., Washington, D. C., on brief.
    Richard J. Loftus, Jr., Detroit, Mich., for General Motors Corp; Ross L. Malone, Detroit, Mich., Atty. for General Motors Corp., on brief; Eugene L. Hart-wig, Edmond J. Dilworth, Jr., Jimie R. Wheatley, Robert N. Price, Russell J. Thomas, Jr., Detroit, Mich., of counsel.
    Edwin G. Fabre, Asst. Gen. Counsel, Detroit, Mich., for Local No. 596, International Union, UAW; John A. Fillion, Gen. Counsel, Detroit, Mich., on brief.
    Before WEICK, MILLER and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

This case was begun in the district court as an action for damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2(K)0e et seq. The original complaint was filed on August 5, 1970 and the only defendant was Fisher Body, a division of General Motors Corporation (hereafter General Motors). It was alleged in the complaint that by concerted action of its officers, agents and employees conspiring together General Motors had willfully deprived plaintiff of his civil rights by discriminating against him in his employment because of his religion and national origin. The complaint asserted that the plaintiff had been denied the valuable right of advancement or promotion and of overtime in an arbitrary and capricious manner because he is a member of the Jewish faith. The complaint stated that plaintiff had filed a charge of discrimination with the Equal Employment Opportunity Commission (hereafter EEOC) on July 9, 1969 and had received from EEOC on July 10, 1970 a notice of right to sue within 30 days. By its answer, General Motors denied that there had been a discriminatory refusal to grant overtime and promotion or other acts of discrimination. By an order dated September 13, 1971 plaintiff was permitted to add International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 596 (hereafter UAW) as a defendant and to file and serve an amended complaint within 20 days.

The amended complaint sought relief under the Civil Rights Act of 1866, 42 U.S.C. § 1981, as well as Title VII of the 1964 Act and asserted jurisdiction to proceed against UAW pursuant to provisions of the Labor Management Relations Act, 29 U.S.C. § 151 et seq. Plaintiff sought to have his action treated as a class action under Rule 23(b)(2), Fed.R.Civ.P. The court refused to permit plaintiff to proceed in this manner and there is no appeal from the order denying a class action. The amended complaint sought preliminary and permanent injunctions as well as damages. In addition to adopting the allegations of discrimination contained in the original complaint, the amended complaint asserted that UAW had been apprised of the situation and by collusion with General Motors was failing to represent the plaintiff in good faith. The collective bargaining agreements between UAW and General Motors were referred to and it was alleged that pursuant to these agreements the defendants “. . . have established a promotional and seniority system, the design, intent and purpose of which is to continue and preserve, and which has the effect of continuing and preserving, the defendants’ policy, practice, custom and usage of limiting the employment and promotional opportunity of Jewish employees of the Company because of religion or national origin.” It was further alleged that the amended complaint is based on a series of ineid-tents “ . . . continuously occurring over the plaintiff’s period of employment with FISHER BODY, and up to and including the present time or after the filing of the original Complaint. That the acts alleged are continuous in nature and have been and are occurring to the present date, that Equal Employment Opportunity Commission (EEOC) violations have been brought even after the first Complaint was filed and therefore this AMENDED COMPLAINT will air those issues and facts alleged in the original Complaint and perpetuated after the original Complaint was filed.” (emphasis in original)

Both defendants filed answers denying the material allegations of the amended complaint and raising affirmative defenses, including the alleged failure of the plaintiff to exhaust his administrative remedies under the collective bargaining agreement referred to in the amended complaint or his intra-union remedies under the constitution of UAW. They also asserted that the court lacked jurisdiction because of the alleged failure of the plaintiff to file charges with the EEOC within the time permitted by Title VII prior to bringing suit.

After taking the plaintiff’s deposition, General Motors filed a number of motions, some of which were ruled on by the court in a Memorandum Opinion filed January 26, 1972. The court denied a motion to strike references to 42 U.S. C. § 1981, holding that the statute in question was designed to deal with prejudice in the broadest sense and that prejudice against Jews is based upon race as well as religion. The court granted a motion to dismiss the class action claim and ordered that the action be limited to consideration of incidents arising subsequent to May 3, 1967, the date of a consent decree between the parties entered before the Michigan Civil Rights Commission.

Following further pretrial discovery, General Motors filed a motion to dismiss on the grounds that plaintiff had failed to file a timely charge with EEOC as required by 42 U.S.C. § 2000e-5(b) and (d); that 42 U.S.C. § 1981 can serve as a basis for jurisdiction of suits brought only by non-white persons, and that the applicable statute of limitations of Michigan barred any proceeding under 42 U.S.C. § 1981. UAW then filed a motion “for summary judgment or in the alternative to dismiss,” listing the same reasons as given in the General Motors motion and in addition relying upon the alleged failure of the plaintiff to exhaust his contractual and intra-un-ion remedies. The district court granted the motions of both defendants and dismissed the complaint.

In his Memorandum Opinion and Order, the district judge held that the court did not have jurisdiction because the plaintiff had failed to file his complaint with the EEOC within the time period prescribed in Title VII. He found that the discrimination complained of occurred on May 10, 1967 and that the claim was filed with EEOC on October 18, 1968 which was more than 17 months after the commission of the discriminatory act. He also held that the actual discrimination complained of by the plaintiff was not of a continuous nature since the plant must reach 100 per cent of its productivity in order for any employee to be eligible to work overtime and that each time such condition is met and plaintiff is denied overtime constitutes a separate violation. He thus held that the continuing violation doctrine does not apply to relieve the plaintiff of the 210-day limit prescribed in Title VII. The court also held that the applicable Michigan statute (M.C.L.A. § 423.307(b)) requires that a complaint be filed with the Michigan Civil Rights Commission (hereafter MCRC) within 90 days of the alleged act of discrmination. The court found that the complaint filed with MCRC on September 21, 1967 alleging a violation on May 10, 1967 was not timely. It was further held that failure to file a timely complaint with local or state authorities rendered the plaintiff ineligible to take advantage of the extended 210-day time limit contained in 42 U.S.C. § 2000e-5(d). The court also held that the complaint filed in the district court involved a different occurrence from the one referred to in the right to sue letter which was issued by EEOC on July 10, 1970. He found that the charges involved in the right to sue letter were not included in this action until September 28, 1971 with the filing of the amended complaint and that the amendment could not be related back to the date of the original filing under Rule 15(c), Fed.R.Civ.P. It was further held that the filing of the original complaint on August 5, 1970 was barred by the three-year Michigan statute of limitations relating to civil rights actions (M.C.L.A. § 600.5805(7)) in the absence of a statute of limitations specifically applying to 42 U.S.C. § 1981. Finally, it was held that plaintiff had not exhausted his internal union remedies and that such exhaustion is a condition precedent to the maintenance of any action against UAW.

Timely Filing Under Title VII

It is important to attempt to identify the various steps which the plaintiff took and to place them in chronological order. On September 21, 1967 plaintiff filed a complaint with MCRC alleging that the last act of discrimination occurred on May 10, 1967. This claim was assigned the number 3444-EM and apparently never was filed with EEOC.

On October 18, 1968 plaintiff filed a charge of discrimination with EEOC claiming that the last act occurred on October 6, 1968 “and continuing.” This charge was referred by EEOC to MCRC within 90 days, bearing file number TCL 9-0296. On January 7, 1969 MCRC wrote to EEOC referring to “Marlowe -vs- General Motors Corp.” by both file numbers, the one given the 1967 charge by MCRC and the one given the 1968 complaint by EEOC, thus apparently treating the two claims as one, though they referred to different dates on which discriminatory acts took place. On July 9, 1969 plaintiff filed another charge with EEOC claiming that both General Motors and UAW were involved in a conspiracy to restrict his income and harass him. In his September 21, 1967 claim which plaintiff filed with the MCRC (case # 3444-EM) the alleged violation was denial of overtime work and the date of the alleged violation was given as “May 10, 1967 and continuing.” In the complaint which plaintiff filed with EEOC (case file # TCL 9-0296) dated October 18, 1968 plaintiff claimed that he continued to be discriminated against by being denied overtime when production was working 100 per cent and the most recent date on which the discrimination took place was listed as “October 5, 1968 and continuing.” Question number 4 on the EEOC complaint is, “Have you filed this charge with a state or local government agency?” The answer which plaintiff gave to this was “Yes” and the date given was September 1967.

When the two instruments are read together it is obvious that plaintiff was attempting to describe a continuing course of conduct which involved a single charge of discrimination involving a number of different dates. However, EEOC did not rely on the prior claim of September 1967 which had never been referred to it, but notified MCRC by letter dated October 29, 1968 of the complaint of October 18, 1968. In its amicus brief EEOC argues that the October 29, 1968 letter to MCRC acted as a referral of the October 18, 1968 charge to the appropriate state agency in compliance with the requirements of 42 U.S.C. § 2000e-5(b). If the last act of discrimination in the charge was October 5, 1968, the reference to MCRC fulfilled the requirements of 42 U.S.C. § 2000e-5(b) and the formal filing with EEOC on May 8, 1969 was well within the 210 days after such practice as permitted by 42 U.S.C. § 2000e-5(d). Although there is confusion because of the different dates and the various filings with MCRC and EEOC, the holding in Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), leads us to the conclusion that the district court was in error in holding that it did not have jurisdiction of plaintiff’s Title VII claim against General Motors. In Love, the Supreme Court held that EEOC may act on behalf of a petitioner to initiate state proeeed-

ings. Although the Michigan Commission appears to have treated the September 1967 and October 1968 complaints as one charge, it is clear that they referred to alleged acts of discrimination which took place on different dates. We believe that the October 18, 1968 charge of discrimination was filed with EEOC in conformity with requirements of the Act and that the district court had jurisdiction of the action since the original complaint was filed within 30 days after receipt of the right to sue letter. To hold otherwise would be to rely upon technicalities which “ . . . are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.” 404 U.S. at 527, 92 S.Ct. at 619. In view of this holding it is not necessary to determine whether the “continuing violation doctrine” applies to extend the time for filing with EEOC.

The Section 1981 Claim

In his amended complaint plaintiff sought damages under 42 U.S.C. § 1981 as well as Title VII of the Civil Rights Act of 1964. General Motors argues that § 1981 is not available to a white person who has suffered discrimination because its provisions apply only to non-whites. However, no cross-appeal was filed by General Motors and the district court’s ruling on this question is not before us. Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191, 57 S.Ct. 325, 81 L.Ed. 593 (1937).

Section 1981 does not contain a statute of limitations and under settled authority the most analogous statute of limitations of the state where the deprivation occurred is applied. Krum v. Sheppard, 407 F.2d 490 (6th Cir. 1967). The fact that the amended complaint also referred to alleged breaches of contract (contract rights being specifically protected by § 1981) does not alter the fact that a deprivation of civil rights is primarily the violation of personal rather than property rights. Accordingly, the Michigan three-year statute of limitations (M.C.L.A. § 600.5805(7)) relating to an action for damages for injuries to the person applies. The record clearly discloses that an act of discrimination consisting of failure to grant advancement and overtime to plaintiff is alleged to have occurred on May 10, 1967. If the wrongful act did in fact occur on that date, then limitations began to run. The amended complaint seeks damages from General Motors for “a series of incidents and experiences continuously occurring over the plaintiff’s period of employment.” For purposes of the motion to dismiss these allegations must be taken as true. Wachtel v. West, 476 F.2d 1062, 1065 (6th Cir.), cert. denied, 414 U.S. 874, 94 S.Ct. 161, 38 L.Ed.2d 114 (1973). In Krum v. Sheppard, supra, the alleged deprivation of civil rights consisted of a single act and the court held that limitations began to run at the time that act was committed. In the present case, recovery under § 1981 of damages for injuries resulting from acts of discrimination which occurred more than three years prior to September 28, 1971, the date of filing the amended complaint, is barred by limitations. However, recovery based on acts occurring after September 29, 1968 is not thus barred. If the deprivation is a continuing act, or continuous series of acts, for purposes of limitations it is in the nature of a continuing trespass. Cf., Defnet v. City of Detroit, 327 Mich. 254, 258, 41 N.W.2d 539 (1950). The amended complaint did state a claim against General Motors under 42 U.S.C. § 1981 and only those acts of discrimination alleged to have taken place prior to September 29, 1968 are barred by limitations.

“The Conspiracy” Charge

On July 9, 1969, while his previous charges before MCRC and EEOC were pending, plaintiff filed a new charge of discrimination with EEOC alleging that General Motors and UAW had conspired by secret agreement to assign job duties which otherwise would have provided him with overtime opportunities to a different job category. It was alleged that the secret agreement was entered into about March 1, 1968, but not discovered by plaintiff until July 1, 1969. This charge was assigned case number YCLO 260 by EEOC and an investigation led to a finding on July 29, 1970 that there existed reasonable cause to believe that the conspiracy charge was true. Meanwhile, on July 10, 1970, EEOC issued its right to sue letter with respect to the October 18, 1968 complaint. When the original complaint in this action was filed on August 5, 1970 there was no mention of the “conspiracy charge” and General Motors was the only defendant. However, the complaint referred to the date of filing of charges with EEOC as July 9, the date the “conspiracy charge” was filed rather than October 18, 1968 or May 8, 1969, the date of notification and of formal filing of the original charge with EEOC. On April 12, 1971, EEOC issued a right to sue letter to plaintiff with respect to case number YCLO 260, the conspiracy charge.

The reference in the original complaint to the charge being filed before EEOC on July 9, 1969 was obviously an error since the original complaint did not name UAW as a defendant and could not, therefore, have sought relief based on “conspiracy charge.” The amended complaint brought UAW into the case and represented the first allegation in court of concerted action between General Motors and UAW. Since it was filed on September 28, 1971, more than 30 days after the issuance of the right to sue letter, the court lacked jurisdiction to consider the claims under Title VII. 42 U.S.C. § 2000e-5(e). It is argued by plaintiff and amicus, however, that his amendment relates back to the original complaint because it concerns subsequent events arising out of a continuing course of conduct which was challenged in the original complaint. While it is true that a complaint under Title VII may deal with all acts reasonably included in the EEOC investigation growing out of the particular charge of discrimination, Tipler v. E. I. duPont deNemours and Co., 443 F.2d 125 (6th Cir. 1971), nevertheless the amendment in this case sought to do more than just place before the court an additional act of alleged discrimination which had occurred subsequent to the filing of the original charge with EEOC. This court has held that an amendment which adds a new party creates a new cause of action and there is no relation back to the original filing for purposes of limitations. United States v. Western Casualty & Surety Co., 359 F.2d 521, 523 (6th Cir. 1966). The 1966 amendment to Fed.R.Civ.P. 15(c) which permits correction of misnomers does not permit the addition or substitution of new parties. Graves v. General Insurance Corporation, 412 F.2d 583 (10th Cir. 1969). Thus the plaintiff cannot recover under Title VII of the Civil Rights Act of 1964 for injuries resulting from the alleged conspiracy between General Motors and UAW.

In the amicus brief it is argued that even if plaintiff cannot pursue his conspiracy charge under Title VII, nevertheless the amended complaint states a claim upon which relief may be granted for the alleged acts of conspiracy under 42 U.S.C. § 1985(3). Section 1985(3) was not relied on in the pleadings nor was it apparently brought to the attention of the district judge in argument on the motion to dismiss. Since we have concluded that the case must be remanded, the issue will be dealt with in this opinion. This particular section was originally part of the Civil Rights Act of 1871. In Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Supreme Court held that § 1985(3) is concerned with all deprivation of equal protection of the laws or equal privileges and immunities under the laws. The elements of a conspiracy under § 1985(3) are enumerated in Griffin v. Breckenridge, supra, at 102-103, 91 S.Ct. 1790, and the amended complaint in this case must be tested by the requirements set forth therein. Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973); Azar v. Conley, 456 F.2d 1382 (6th Cir. 1972).

While the amended complaint does not use the word “conspire” or “conspiracy” it charges wrongful collusion and secret agreements between the defendants. Collusion is defined in Webster’s Third International Dictionary Unabridged, 1971 Ed., as “a secret agreement or secret cooperation for a fraudulent or deceitful purpose.” An example given is “a secret agreement between two or more persons to defraud a person his rights often by the forms of law.” We believe that the language of the amended complaint meets the requirement that a conspiracy be charged. The complaint also satisfies the other requirements of § 1985(3) in that it charges that the collusion of the defendants was for the purpose of depriving plaintiff of equal employment opportunities, that the defendants acted in furtherance of their agreement and the result was injury to the plaintiff. The amended complaint does contain a statement of the basis upon which the court’s jurisdiction under § 1985 (3) could be maintained. Fed.R.Civ. P., Rule 8(a) and (f). Since both defendants were before the court under other allegations of jurisdiction, there would be no prejudice to either of them in determining that jurisdiction exists under § 1985(3). Blanchard v. Terry & Wright, Inc., 331 F.2d 467, 469 (6th Cir.), cert. denied, 379 U.S. 831, 85 S.Ct. 62, 13 L.Ed.2d 40 (1964). 28 U.S. C. § 1653 provides that defective allegations of jurisdiction may be amended in trial or appellate courts. Upon remand the plaintiff will be permitted to amend for the purpose of asserting jurisdiction under 42 U.S.C. § 1985(3). The same holding with respect to limitations under § 1981 applies to § 1985(3). All acts pursuant to the alleged conspiracy which occurred prior to September 29, 1968 are barred by the three-year Michigan statute of limitations. Krum v. Sheppard, supra.

Claims Under the National Labor Relations Act

An employee who sues for enforcement of his rights under a collective bargaining agreement subject to § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), must ordinarily show that he has attempted to use the grievance procedure provided in the contract before seeking judicial relief. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). The collective bargaining agreement between General Motors and UÁW, filed as an exhibit in this case, contains a grievance procedure leading to binding arbitration. The national policy in favor of the use of arbitration enunciated by the Supreme Court is recognized. Nevertheless, there are situations in which it would be pointless to require exhaustion of contractual remedies as an absolute prerequisite to the right of a union member to file suit under § 301. Vaca v. Sipes, 386 U.S. 171, 185-186, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). In view of the allegation of collusion between the employer and the union for the purpose of discriminating against plaintiff, this case appears to present a reasonable exception to the requirement that contractual remedies be first exhausted before judicial relief is sought for failure to fairly represent a union member. Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 329-331, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969).

If the conditions alleged by the plaintiff provide an exception to the requirement of exhaustion of the contractual remedies, they would seem to provide an even stronger argument for not requiring that he exhaust his internal union remedies. We have held that a court “should look to the facts and equities of each case before enforcing . . . ” a requirement that all internal remedies must be exhausted before a union member may resort to court proceedings. McCraw v. United Association of Journeymen and Apprentices, etc., 341 F.2d 705, 711 (6th Cir. 1965). If the facts are as alleged in the amended complaint and in plaintiff’s deposition, which was before the court on UAW’s alternate motion for summary judgment, this is a case where requirement of exhaustion of internal union remedies would be a useless act. In Tipler v. E. I. duPont de-Nemours, supra, 443 F.2d at 128-129, we approved the method which the plaintiff has followed of proceeding, simultaneously under Title VII of the Civil Rights Act of 1964 and the National Labor Relations Act. In the instant case the court should proceed to deal with the charge of discrimination as set forth in the amended complaint without requiring that either contractual remedies or internal union remedies be exhausted.

Nothing in this opinion should be taken as an indication that the court has reached any conclusion on the merits of this case. Some of the contentions of the plaintiff as set forth in the complaint and amended complaint are imprecise and confusing. Nevertheless, taken as a whole, the pleadings of the plaintiff when tested by a motion to dismiss do state one or more claims upon which relief may be granted under the various federal civil rights acts. They also adequately charge UAW with failure to represent plaintiff properly in his efforts to be free of discrimination. In Azar v. Conley, supra, we quoted with approval the following language from Scher v. Board of Education of West Orange, 424 F.2d 741, 744 (3rd Cir. 1970):

A case brought under the Civil Rights Act should not be dismissed at the pleading stage unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. 456 F.2d at 1391.

No such certainty appears from an examination of the record before us.

The judgment of the district court is vacated and the case is remanded for further proceedings consistent with this opinion.

      . 42 U.S.C. § 2000e-5 provides, in part, as follows:
      (b) In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such jmactice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.
      * }*! * * *
      (d) A charge under subsection (a) of this section shall be filed within ninety days after the alleged unlawful employment practice occurred, except that in the case of an unlawful employment practice with respect to which the person aggrieved has followed the procedure set out in subsection (b) of this section, such charge shall be filed by the person aggrieved within two hundred and ten days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.
      (e) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) of this section (except that in either case such period may be extended to not more than sixty days upon a determination by the Commission that further efforts to secure voluntary compliance are warranted), the Commission has been unable to obtain voluntary compliance with this subchapter, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge (1) by the person claiming to be aggrieved, or (2) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Attorney General to intervene in such civil action if he certifies that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or- local proceedings described in subsection (b) of this section or the efforts of the Commission to obtain voluntary compliance.

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