author: EDWARDS, Circuit Judge. CELEBREZZE, Circuit Judge

text:
    Fred Dean MANNING, Petitioner-Appellant, v. Gale JARNIGAN, Sheriff, Respondent-Appellee.
    No. 73-1463.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 28, 1973.
    Decided July 30, 1974.

      R. Price Nimmo, Nashville, Tenn., for petitioner-appellant; Dale M. Quillen, Nashville, Tenn. (court appointed), on brief.
    Alex B. Shipley, Jr., Asst. Atty. Gen., for respondent-appellee; David M. Pack, Atty Gen. of Nashville, Tenn., of counsel.
    Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.
   EDWARDS, Circuit Judge.

This is an appeal from the denial without an evidentiary hearing of a petition for writ of habeas corpus. We reverse and remand for such a hearing.

Appellant had been convicted by a jury in a Tennessee state court on two charges of unlawful sale of legend drugs (barbituates) and one charge of unlawful possession of such drugs without a prescription, in violation of Tenn.Code Ann. §§ 52-1204 and 52-1206 (1966). On each count he received a sentence of five years imprisonment, with the three sentences to be served consecutively. His convictions were reversed by the Court of Criminal Appeals of Tennessee, the conviction for unlawful possession was dismissed, and two convictions of unlawful sale were remanded for a new trial. The Tennessee Supreme Court, however, reversed the Court of Criminal Appeals and reinstated the convictions. State v. Manning, Tenn., 490 S.W.2d 512 (1973).

The facts disclosed by the record of the state court trial include the following. Appellant was stopped by police while driving about 20 miles per hour in a 30 mile per hour zone about 4 a. m. in Morristown, Tennessee. The officer who arrested him called another squad car to the scene and then stopped appellant by flashing a spotlight on his car. The officer admitted that appellant was not violating any traffic law and that he had no reason to believe he had committed any crime. The officer testified at the state court trial that he stopped appellant because the chief of police had issued an order “to check out all cars late at night.” He testified that he thought this car was suspicious because it was out late and driving slowly.

Upon stopping appellant’s car, the first police officer on the scene testified that he recognized the driver as appellant whom he knew as a bootlegger. The officer testified that he then asked if they could search his car and that appellant said that they could and opened the trunk. Appellant testified that the officer told him to open his trunk and that he did. Two officers then searched the trunk and the car. They seized some books described as “sex books” and some women’s bikini pants from the trunk, and some pills and a pengun from the car.

Appellant contends that the search of the automobile was illegal and that the evidence seized should not have been admitted at the trial. The government asserts that appellant consented to the search. The first basis for appellant’s objection is that the stopping of appellant was unlawful because it was not based on probable cause.

Of course, “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). However, the circumstances in the case before us are different from those in Terry. This record offers no other explanation for the stop than the testimony of one of the officers that “we like to check them out to see who they are.”

The difference between an investigatory stop and an arrest has yet to be spelled out. See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The Supreme Court of the United States has said this about the question as to when an arrest occurs :

“When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete. It is, therefore, necessary to determine whether at or before that time they had reasonable cause to believe that a crime had been committed. The fact that afterwards contraband was discovered is not enough. An arrest is not justified by what the subsequent search discloses, as Johnson v. United States [333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436], supra, holds.” Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959).

This court has held:

“It appears to this court that the arrest was actually made by Officer Miller when he detained Baxter for the several minutes before Reimer’s arrival. The government concedes that this was an arrest. Further, this was clearly a deprivation of liberty under the authority of law. It does not take formal words of arrest or booking at a police station to complete an arrest. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Long v. Ansell, 63 U.S.App.D.C. 68, 69 F.2d 386 (1934), aff’d, 293 U.S. 76, 55 S.Ct. 21, 79 L.Ed. 208 (1934); Coleman v. United States, 111 U.S.App.D.C. 210, 295 F.2d 555 (1961) cert. denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613 (1962); cf. (dictum), United States v. Vita, 294 F.2d 524, 529-530 (C.A. 2, 1961), cert. denied, 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d 788 (1962).” United States v. Baxter, 361 F.2d 116, 118-119 (6th Cir.), cert. denied, 385 U.S. 834, 87 S.Ct. 79, 17 L.Ed.2d 69 (1966).

See also Young v. United States, 140 U.S.App.D.C. 333, 435 F.2d 405 (1970); Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305 (1967); Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976 (1966).

Our view on this score is strengthened by the recent opinion of the United States Supreme Court in Almeida-San-chez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In holding a stop and search of a car within 25 miles of the Mexican border to be invalid without a search warrant, the Court said:

“No claim is made, nor could one be, that the search of the petitioner’s car was constitutional under any previous decision of this Court involving the search of an automobile. It is settled, of course, that a stop and search of a moving automobile can be made without a warrant. That narrow exception to the warrant requirement was first established in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The Court in Carroll approved a portion of the Volstead Act providing for warrantless searches of automobiles when there was probable cause to believe they contained illegal alcoholic beverages. The Court recognized that a moving automobile on the open road presents a situation ‘where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’ 267 U.S., at 153, 45 S.Ct. at 285. Carroll has been followed in a line of subsequent cases, but the Carroll doctrine does not declare a field day for the police in searching autonlobiles. Automobile or no automobile, there must be probable cause for the search.

We recognize that Almeida-Sanchez is not precisely in point since in that case there was neither probable cause for the arrest nor even (as here) arguable consent to the search. (Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), where both probable cause for the stop (arrest) and voluntary consent to the search were found.)

We believe, however, in view of the deterrent purposes of the exclusionary rule (see United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), any illegal arrest must require suppression of the evidence subsequently seized as a result under the rationale of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). See also Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

Also applicable to our instant case is a recent case from the Ninth Circuit. In United States v. Mallides, 473 F.2d 859 (9th Cir. 1973), there was testimony that after a stop held by the court to be completely without probable cause, Mal-lides gave permission to examine the trunk which resulted in damaging evidence which was admitted at trial. The Court of Appeals reversed for dismissal of the indictment, holding:

“Neither the Supreme Court nor this court has ever upheld the legality of a detention based upon an officer’s unsupported intuition, and we refuse to do so now.
“The stop and detention were illegal, and the fruit of the illegal conduct was inadmissible.” United States v. Mallides, 473 F.2d 859, 862 (9th Cir. 1973). (Footnotes omitted.)

The critical question in our instant case appears to be when the arrest occurred. More precisely, was the appellant free to leave (at any time prior to the search) after the police officer flashed his spotlight on appellant’s car? The only trial record is that in the state court which did not focus on this question at all. Since the question is essentially an unresolved question of fact, we believe an evidentiary hearing and findings of fact are required.

If the first question is answered favorably to the prosecution, the second question to be answered after evidentiary hearing is: Based on the totality of the circumstances, was the consent to search appellant’s car freely and voluntarily given under the standards set for this in Schneckloth v. Bustamonte, 412 U.S. 218, 228-229, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ? Appellant had been stopped late at night; there were three armed officers on the scene; appellant had only a third-grade education and had been in a state hospital for the insane on six occasions; and appellant was never advised that he had the right to refuse to consent to the search. On cross-examination, however, he said that he knew he did not have to agree to the search, although the record does not make clear whether he knew this at trial or the time of the search.

Testimonial exploration of these facts will be required to answer the “consent” questions stated or implied above.

The search and seizure issues in this case, of course, pertain only to appellant’s conviction on the count alleging possession of legend drugs. He also attacks his convictions on all counts, including. two counts of sale of legend drugs, claiming due process violations in his state court trial.

In this regard appellant asserts that the conduct of the prosecuting attorney during trial was both improper and so prejudicial as to violate his federal constitutional right to a fair trial.

Three of the incidents relied on involve prosecutorial reference to appellant’s alleged prior involvement in criminal acts concerning bootlegging and other incidents of possession of legend drugs not charged in the indictment, and not probative of either scheme or intent.

Even more disturbing, there is evidence in this record that the prosecutor subsequently boasted in effect that he knew that his questions were objectionable, but that, even if they were stricken, the jury would not forget.

Finally, it is asserted that the prosecuting attorney made a prejudicial statement before the jury when he realized that he would not be able to make a closing argument, because appellant’s counsel had waived closing argument. The following exchange occurred between defendant’s counsel and the prosecuting attorney :

MR. QUILLEN: May it please the Court, we would like to be informed just what the remark was — if the Attorney General did make one awhile ago in the presence of the Jury. Was there a comment made ?
MR. WINSTEAD : Yes, I threw my notes back down on the table and I said that maybe I’d get to use that argument next year. I hope not against this defendant.
MR. QUILLEN: I think that was improper and I further renew my motion for mistrial.
MR. WINSTEAD: I think you’ve thought just about everything was improper, Mr. Quillen.

With regard to the prosecuting attorney’s conduct, we call attention to prose-cutorial duty as described by the Supreme Court:

“[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a. wrongful conviction as it is to use every legitimate means to bring about a just one.
“It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

Berger, of course, was a federal case wherein the Supreme Court’s superintending control afforded stricter supervision than is available to us in a federal habeas corpus proceeding attacking a state court conviction. But the facts we have referred to are disturbing enough to remand these issues also for an evidentiary hearing and findings of fact on appellant’s claims of federal due process violation. In this regard the District Judge will, of course, have to determine the issue in accordance with the recent opinion of the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), and decide whether “this incident made respondent’s trial so fundamentally unfair as to deny him due process.” Id. at 645, 94 S.Ct. at 1872.

The judgment of the District Court is reversed and the case is remanded for hearing in accordance with this opinion.

CELEBREZZE, Circuit Judge

(concurring in part, dissenting in part).

I agree with the majority that the police order to stop all cars out after midnight if, as the testimony indicated, “we think they’re suspicious out late like that,” was an arbitrary order and that the stopping of Appellant’s car was illegal under the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, I disagree that it is necessary to remand the case to the District Court for the purpose of taking evidence as to when, or whether, an arrest occurred prior to the search of Appellant’s automobile. I would apply the “totality of circumstances test” enunciated by the Supreme Court in Schenckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), to determine whether Appellant voluntarily consented to the search of his automobile. United States v. Watson, 504 F.2d 849 (9th Cir. Mar. 20, 1974); United States v. Rothman, 492 F.2d 1260 (9th Cir., 1973). In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Supreme Court held inadmissible statements claimed to have been freely given following an unlawful entry by six or seven officers into the defendant’s bedroom. The Court found that

“[u]nder such circumstances it is unreasonable to infer that Toy’s response was sufficiently an act of free will to purge the primary taint of the unlawful invasion.” 371 U.S. at 486, 83 S.Ct. at 417.

This suggests that circumstances could exist under which a voluntary consent could negate an unlawful entry. In balancing the circumstances involved in this case — armed officers physically larger than Appellant; the low degree of Appellant’s education and his previous confinements in a state hospital for the insane; the absence of any advice that Appellant had the right to refuse consent to the search; and Appellant’s testimony on the matter — I would find that Appellant had voluntarily consented to the search. At the hearing in the District Court, Appellant, on cross-examination, testified in the following manner:

Q Mr. Manning, you’re familiar enough with the law to know that you have the right not to let the man search your car without a search warrant ? Right ?
A Well, if I want to, I can.
Q You agreed to let him search the car? You knew you didn’t have to let him search your car ?
A Yes, sir.

The testimony does not reflect the use of any “inherently coercive tactics — either from the nature of the police questioning or the environment in which it took place.” Schneckloth v. Bustamonte, 412 U.S. at 247, 93 S.Ct. at 2058. Appellant, although he testified on this matter, gave no intimation that he felt he was under duress or was being coerced to cooperate. His statement that he knew he could refuse consent diminishes the significance of his lack of education and his previous hospitalization. I would agree that “arrest is but one factor, albeit a critical one, in determining whether or not the consent was voluntary.” United States v. Rothman, 492 F.2d 1260, 1264 n. 1 (9th Cir., 1973). However, Appellant’s concession seems to me to be clear. Thus, I would arrive at the same conclusion whether the facts constitute an unlawful arrest or an unlawful Terry-type investigative stop.

I also do not agree that a remand is necessary for any findings of fact relating to prosecutorial comments. The record demonstrates that the conduct of the prosecuting attorney during the trial was improper and prejudicial. On three occasions, reference was made to Appellant’s prior involvement in criminal acts not charged in the indictment. On one occasion, the prosecuting attorney asked Appellant:

“Well, now you examine this one right here and this one here, aren’t those both speckled birds? That’s what they’re known at in your trade, isn’t it, Mr. Manning, speckled birds ? ”

The Court sustained an objection to the phrase “in your trade,” but the jury was never instructed to disregard the statement. The second objection arose during the questioning of Appellant’s mother by the prosecutor:

Q Mrs. Shiflet, Dean Manning has been able to bootleg most of his life, hasn’t he ?
MR. QUILLEN: I’m going to object to that, if the Court please. I move for a mistrial because of it.
THE COURT: He may ask her what his occupation is. He can rephrase it.

Two other incidents occurred when Appellant was recalled to the witness stand:

Q You were there and you got 50 pills.
A I did not pay for no pills.
Q You didn’t pay for them, you got them though. You went up there to get them on a forged prescription from Dr. Lynch.
MR. QUILLEN: Your Honor, I object—
THE COURT: Sustained as to the forged. He may inquire of him if he got the pills at the drug store in Bulls Gap.
Q I’ll ask you Mr. Manning, if on Saturday, May 16th, 1970, at 4:30 p. m., if you did not appear in Steinson’s Drug Store in Bulls Gap, Hawkins County, Tennessee, and ask for 55 Oberdren capsules on a prescription from Dr. Lynch ?
A I went in there but I didn’t ask for no 50 pills.
Q You received a bag ?
A No, sir, I did not have it in my hand.
Q You didn’t have it in your hand? Dr. Stinson had it in his hand?
A Yes.
Q And that’s when you were arrested?
MR. QUILLEN: I object, if the Court please and move that it be stricken from the record.
THE COURT: Sustained as to the arrest.

Again, the jury was not instructed to disregard the statement by the prosecutor.

Coupled with this line of questioning was the prosecutor’s closing statement, quoted by the majority. In addition to these statements by the prosecutor, Appellant contends that the Court improperly permitted testimony about items found in Appellant’s car but not material to the case. These items were the “sex books” and bikini pants found in Appellant’s trunk and a pen gun found in the console of the car. The court overruled Appellant’s objections and, regarding the books and the pants, stated: “It’s for the jury to say whether they have a bearing on this particular ease.”

Regarding the cross-examination of Appellant, we have previously stated:

“It is clear that ordinarily on cross-examination a defendant may not be questioned as to whether he participated in unrelated specific acts of criminal conduct not resulting in a conviction, as such evidence has no relevancy to the issue of defendant’s guilt or innocence of the crime charged, and such evidence is likely to be extremely prejudicial.” United States v. Rudolph, 403 F.2d 805, 806 (6th Cir. 1968)

While the Court sustained Appellant’s objection, no instruction was given to the jury to disregard the questions. In Rudolph, supra, we reversed the conviction even though the jury had been given such an instruction:

“[w]e are of the opinion that the cautionary instruction did not remove the prejudice. It must be remembered that after the saber thrust, the withdrawal of the saber rUll leaves the wound.” 403 F.2d at 807

In the case before us, we have merely the court’s sustaining of the objection. I would find that insufficient to cure the prejudice to Appellant. Similarly, the question asked Appellant’s mother was also highly prejudicial. The reference to bootlegging had no bearing whatsoever on the charge against Appellant for possession of drugs. Upon Appellant’s objection, the Court merely required that the question be rephrased. This repeated reference to criminal acts not the subject of the trial was highly improper and a failure to give any cautionary instruction increased the possibility of prejudice.

In Rudolph, supra, even the cautionary instruction was not sufficient:

“The Government contends that the error was cured by the court’s instruction to the jury to disregard the question. While ordinarily the trial court has discretion to determine whether a cautionary instruction is sufficient to avoid granting a mistrial, we think that the question asked in this case was so clearly improper and prejudicial to the defendants that the harm could not be erased by any instruction which the court might give.” 403 F.2d at 806.

With regard to the statement by the prosecuting attorney at the close of the case, I find it to be a flagrant disregard for the high duty owed in prosecuting a case. The conduct of the prosecutor certainly does not comport with that duty as described by the Supreme Court in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). It is apparent to me that this conduct of the prosecutor was designed to improperly influence the jury. “That it was intended to prejudice the jury is sufficient ground for a conclusion that in fact it did so.” Pierce v. United States, 86 F.2d 949, 953 (6th Cir. 1936). I find my conclusion substantiated by an out-of-court statement made by the prosecutor and overheard by defense counsel and related to the Court:

I have a further thing, too, I’d like to bring attention to before the Court before we go any further. A new motion for a mistrial for the reason, Dean Manning, from the indictment of this trial, has been denied a fair trial by the District Attorney General’s comments and that General Winstead, with his experience, well knew the things that he was doing were wrong. I was having lunch, and he’s here hearing what I have to say, he may correct me if I’m wrong, I was having lunch within earshot of his table at which time he was talking with some people, including his witness, Nash, and some others and he commented on how he had asked a question about this defendant buying some pills either at Bulls Gap or Rog-ersville and said the defense could object all they wanted to then, the Jury had already heard it. I present this as highly improper and for that reason, the Attorney General knew it was unfair, denying this defendant a fair trial and I renew my motion for mistrial.
THE COURT: Were any of the Jurors present when he made that statement ?
MR. QUILLEN: No jurors present that I knew of.
MR. WINSTEAD: I try my lawsuits in Court. I don’t want any trouble.
THE COURT: Gentlemen, I believe in freedom of speech, wherever people go.
MR. QUILLEN: What I’m getting at is, the Attorney General asked an improper question, knowing that it was improper, caring less how much we objected to it, he knew the damage had been done when the Jury heard the questions.
THE COURT: Gentlemen, when you raised a proper objection, the Court sustained your objection. The record will disclose that at different times, there were no objections in certain of the testimony. And the Court will properly instruct the Jury when an objection is made to this Court.

Regarding similar conduct by a prosecutor, we have previously said:

“To those with any breadth of experience in the trial of criminal cases it must be clear that suggestions, especially when often repeated, that a defendant has earlier been in trouble with the law, that he has elsewhere or previously been indicted, that he has been frequently detained and investigated by law enforcement officers, and that he is a fugitive from justice, are so prejudicial that no admonition from the court that they be disregarded, however promptly and forcibly made, may be safely relied upon to free the minds of jurors from the impression that the defendant is of bad character and capable of committing the crime charged. They may completely overthrow the presumption of innocence.
* * * -» *
It is quite true that the court ruled correctly upon all objections interposed by the defendants, but in most instances the ruling came after the mischief had been done, and it was clearly a case where the misconduct of the prosecutors was neither slight nor confined to a single instance, but so pronounced and persistent that the cumulative effect upon the jury cannot be disregarded as inconsequential. Berger v. United States, 295 U.S. 78, [85], 55 S.Ct. 629, 632, 79 L.Ed. 1314. As was said in that case: “The trial judge, it is true, sustained objections to some of the questions, insinuations and misstatements, and instructed the jury to disregard them. But the situation was one which called for stern rebuke and repressive measures and, perhaps, if these were not successful, for the granting of a mistrial. It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken.” Pierce v. United States, 86 F.2d 949, 952-953 (6th Cir. 1936).

Since the jury was given no instructions to disregard the improper comments, there can be little doubt that they had a prejudicial effect.

I would also find that the testimony referring to the “sex books” and bikini pants and the pen gun found in Appellant’s car was not relevant to the case and was prejudicial to Appellant. Relevant evidence “is evidence that in some degree advances the inquiry, and thus has probative value,” C. McCormick, Law of Evidence 319 (1954). Its purpose is “to prove or disprove some issue in the cause on trial. If proffered evidence does not tend to do either of these things, it has no place in the trial and is either immaterial or collateral to the inquiry.” Herzog v. United States, 226 F.2d 561, 565 (9th Cir. 1955). The general rule is that the relevancy or materiality of evidence is a matter to be decided in the discretion of the trial judge. Wilson v. United States, 250 F.2d 312, 325 (9th Cir. 1958). However, as the “sex books,” bikini pants and pen gun had no value in proving any issue before the court, and the chance was great that its admission would be prejudicial, I would find that the court abused its discretion in admitting the evidence. See United States v. Johnson, 254 F.2d 175, 176 (2d Cir. 1958).

Thus, I would hold that the reference to prior criminal acts and the admission of prejudicial immaterial evidence “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristo-foro, 416 U.S. 637, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). I would reverse the judgment of the District Court and remand the case with direction that the District Court grant the writ of habeas corpus to Appellant unless the State of Tennessee grants him a new trial within a reasonable time to be fixed by the District Court.

      . This case is also clearly distinguishable from two recent cases, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). In both of those cases the officers involved clearly had probable cause for arrest.

      . E. g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629.

      . Moreover, “[n] either Carroll, supra, nor other oases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords.” Chambers v. Maroney, [supra], [399 U.S.], at 50, [90 S.Ct., at 1981.] See also Coolidge v. New Hampshire, 403 U.S. 443, 458-464, 91 S.Ct. 2022, 2033-2037, 29 L.Ed.2d 564]. Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973).


source: Caselaw Access Project

author: PELL, Circuit Judge.

license: Public Domain

text:
    Fernando GARZA, Plaintiff-Appellee, v. Maurice H. SIGLER, Chairman, U. S. Board of Parole, et al., Defendants-Appellants.
    No. 73-1570.

    United States Court of Appeals, Seventh Circuit.
    July 23, 1974.

      Before CUMMINGS, PELL and STEVENS, Circuit Judges.

       Consolidated with:
      Francisco Marizal v. Sigler, 73-1571; Carl McFadden v. Pickett, 73-1572; James D. Oree v. Reed, 73-1583; Paul Kirby v. Pickett, 73-1584; Rogerio Bella v. Pickett, 73-1831; Dillard Morrison v. Sigler, 73-1874; Roy J. Travis v. Sigler, 73-1844; Salvador Cantu Vasquez v. Sigler, 73-2011; Ronald Bowman v. Sigler, 73-1873; Joe M. Mendoza v. Sigler, 73-2012.

   PELL, Circuit Judge.

This matter is before the court on the motion for rehearing filed by the defendants-appellants.

The court by its opinion dated February 6, 1974, vacated the orders of the district court in the various cases on appeal and remanded for further proceedings in accordance with the opinion of this court.

For the reasons stated in the opinion this court held that the district court had reached the correct result but had applied an improper remedy.

Subsequent to the filing of the opinion in this case, the mandate of this court was recalled in view of the pen-dency in the Supreme Court of the United States of United States ex rel. Mar-rero v. Warden, 483 F.2d 656 (3d Cir. 1973).

On June 19, 1974, the Supreme Court rendered its opinion, reversing the Third Circuit and holding that 1 U.S.C. § 109 and Section 1103(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1294, barred parole eligibility, under 18 U.S.C. § 4202, for persons convicted, prior to May 1, 1971, under 26 U.S.C. § 7237(d), Warden v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974).

In view of the holding in Marrero, we are compelled to determine that the district court did not reach the correct con-elusion. Thus, the judgments of this court entered on February 6, 1974, are now vacated and set aside. It is further ordered that the orders heretofore entered in the district court shall be vacated and set aside and the petitions in the district court shall be dismissed.

These causes are remanded to the district court for proceedings in accordance herewith.


author: PER CURIAM:

text:
    In the Matter of the Grand Jury Proceeding re Will Lewis, Applicant. Will LEWIS, Applicant-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-2170.
    United States Court of Appeals, Ninth Circuit.
    July 19, 1974.

      David B. Finkel (argued) of Finkel & Herring, Barrett S. Litt (argued), Los Angeles, Cal., for applicant-appellant.
    Arthur W. Vance, Jr., Asst. U. S. Atty., (argued), Los Angeles, Cal., for respondent-appellee.
    Before KOELSCH, WRIGHT and TRASK, Circuit Judges.
   OPINION

PER CURIAM:

Appellant Will Lewis appeals from a judgment of the District Court finding him in contempt for refusing to produce a document and a tape recording pursuant to subpoena by the Grand Jury and for refusing to answer questions propounded by that body.

The judgment was entered on June 19, 1974, and commitment was ordered as of that date. Under the mandate of 28 U. S.C. § 1826 we issue this opinion within the 30 day period following the filing of appeal. We affirm.

Appellant Will Lewis is the Station Manager of KPFK, a local FM radio station with offices located in North Hollywood, California. On May 31, 1974, KPFK received a three-page mimeographed document purportedly issued by an organization calling itself “The Weather Underground,” which contained information relative to a recent bombing of a government building. KPFK made copies of the document available to law enforcement agencies, produced a news broadcast about the document, and turned over the original document to the custody of appellant. KPFK was not the only news media to receive a copy of that document; others received it as well, including the Los Angeles Times. On or about June 7, 1974, KPFK received a tape purportedly issued by “The Symbionese Liberation Army” which contained information relative to Patricia Hearst and William and Emily Harris. KPFK made tape dubs of that original, made copies available to law enforcement agencies, produced a radio program based upon it and turned over the original tape to the custody of appellant. Since that time, appellant has been in possession of both the original document and the original tape.

On June 3, 1974, the Federal Grand Jury for the Central District of California was investigating the possible violation of federal laws which it had good cause to believe involved the bombing of the office of the Attorney General of the State of California and the activities of the Symbionese Liberation Army within its jurisdiction. On that date it issued a subpoena duces tecum calling for Mr. David Finkel, attorney for the station, to appear forthwith and bring with him the original of the document the station had received from persons claiming to have been responsible for the bombing. On June 5, 1974, Mr. Finkel appeared but did not produce the document requested and did not answer questions with respect to it. He told an Assistant United States Attorney that he had given the letter in question to the Station Manager, Will Lewis. He also advised the Assistant United States Attorney that he intended to claim a privilege based upon the station’s right to protect the sources of news information.

Following the broadcast of the tape on June 7, 1974, the Grand Jury on June 11, 1974, issued a subpoena duces tecum to Will Lewis directing him to appear and bring with him both the letter and the tape. On June 12, Mr. Lewis appeared and stated that the document and the tape both existed and that he had access to them but that he had purposely refused to bring them before the Grand Jury. As to other questions, he declined to answer after consulting his attorney, Mr. Finkel, in an anteroom, on the ground that he was privileged to refuse under amendments to the United States Constitution numbers 1, 2, 3, • 4, 5, 6, 9 and 10.

Following this appearance the district court held a hearing during which the failure of Mr. Lewis to produce the evidence requested was recounted. The court thereupon on June 12, 1974, set June 17, 1974, as the time at which it would consider a- contempt citation. A formal motion for such a citation was filed at the court’s instruction on June 14. On June 17, the witness was granted immunity under 18 U.S.C. §§ 6001, 6002 and 6003, and directed to reappear before the jury on June 19 at 10:00 a. m. The court further directed that any further proceedings, if required, would be taken up at 2:00 p. m. on the same day.

On the morning of June 19 Mr. Lewis again refused to produce the two items of physical evidence requested or to answer questions. Thereafter and at noon, the court having accelerated the time for hearing, held an evidentiary hearing at which the court reporter for the Grand Jury read the questions asked and the answers given. The court then heard argument and adjudged Mr. Lewis in contempt and ordered his incarceration. Findings of Fact and Conclusions of Law were subsequently filed.

Appellant’s first argument is that he was not given procedural due process because of the summary and inadequate proceedings held by the court. We disagree. Recognizing the need for orderly process under Rule 42(b), Harris v. United States, 382 U.S. 162, 164-166, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965), we are of the opinion that appellant was accorded the process that was due under the rule. As early as June 3, 1974, it was made plain to the station manager and his attorney that the originals of the physical evidence would be required by the Grand Jury.

It was clearly announced in response that the custodian, Mr. Lewis, would refuse to produce them based upon his claimed First Amendment rights of free press and associational privacy. The demands of the Grand Jury continued until a motion for a citation for contempt was formally filed and the court announced on June 12 that a hearing would be held on June 17. That hearing was continued until June 19 and a request for a further continuance until June 24 was denied.

In United States v. Alter, 482 F.2d 1016 (9th Cir. 1973), we declared that ordinarily five days’ notice of a contempt hearing constitutes a reasonable time for a respondent to prepare his defense. We noted, however, a reasonable time might well vary depending upon the circumstances in a particular case. Here appellant was well aware more than a week before the hearing on June 19 not only that the Grand Jury wanted the document and tape, but that he would be cited for contempt if he refused to produce them. Moreover, by moving to quash the subpoena and filing a brief in support of his motion, he raised the very issues that were later asserted at the contempt hearing. In' these circumstances we fail to understand how Lewis was surprised or otherwise prejudiced.

Much of appellant’s argument based upon lack of time to prepare is predicated upon a Supplemental Memorandum filed by the Government on June 19, 1974, at the time of the contempt hearing. This memorandum, however, was in response to appellant’s Supplemental Memorandum of Points and Authorities in Support of Motion to Quash Subpoena Duces Tecum filed on Friday, June 14, prior to the hearing on Wednesday, June 19. To this memorandum was appended an affidavit of Will Lewis making for the first time the claim of illegal electronic surveillance. The Government’s response contained affidavits of denial of such surveillance.

Furthermore, if we permit a late filing of a bare claim of illegal electronic surveillance to establish a new date from which orderly due process in a proceeding under Rule 42(b) is to be measured, we invite the very mini-trials and preliminary evidentiary hearings which impede the work of the Grand Jury. United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

Here the appellant, as the station manager, and Mr. Finkel, his attorney, had been aware of the demand of the Grand Jury since June 3, 1974. Yet no claim of unauthorized surveillance had been made until June 14, just three days prior to the scheduled contempt hearing on June 17.

But more than that, we decide this case upon the somewhat narrow ground that the refusal of the witness to produce the original physical objects in this case does not involve an inquiry into claimed illegal surveillance. _ The evidence sought here was not “the primary product of an unlawful act” within 18 U.S.C. § 3504. The original document from persons claiming to have been responsible for the bombing of the office of the Attorney General in Los Angeles and the original tape with the message to the public from the Symbionese Liberation Army were not requested by the Grand Jury until their existence had been established by the acts of the radio station and Mr. Lewis. The tape, or presumably a copy of it, was played over the air on June 7, and the document was made public by broadcasting its contents on May 31 and the distribution of copies thereafter. It was after this occurred that the Grand Jury requested the originals and information from their custodian. No question of confidentiality of source could be present because the presence of the tape behind a mattress near the station was disclosed by an anonymous telephone call. The document was received by the station in a manner not disclosed. In either case the existence of the items was made known by the station itself and not as a result of electronic surveillance. The demand for their production for examination could not have been the result of exploitation of illegal acts within the meaning of 18 U.S.C. § 3504.

Likewise, questions relating directly to the physical objects themselves, such as their condition, any changes made by the witness during his custody, where, how and by whom they were discovered or received, would also not be within the proscription of the statute, but the subject of legitimate inquiry concerning the items involved. The questions which the Grand Jury directed to the witness, Lewis, were these kinds of questions and within the above limitations. We conclude that they were proper and the trial court so ruled.

Finally, appellant would persuade us that to compel production of the physical objects and to answer questions about them violated his First Amendment rights of free press and associational privacy. We recognize that appellant is not forsaken by the Constitution simply because a Federal Grand Jury would obtain information from him. As the Court said in Branzburg v. Hayes, 408 U.S. 665, 707, 92 S.Ct. 2646, 2670, 33 L.Ed.2d 626 (1972):

“Finally, as we have earlier indicated, news gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.” (Footnote omitted).

An examination of the relative posture of the parties before the trial court would clearly justify the resort to the subpoenas here. There was no evidence that the requests of the Grand Jury were in the course of “official harassment of the press” and not for legitimate purposes of law enforcement. The office of the Attorney General of California had been bombed and it was public knowledge that the Symbionese Liberation Army working with a willing or coerced Patricia Hearst had engaged in violent crime of recent date. The trial court found that the requests of the Grand Jury were entirely legitimate and justified. We find them overwhelmingly so.

Further, there was no request by the suppliers of the document and the tape to keep the information contained in them private or to withhold the articles themselves from examination. Even had there been such, the lesson from Branz-burg, swpra, is that such a request, either explicit or implict, may not override the authority of the Grand Jury.

Assuming, arguendo, that appellant has standing to raise the question, we are not convinced that the court was clearly erroneous in finding as it did that the interdepartmental guidelines for the issuance of subpoenas to news media were properly followed to the extent that they were applicable.

The judgment is affirmed.

The mandate shall be issued on the tenth day following the filing of this opinion.

      . The station had provided law enforcement officers and others a copy of the letter and a copy of the tape.

      . Finding No. 5 of the court was as follows:
      “5. That on June 7, 1974 at approximately 6:30 a. m. an employee at radio station KPFIC received a telephone call from an anonymous individual stating that a tape recording from Patricia Hearst had been placed behind a mattress at the rear of the station. The caller stated that the recording was in a manila envelope and directed that it be played over the air. The tape was played on the radio station at approximately 12:00 noon on that date.” C.T. at 73.

      . Finding No. 4 of the court was as follows:
      “4. That on May 31, 1974 Special Agent Kayleen Drissell of the Federal Bureau of Investigation (FBI) went to radio station KPFK, Los Angeles, California, in response to a telephone message from that station’s personnel in which they had informed the agent that they had received a letter from the Weather Underground Group in which letter this organization claimed responsibility for the bombing of the California State Attorney General’s Office which bombing had taken place at approximately 2:30 a. m. on that date.
      “Special Agent Drissell was informed by Will Lewis, station manager, that he would not be willing to supply the original letter itself, on the grounds that such refusal was justified in order to protect the confidentiality of the source of the information.” C.T. at 72-73.

      . Section 3504, in pertinent part, reads as follows: “ (a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States—
      “(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act;


author: BRIGHT, Circuit Judge.

text:
    NATIONAL RAILROAD PASSENGER CORPORATION, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY and the Texas and Pacific Railway Company, Appellees.
    No. 74-1203.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 17, 1974.
    Decided July 26, 1974.

      Andrew J. Valentine, Counsel, National R.R. Passenger Corp., Washington, D. C. and Kent E. Whittaker, Kansas City, Mo., for appellant.
    Kent Snapp, Kansas City, Mo., for ap-pellees.
    Before BRIGHT and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   BRIGHT, Circuit Judge.

Appellant-National Railroad Passenger Corporation (Amtrak) brought this action under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., to compel arbitration by appellee-Missouri Pacific Railroad Company (MoPac) of a dispute over the use of certain rail lines owned by MoPac’s subsidiary, appellee-Texas and Pacific Railway Company (Texas and Pacific). The district court dismissed Amtrak’s complaint. We reverse.

The background of the case is fairly simple. In March of 1974, a dispute arose between Amtrak and MoPae concerning the extent of service required to be furnished by the latter under their detailed agreement signed April 16, 1971 (the Basic Agreement). Amtrak proposed to initiate a passenger route between St.- Louis, Missouri, and Laredo, Texas, which would use, in part, rail lines between Texarkana, Arkansas, and Dallas, Texas, belonging to Texas and Pacific. Amtrak took the position that the Basic Agreement gave Amtrak the right to utilize this trackage, reasoning as follows:

1) In Section 3.1 of the Basic Agreement, MoPac had agreed to provide Amtrak with all services requested by Amtrak over MoPac’s “Rail Lines”;
2) The term “Rail Lines” is defined in Section 4.1 of the Basic Agreement as follows:
The “Rail Lines” of Railroad [MoPac] shall include all of its rights-of-way and real properties appurtenant thereto which constitute its trackage, whether owned or leased or otherwise held, and all of its rights to use such properties of others * *.
3) Texas and Pacific is 96.5 percent owned by MoPac;
4) MoPac has and holds itself out as having the right to use the tracks of Texas and Pacific;
5) Therefore, Texas and Pacific’s Texarkana-Dallas lines may be used by Amtrak under the Basic Agreement with MoPac.

The following events occurred on March 13, 1974 — the date of the first scheduled run of the proposed new rail service. MoPae notified Amtrak that it rejected the contention that the terms of the Basic Agreement gave Amtrak any rights to operate trains over Texas and Pacific rail lines, and that it refused to supply the requested services between Texarkana and Dallas. Amtrak immediately filed a Demand for Arbitration as required by the Arbitration Agreement, which was signed by MoPac and Amtrak and incorporated by reference into the Basic Agreement. When MoPac refused to submit the dispute to arbitration, Amtrak swiftly filed this action for specific performance of the arbitration clause of the agreement, joining Texas and Pacific as an ancillary party, and sought an injunction restraining defendants from denying or interfering with Amtrak’s use of the trackage in question on the St. Louis-Laredo route.

On the same day, the district court issued a temporary restraining order enjoining MoPac and Texas and Pacific from denying Amtrak the use of the lines in question, apparently taking into consideration the fact that the train — already loaded with passengers and public officials for its inaugural run — was scheduled to depart momentarily. Contemporaneously, the court issued its order to show cause why a preliminary injunction should not be granted, returnable two days later. At the show cause hearing, the district court heard testimony in support of the contentions of the parties. Following the hearing, the district court dissolved the restraining order, denied any injunctive relief, and dismissed the action, entering a final, appealable order as requested by Amtrak. The trial court concluded:

The overwhelming weight of the evidence received at the evidentiary hearing of this cause establishes that although Missouri Pacific Railroad owns approximately 96.5% of the stock of Texas and Pacific Railroad, and the two Railroads do share approximately 9 members of their respective Boards of Directors, the Texas and Pacific Railway is an independent and separate entity from the Missouri Pacific Railroad, and the Missouri Pacific Railroad has no “right to use” the trackage, properties, or services of the Texas and Pacific Railroad.

This appeal followed.

The sole issue before us is whether Amtrak’s claim regarding Texas and Pacific’s Texarkana-Dalias rail lines presents an arbitrable dispute. The relevant provisions of Section 6 of the Basic Agreement between Amtrak and MoPac states that:

[A]ny claim or controversy between NRPC [Amtrak] and Railroad [Mo-Pac] concerning the interpretation, application, or implementation of this Agreement shall be submitted to binding arbitration in accordance with the provisions of the Arbitration Agreement * * *.

We think that the present dispute is one “concerning the interpretation, application, or implementation” of the Basic Agreement and is therefore arbitrable.

Long ago, Congress enacted the Federal Arbitration Act, Act of Feb. 12, 1925, c. 213 et seq., 43 Stat. 883 (now 9 U.S.C. § 1 et seq.), to make arbitration agreements “valid, irrevocable, and enforceable,” 9 U.S.C. § 2. This legislation overruled long-standing judicial precedents, which had refused to enforce agreements to submit justiciable controversies to arbitration on the grounds that they were contrary to public policy. In their stead, a host of new precedents have now arisen, proclaiming “the federal policy to construe liberally arbitration clauses.” Metro Industrial Painting Corp. v. Terminal Construction Co., 287 F.2d 382, 385 (2d Cir. 1961). The motivation for this policy has been noted by the Supreme Court in Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), where it was said: “The United States Arbitration Act establishes by statute the desirability of arbitration as an alternative to the complications of litigation.” Id. at 431, 74 S.Ct. at 185.

In order to further the use of arbitration as a method of expediting the disposition of commercial disputes and as a means of eliminating the expense and delay of extended court proceedings preliminary to arbitration, Congress provided in 9 U.S.C. § 4 an abbreviated procedure for obtaining specific enforcement of arbitration agreements. Although'the district court has the responsibility of determining whether or not a particular dispute is arbitrable, see Necchi v. Necchi Sewing Machine Sales Corp., 348 F.2d 693, 696-697 (2d Cir. 1965), cert. denied, 383 U.S. 909, 86 S.Ct. 892, 15 L.Ed.2d 664 (1966), its role in that review is distinctly limited. The applicable standards for this review have been succinctly set forth by the Seventh Circuit in Galt v. Libbey-Owens-Ford Glass Company, 376 F.2d 711 (7th Cir. 1967), where the court stated:

Under the Federal Arbitration Act, the courts have been assigned the limited role of “ascertaining whether the party seeking arbitration is making a claim which on its face is one governed by the agreement”. International Telephone and Telegraph Corporation v. Local 400, 286 F.2d 329, 330-331 (3rd Cir. 1961). As Judge Frank put it in Reconstruction Finance Corporation v. Harrisons & Crosfield, 204 F.2d 366, 368, 37 A.L.R.2d 1117 (2d Cir. 1953), certiorari denied, 346 U.S. 854, 74 S.Ct. 69, 98 L.Ed. 368:
“the provisions of that [Federal Arbitration] Act — 9 U.S.C. § 4— * * * make it clear that a federal court, in a suit asking it to compel arbitration, should (except as noted below in discussing laches) deal with no issues except (1) the making of an agreement to arbitrate, and (2) the failure, neglect or refusal of the other party to perform that agreement.”
The policy of the Federal Arbitration Act is to promote arbitration to accord with the intention of the parties and to ease court congestion. Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402, 410 (2d Cir. 1959), certiorari dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37. All doubts are to be resolved in favor of arbitration. Metro Industrial Painting Corp. v. Terminal Construction, 287 F.2d 382, 385 (2d Cir. 1961). Whenever possible, the courts will use the Federal Arbitration Act to enforce agreements to arbitrate. See Monte v. Southern Delaware County Authority, 321 F.2d 870, 874 (3d Cir. 1963). [376 F.2d at 714.]

To be sure, a frivolous or patently baseless claim should not be ordered to arbitration, but the court’s function in an action to compel arbitration may not extend beyond ascertaining whether the party seeking arbitration has made a claim which on its face is governed by the contract. See Hamilton Life Insurance Co. of New York v. Republic National Life Insurance Co., 408 F.2d 606, 609 (2d Cir. 1969).

Although arbitration of labor disputes can and should be distinguished from commercial arbitration, United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), the cases in the labor field as exemplified by the Steelworkers trilogy do illustrate the general requirement that courts give arbitration agreements “full play.” In that regard, the following statements of the Supreme Court are relevant:

The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. In these circumstances the moving party should not be deprived of the arbitrator’s judgment, when it was his judgment and all that it connotes that was bargained for.
The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious. The processing of even frivolous claims may have therapeutic values of which those who are not a part of the plant environment may be quite unaware. [United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 567-568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960) (footnotes omitted).]
* * * * * *
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) (footnote omitted).]

Here, the trial court was only called upon to determine whether there was facially raised a colorable dispute within the framework of the arbitration agreement by Amtrak’s contention that the “Rail Lines” of MoPac as defined by the Agreement encompassed the trackage of Texas and Pacific because of the subsidiary relationship between the two. Amtrak supported the contentions in its pleading with evidence showing that MoPac owned substantially all of Texas and Pacific’s stock and thereby controlled the election of Texas and Pacific’s Board of Directors. Amtrak also introduced evidence that MoPac holds itself out to the public as operating a single system of rail service over its lines and those of Texas and Pacific. Amtrak thus demonstrated a colorable basis for, and the arbitrable nature of, its claim that the existence of the Basic Agreement obligated MoPac to provide Amtrak services and facilities on the rail lines of its subsidiary railroad, Texas and Pacific.

Upon evidence introduced by MoPac and Texas and Pacific of the fact of their separateness and of the independent operations of each, however, the district court proceeded to resolve the factual elements of the controversy, stating as follows:

The evidence before the Court in this cause establishes beyond any reasonable doubt that the Texas and Pacific Railroad is not a party to any contract with plaintiff regarding the use of the trackage in question. Furthermore, there is no reasonable inference to be drawn from the Agreement between plaintiff and Missouri Pacific which would, in the light of the evidence adduced, cause the term “Rail Lines” as used in the agreement to include the trackage of Texas and Pacific Railroad Company. In light of the evidence before this Court, to require the Texas and Pacific Railway to provide the requested services to plaintiff, while the Missouri Pacific Railroad and plaintiff “arbitrate” whether plaintiff has this right under plaintiff’s contract with Missouri Pacific, would be to totally disregard the fact that the Missouri Pacific Railroad and the Texas and Pacific Railway are separate corporate entities. Plaintiff has failed in its proof to establish any reason why these separate and distinct entities should be merged and treated as a single corporation. The evidence establishes that heretofore plaintiff considered the corporations separate by attempting to negotiate separate contracts for the use of the trackage of the two railroads. And, plaintiff’s evidence fails to establish that both railroads should now be brought under the terms and conditions of the Contract which plaintiff has entered with Missouri Pacific.
Because of the strong weight of the evidence in favor of the position of the defendants, the Court declines to order that the question of whether the term “Rail Lines” includes the track-age of Texas and Pacific Railway, a separate legal entity not a party to the contract be submitted to arbitration. To require this separate entity to provide the services demanded by plaintiff without provision for its compensation and potential liability would not, under the facts of this case, be justified.

The district court erred in proceeding to the merits of the dispute. The record clearly establishes a controversy between the parties as to whether Texas and Pacific’s rail lines may be used by Amtrak under the Basic Agreement with MoPac. That being so, the dispute ought properly to have been submitted for arbitration.

Reversed and remanded for entry of an order consistent with this opinion.

      . Amtrak is a “for profit” corporation, created pursuant to the Rail Passenger Service Act of 1970, 45 U.S.C. § 501 et seq., and organized under the laws of the District of Columbia to provide intercity rail passenger service throughout the United States.

      . On March 20, 1974, Amtrak filed an application with the Interstate Commerce Commission, under the provisions of 45 U.S.C. § 562(c), seeking an order requiring Texas and Pacific to make its Texarkana-Dallas lines available for the duration of the “emergency” occasioned by the dispute between Amtrak and MoPac over the rail lines. On March 21, 1974, the ICC issued that order, which continues in effect until an agreement between the parties is reached, but in no event beyond November 30, 1974.

      . In its brief on appeal, Amtrak argues that “the parties have agreed to submit to the arbitrator not only questions of contract interpretation, but the question of whether or not a dispute has arisen which is on its face within the scope of the agreement to arbitrate,” and for that proposition cites an unpublished opinion of Judge Edward J. Devitt, construing an identical agreement. See Burlington Northern Inc. v. National Railroad Passenger Corporation, No. 3-72-Civ-264 (D.Minn., filed Feb. 9, 1973). The question of whether arbitrability is a matter solely for the arbitrators, however, was not raised by appellant-Amtrak in its original complaint or at any other time at the trial stage, and is therefore not properly before us. We express no opinion on this issue. Of. note 6 infra.

      . For a scholarly dissertation on the history of judicial attitudes towards the enforcement of arbitration agreements, see Judge Jerome Frank’s opinion in Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 982-985 (2d Cir. 1942).

      . 9 U.S.C. § 4 provides :
      A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five day’s notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such an issue is raised, the party alleged to be in default may, except in cases of admiralty, on or before the return day of the notice of application, demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure, or may specially call a jury for that purpose. If the jury find that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury find that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.

      . 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).

      . The majority of the members of the Board of Texas and Pacific are members of the Board or employees of MoPac or of Texas and Pacific.


author: PER CURIAM: WINTER, Circuit Judge FIELD, Circuit Judge. WINTER, Circuit Judge

text:
    Charlie J. SINGLETON, Appellant, v. VANCE COUNTY BOARD OF EDUCATION, Appellee. Charlie J. SINGLETON, Appellee, v. VANCE COUNTY BOARD OF EDUCATION, Appellant.
    Nos. 73-2057, 73-2058.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 6, 1973.
    Decided May 8, 1974.
    Rehearing Denied July 5, 1974.

      James E. Lanning, Charlotte, N. C. (Adam Stein, James E. Ferguson II, Charlotte, N. C., Jack Greenberg, Norman J. Chachkin, New York City, Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., on brief) for appellant in No. 73-2057 and for appellee in No. 73-2058.
    George T. Blackburn, Henderson, N. C. (Robert G. Kittrell, Jr., Charles F. Blackburn, Bennett H. Perry, Jr., Perry, Kittrell, Blackburn & Blackburn, Henderson, N. C., on brief), for appellee in No. 73-2057 and for appellant in No. 73-2058.
    Before BRYAN, Senior Circuit Judge, and WINTER and FIELD, Circuit Judges.
   PER CURIAM:

Asserting a cause of action under 42 U.S.C. § 1983, Charlie J. Singleton instituted this suit against the Vance County Board of Education asking compensatory damages and injunctive relief for the allegedly unlawful termination of his employment as a school teacher. The district court entered judgment in favor of Singleton, awarding damages and attorney fees, and the Board has appealed. Challenging the computative basis of his damages Singleton has filed a cross-appeal.

While it has been raised by neither party, a serious jurisdictional question requires that we remand this case to the district court. The plaintiff asserted jurisdiction under only 28 U.S.C. § 1343(3) and (4), but since the Board of Education, the only named defendant, is not a “person” subject to suit under § 1983, jurisdiction cannot lie under those statutory sections. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973).

Accordingly, we remand the case to the district court with leave to the plaintiff to amend the jurisdictional allegations of his complaint should he be so advised and, in such event, for further consideration of the jurisdictional question by the court.

Remanded.

WINTER, Circuit Judge

(concurring and dissenting):

I agree that in these appeals we should notice that there are potentially difficult jurisdictional questions not recognized and raised by defendant and, understandably, not commented on by plaintiff; but I disagree that we should remand the case to the district court without first requiring the parties to file supplemental briefs in order to determine what parts, if any, of the jurisdictional question we can decide without further proceedings in the district court. Even if we remand the case to the district court in the first instance, or on the aspects of jurisdiction that we cannot decide after further briefing, I think we should identify the various aspects of the jurisdictional questions that need decision more particularly than by a general reference to City of Kenosha, infra, especially since the district court and counsel have failed to recognize them to date.

I.

Plaintiff, a black school teacher, sued the Vance County Board of Education, Vance County, North Carolina, in a purported class action, alleging that he had been wrongfully discharged because of his race when he properly disciplined a white student. He prayed reinstatement with back pay in an undisclosed amount, an injunction prohibiting further discriminatory treatment of him and members of his class, costs and counsel fees. Plaintiff alleged that his suit was brought under 42 U.S.C. § 1983, and his sole allegation of jurisdiction was that jurisdiction was founded on 28 U.S.C. § 1343(3) and (4). Defendant’s answer denied that plaintiff had been the subject of racial discrimination, and in that limited sense, denied jurisdiction, but the denial explicitly alleged that “28 U.S.C. Section 1343(3) and (4) authorizes action to be brought in the United States District Court, for the enforcement of civil rights yy

The district court found that plaintiff, individually, had been discriminatorily discharged, but it also found that defendant had not been engaged in racially discriminatory practices generally. It therefore denied relief for the class. The district court further found that plaintiff had obtained “comparable” other employment, albeit at a reduction in salary, and recited “as he has not pressed his claim for reinstatement, this relief will not be allowed.” Plaintiff was allowed damages of $4,508.00, later increased to $4,708.00 (to include expenses incurred in seeking other employment), and attorneys’ fees and expenses of $1,000.00, later increased to $2,281.73. The proof showed that he had been employed by defendant at a yearly salary of $9,825.35; he was paid for only the first month of the school year ($818.-78); he did not obtain other employment for approximately four months, and then he obtained a position for which he was paid $7,110.60 per year; and plaintiff held the substitute position for sixteen and one-half months, earning a total of $9,777.10, when he accepted comparable employment by another school board. The money judgment awarded plaintiff, excluding reimbursement for expenses incurred in seeking other employment, represented his loss of earnings only for the school year 1970-71, notwithstanding that he would have been continued in his position until his contract was not renewed for good cause, by a proper exercise of discretion or until he voluntarily left as, for example, he did when he concluded to accept permanent comparable employment with the other school board. See Johnson v. Branch, 364 F.2d 177 (4 Cir. 1966); Wall v. Stanley County Board of Education, 378 F.2d 275 (4 Cir. 1967). Had the judgment also included loss of earnings until plaintiff obtained comparable employment, plaintiff would have recovered an additional $4,546.85. Plaintiff’s recovery for loss of earnings and expenses ($4,708.00) and his recovery for counsel fees ($2,281.73), when added to the additional loss of earnings which he contends he should have recovered ($4,546.85), manifestly is more than $10,000.00, and would have satisfied any jurisdictional requirement for the amount in controversy. See Crescent Lumber & Shingle Company v. Rother-man, 218 F.2d 638 (5 Cir. 1955).

II.

Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), held that, in a suit for money damages brought under 42 U.S.C. § 1983, a municipal corporation — there, the City of Chicago — was not a “person” within the meaning of the statute and could not therefore be sued thereunder. 365 U.S. 191-192, 81 S.Ct. 473. It also held, however, that individuals who act for a municipal corporation are “persons” within the meaning of the Act and may be liable for money damages.

City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), held that a municipal corporation — there, the cities of Kenosha and Racine — was not a “person” within the meaning of § 1983 when the object of a suit under that statute was to obtain in-junctive relief. Kenosha suggested, however, that in light of the allegations in the two cases and the amounts in controversy, federal question jurisdiction might exist under 28 U.S.C. § 1331; and the case was remanded for consideration of that issue as well as the effect, if any, of the intervention by the Attorney General of Wisconsin as a party defendant in each case.

Monroe and Bruno are the authorities which raise the jurisdictional issues in this case, but as both cases recognize, jurisdiction is not necessarily defeated by their holdings. It may exist under other theories.

III.

The majority asserts, without citation of authority or supporting reasons, that the “Board of Education” is not a “person” within the meaning of § 1983. I consider this an open question. A municipal corporation is not a “person” within the meaning of § 1983 under both Monroe and Kenosha, but whether the Board of Education is a “municipal corporation” for this purpose is far from settled. Moreover, I am far from certain by what law it should be decided. Neither Monroe nor Kenosha defines what is a municipal corporation under § 1983, manifestly ■ because a definition was unnecessary since the cities of Chicago, Kenosha and Racine are classic examples of municipal corporations. If a definition must be formulated, there would be good reason to have a federal definition so that there would be uniformity of result throughout the United States. On the other hand, a state law definition might be an acceptable substitute, even though there is a strong likelihood that State A might define a municipal corporation differently from the definition formulated by State B, with the result that application of § 1983 would have one effect in State A and another in State B. If one turns to state law, the status of a North Carolina board of education is uncertain. Bridges v. City of Charlotte, 221 N.C. 472, 20 S.E.2d 825 (1942), holds that a board of education is not a municipality, at least for some purposes; but since Bridges, § 115-27, N.C.Gen.Stat. (Repl. Vol.1966), was enacted and that statute may have displaced the holding in Bridges. See Stanley v. Department of Conservation & Develop., 284 N.C. 15, 199 S.E.2d 641 (1973). These are all questions to be faced by the district court, if not by us.

IV.

Even if it is determined that Vance County Board of Education is a municipal corporation so that jurisdiction under § 1983 does not exist, the following other theories of how jurisdiction may be sustained should be considered:

Plaintiff’s proof of a violation of § 1983 constituted proof of a violation of the equal protection clause of the fourteenth amendment. As has been shown, I would conclude that the adverse financial consequences of plaintiff’s discriminatory discharge exceeded $10,000.00. Kenosha would therefore appear to be direct authority establishing jurisdiction in the district court under 28 U.S.C.A. § 1331 to grant injunctive relief, if it was otherwise merited.

Plaintiff’s right to be awarded money damages under 28 U.S.C. § 1331 jurisdiction is not as well established. But Bivens v. Six Unknown FBI Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), indicates that, where the remedy of money damages is necessary to give adequate protection to a constitutional guarantee, a court may and should award such remedy even in the absence of statutory authorization. See also Moore v. Koelzer, 457 F.2d 892 (3 Cir. 1972); Butler v. United States, 365 F.Supp. 1035 (D.Hawaii 1973). In Bivens, the remedy of money damages against federal law enforcement officials who conducted an unlawful search for violation of fourth amendment rights was held necessary for adequate protection of the rights which were violated. The principle would seem applicable here, especially because the district court concluded the injunctive relief should be withheld. My tentative view (subject to alteration if the point were briefed and argued or when the point is briefed and argued) is that plaintiff should be entitled to a back pay award arising directly under the fourteenth amendment, irrespective of § 1983, and the district court had jurisdiction under 28 U.S.C. § 1331 to render it. Again, I see no problem about the amount in controversy.

V.

Even if jurisdiction to render judgment against the Board of Education may not be sustained under 28 U.S.C. § 1331, plaintiff may still recover from the individuals comprising the Board of Education. Monroe v. Pape, supra. Of course, plaintiff did not seek to sue these persons individually in his complaint, but he may seek leave to amend his complaint to join them under Rule 15, F.R.Civ.P., and “leave shall be freely given when justice so requires.” Rule 15(a). There would seem to be little question that the amendment, if permitted, would relate back to the time of the original complaint so as to avoid any bar of limitations. Rule 15(c). I express no view, however, as to whether the case should be tried anew or whether the amendment would also relate back to permit the judgment rendered against the Board of Education to be extended to the individuals comprising the board. The answer to that question depends upon facts and considerations not presently before us.

VI.

In summary, I see no reason why, upon proper presentation by the parties, most of the legal questions that I have outlined should not or could not be decided by us without the necessity of further proceedings in the district court and the likelihood of an additional appeal. I would prefer to address them now. Since I am outvoted on my preference, I hope that my identification of the issues as I see them may serve to sharpen and simplify the subsequent proceedings.

ORDER

FIELD, Circuit Judge.

Upon consideration of the petition for rehearing and of the petition for rehearing in banc, as well as the motion of the plaintiff under 28 U.S.C. § 1653, to amend the jurisdictional allegations of his complaint;

Now, therefore, with the concurrence of Judge Bryan and in the absence of a request for a poll of the entire court, as provided by Appellate Rule 35(b),

It is adjudged and ordered that the petition for rehearing, as well as the motion to amend the complaint is denied. Judge Winter would grant the petition to rehear for the reasons stated in his dissent.

WINTER, Circuit Judge

(dissenting):

I think that there is merit in plaintiff’s petition for rehearing, and I would grant it.

As I have previously written, I agree with plaintiff’s contention that we ought to undertake to decide the question of jurisdiction, if it can be resolved, rather than to remand that question to the district court. There is a direction to do just that in 28 U.S.C. § 1653. That statute states that “[djefective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” The rationale of a statutory right to amend in an appellate court must be that the appellate court is directed to sustain jurisdiction of a case, especially one already tried and reduced to judgment, if that result may be properly achieved. We do not perform that duty by a bare remand.

Since my brothers insist on remand, I call to the attention of the district court still another possible basis of jurisdiction in addition to those about which I have previously written. It rests in 42 U.S.C. § 1981, which guarantees to every person “the same right ... to make and enforce contracts' as is enjoyed by white citizens . .” Jurisdiction to enforce § 1981 is vested in the district court by 28 U.S.C. § 1343(4), irrespective of the amount in controversy and irrespective of the teachings of Monroe and Kenosha with regard to the amenability of a municipal corporation to suit thereunder. See generally, Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); Note, Federal Power to Regulate Private Discrimination: The Revival of the Enforcement Clauses of the Reconstruction Era Amendments, 74 Col.L.Rev. 449 (1974).

      . Since our decisions in Johnson and Wall, § 115-142, Gen.Stat.N.C. (1973 Cum.Supp.) has been enacted. It completely revises the employer-employee relationship of teachers and school boards. “Career teachers” (those who have been employed by a school board for four years or within the state school system for five years) are given tenure and may be dismissed, demoted, or shifted to part-time employment only for good cause. See § 115-142 (c), (d) and (e).

      . In view of the fact that under North Carolina law plaintiff was entitled to be reappointed from year to year unless he declined reappointment or reappointment was withheld, by a non-discriminatory exercise of discretion or for good cause, I have no hesitancy in concluding that the district court was in error in limiting plaintiff’s recovery for loss of earnings solely to the year in which he was discharged. Subject only to the duty to mitigate loss of earnings, plaintiff was entitled to recovery for the entire period from his dato of discharge until he obtained comparable employment or reinstatement was ordered.


author: MOORE, Senior Circuit Judge:

text:
    The WESTERN CASUALTY AND SURETY COMPANY, Appellee, v. GROLIER INCORPORATED and the Richards Company, Inc., Appellants.
    No. 73-1429.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1973.
    Decided July 23, 1974.

      Robert D. Mishne, Sioux City, Iowa, for appellants.
    Philip Willson, Council Bluffs, Iowa, for appellee.
    Before MEHAFFY, Chief Judge, MOORE, and WEBSTER, Circuit Judges.

         LEONARD P. MOORE, Senior Circuit Judge of the United States Court of Appeals for the Second Circuit, sitting by designation.

   MOORE, Senior Circuit Judge:

This is an appeal by Grolier Incorporated and The Richards Company, Inc. (referred to collectively as “Grolier”), defendants in the court below, from judgments in the amount of $91,770.82 awarded against them and in favor of The Western Casualty and Surety Company (hereinafter “Western Casualty”). The theory of recovery was that Grolier owed Western Casualty a duty to indemnify it for a loss incurred under an insurance policy issued by it, insuring Arthur S. Bronston (hereinafter “Arthur”) against liability arising out of an accident resulting from the ownership and operation of an automobile owned by Arthur. Because no such duty to indemnify can be derived from the facts of this case, we reverse the judgment of the District Court.

Grolier sells encyclopedias and other publications. Mitchell Bronston (hereinafter “Mitchell”) was employed by Gro-lier as a field manager or supervisor over certain salesmen of Grolier’s products. On June 25, 1968, Mitchell, while driving a car owned by and driven with the consent of Arthur (stated by the court, in an- order on a motion to dismiss the complaint, to be the father of Mitchell), was involved in a one-car accident in Cherokee County, Iowa, injuring Peter E. Verstegen, a passenger and fellow Grolier employee.

At the time of the accident, Mitchell and Peter Verstegen were acting within the scope of their employment. Grolier, a self-insurer under Iowa’s Workmen’s Compensation Act, paid Verstegen $26,986.61 as a result of his injuries in accordance with the Act. Despite the fact that he received Workmen’s Compensation payments from his employers, Verstegen was entitled to sue any third party who might under the law be liable to him. Verstegen sued both Arthur and Mitchell.

Mitchell’s negligence was conceded to be a proximate cause of the accident, and Arthur as the owner was liable to Verstegen under the Iowa Owner-Liability Statute. Iowa Code § 321.493 (1962); In settlement of this suit, Western Casualty, as insurer of Arthur, paid $90,000 to Verstegen and obtained his release of both Arthur and Mitchell. This settlement has been stipulated to be fair and reasonable. Western Casualty also paid court costs in the amount of $114.84 and incurred attorneys’ fees in the amount of $1,520.00 and expenses of $135.98. Western Casualty then brought the present action, as subrogee of Arthur, seeking indemnity from Gro-lier for the sums it expended in settling Verstegen’s suit and for costs, attorneys’ fees and expenses, a total of $91,770.82.

Grolier filed a third-party action against Mitchell in this action and was awarded judgment against him in a similar amount.

Western Casualty, as subrogee of Arthur, having paid $91,770.82 to Verste-gen then brought this action against Grolier. The complaint alleged an agreement between Grolier and Mitchell under which Mitchell was to furnish an automobile to transport Grolier’s employees to areas selected by Grolier for the sale of its products; that Arthur agreed to furnish the car for this purpose; that Verstegen sued Arthur and Mitchell for his injuries sustained in the accident; that Mitchell’s negligence was the proximate cause of the accident, which negligence was imputable to Gro-lier; that Arthur was liable to Verste-gen by reason of the Iowa Consent Statute § 321.493 Iowa Code (1962); that Western Casualty paid $91,770.82 in settlement, which settlement was fair and reasonable; and that Western Casualty made a demand for indemnity from Gro-lier which was refused.

Grolier moved to dismiss the complaint on the ground that it failed to state a cause of action against it. The District Court denied the motion on the ground that Grolier’s liability is that of a master under the doctrine of respon-deat superior; that Grolier’s negligence was primary, the car owner’s negligence secondary and that the owner was not in pari delicto with Grolier.

When the case came to trial it was submitted largely upon the pre-trial order and facts stipulated therein.

The District Court found as an underlying fact that Arthur was liable to Ver-stegen under the Iowa Consent Statute, § 321.493. However, the Court concluded that Arthur (Western Casualty as Arthur’s subrogee) was entitled to indemnity from Grolier because Grolier was Mitchell’s employer; that Mitchell was driving a car owned by and with the consent of Arthur; that an accident occurred in which Verstegen, a fellow employee, was injured; that Mitchell and Verstegen were acting within the scope of their employment; that Mitchell’s negligence was the proximate cause of the accident; that Grolier was insured under the Iowa Workmen’s Compensation Act and paid Verstegen $26,986.61 thereunder; that Verstegen brought a suit against Arthur and Mitchell; that Arthur had an automobile liability insurance policy issued by Western Casualty ; that Western Casualty settled the suit for a total of $91,770.82, which sum was fair and reasonable; that Western Casualty had tendered the defense to Grolier which was refused; and that Western Casualty had demanded indemnity from Grolier, which likewise was refused.

Appellants take issue with the conclusions reached below. They argue to this Court that Iowa’s Workmen’s Compensation Statute limits the liability of the employer. While an employee who is covered by the Statute may recover for his injuries according to the schedule provided, he may not independently initiate a cause of action against his employer. Likewise, according to appellants, an employee cannot indirectly recover additional monies from his employer by suing a responsible third party who can, in turn, claim indemnity from the employer.

As authority for this proposition, appellants rely on Great Northern Railway Co. v. Bartlett & Co., 298 F.2d 90 (8th Cir. 1962). Great Northern was in the business of renting railroad cars to commercial users. Bartlett was one of its lessees. While loading a car leased to Bartlett by Great Northern, one of Bartlett’s employees was injured. He received a Workmen’s Compensation award from his employer and then sued Great Northern as a negligent third party because he claimed that the car supplied by Great Northern had been equipped with defective handbrakes. The employee prevailed in his suit. Great Northern then sought contribution or indemnity from Bartlett on the ground that Bartlett’s failure to inspect the car before putting it to use made it, at the very least, a joint tortfeasor. Both contribution and indemnity were denied. This Court held that it was necessary for the party seeking indemnity to show an independent duty of indemnity running to it from the employer before the ultimate liability could be shifted and that, under the circumstances, no such duty could be found.

The District Court largely ignored the implications of Great Northern and instead based its memorandum decision on the authority it derived from seven different opinions which it cites but does not discuss.

In support of its judgment that Grolier owed Arthur indemnification for his settlement with Verstegen, the court first cites Rozmajzl v. Northland Greyhound Lines, 242 Iowa 1135, 49 N.W.2d 501 (1951). The facts in that case disclose that when one of Greyhound’s buses suffered mechanical difficulty and was unable to make a scheduled trip for which tickets had already been sold, Greyhound leased a bus and driver from Sioux Lines Inc. Due to the negligence of the driver, an accident occurred and one of the passengers sued Greyhound which, as the carrier of record, was responsible. Greyhound conceded liability but sought indemnification from Sioux Lines. The Iowa Supreme Court found that Greyhound was indemnified by Sioux Lines, the owner of the bus.

Millard v. Baker, 76 S.D. 529, 81 N.W.2d 892 (1957), a case similar to Rozmajzl in many ways, was also relied upon by the District Court. In that case defendant Baker was in the business of leasing commercial vehicles and drivers for those vehicles. Baker leased a truck and driver to Wurnig. Through the negligence of the driver, plaintiff Millard was injured. The Supreme Court of South Dakota held that Baker’s liability, premised on an owner-liability statute, could be shifted completely to Wurnig, the lessee.

Although both Rozmajzl and Millard involved the bailment of motor vehicles, neither was presented within a framework which compelled the need to cope ■ with the policies of Workmen’s Compensation legislation. Both courts relied on the finding that one of the defendants was primarily liable to the injured plaintiff but, as Great Northern has established, relative negligence is inoperative as a basis for indemnity where the policies of Workmen’s Compensation must be taken into account and an independent duty of indemnification must be shown.

In a slightly different vein, the court' below relied on Iowa Power & Light Company v. Abild Construction Company, 259 Iowa 314, 144 N.W.2d 303 1966). Abild had been engaged by the Bátes-Couch Terminal Elevator Company to construct a grain storage building. While working on the project, Visser, an Abild employee, came into contact with an Iowa Power & Light Company (Ipaleo) power line. He was severely injured. Visser collected unemployment compensation from his employer and then prevailed against Ipaleo in an independent suit for negligence. The court found a basis for Ipalco’s subsequent claim of indemnity from Abild. Abild had failed, as per its express agreement with Ipaleo, to inform Ipaleo that it was working near the latter’s power lines so that proper steps could be taken to ensure against an electrical mishap. Likewise, the District Court cites Peters v. Lyons, 168 N.W.2d 759 (Iowa 1969). Mrs. Lyons, the defendant, owned a rather large dog for which she had bought a leash from the S.S. Kresge Company. The salesman assured her, at the time of the sale, that the leash would be equal to its intended task. Unfortunately, the leash proved defective. The dog broke away from its restraint and attacked plaintiff Lyons, causing him serious injury. The Supreme Court of Iowa held that the salesman’s assurances constituted a warranty and found a duty of indemnity based upon breach of that warranty.

In both Abild and Peters indemnity was predicated on an independent duty and in that sense they are relevant to the case at bar. However, the duty in each case was derived from the express language of the agreements reached between the parties. There is no evidence, not even an allegation, of an analogous express agreement between Grolier and Arthur, and thus the authority of Abild and Peters cannot be stretched to cover the facts of the instant case.

The District Court also invoked the holding of the Supreme Court of Iowa in Blackford v. Sioux City Dressed Pork, Inc., 254 Iowa 845, 118 N.W.2d 559 (1962). In that case Sioux City Dressed Pork made a contract with one Langley whereby Langley agreed to clean Sioux City’s slaughtering and refrigerating equipment so that Sioux City might be in compliance with federal sanitation regulations. One of Langley’s employees began to clean Sioux City’s machinery while it was still in operation. The employee was injured as a result of his indiscretion. He received Workmen’s Compensation benefits from Langley and then sued Sioux City alleging that it had failed to instruct as to proper cleaning procedures. Sioux City was found negligent and sought indemnity from Langley. Langley was required to indemnify Sioux City because the court found that Langley owed it an implied duty to perform all work in a safe manner.

While it is true that Langley’s liability was based on an implied independent duty, there is no evidence in the record to show that Grolier owed Arthur any similar duty to perform its work in a safe manner. Unlike the Sioux City Dressed Pork Company, Arthur did not hire Grolier. Grolier owed Arthur only the general duty that every member of society owes to every other member — the duty not to harm him through tortious acts. Such a general duty does not support a right of indemnity in a case where the would-be indemnitor is an “employer” covered by the Workmen’s Compensation law.

Of all the cases cited by the District Court, the only two which contain color-able authority for the case at bar are Hertz Corporation v. Ralph M. Parsons Co., 419 F.2d 783 (5th Cir. 1969), and Lunderberg v. Bierman, 241 Minn. 349, 63 N.W.2d 355 (1954).

In Hertz, Nugent, an employee of the Parsons Company, while on company business, rented a car from Hertz using a credit card supplied by his employer who later paid the rental charge. While driving the rented car, Nugent negligently caused an accident. As the owner of the automobile, Hertz was found liable. Hertz then sued Parsons for indemnification and won.

In Lunderberg, the plaintiff had taken her automobile to a garage for its 2,000 mile “checkup.” After it had been serviced, two of the garage employees took the car out for a road test. During the course of this test, the employee who was driving negligently caused an accident which injured the employee who was riding as a passenger. The passenger-employee received Workmen’s Compensation from the garage which employed him and then sued Mrs. Lunder-berg under a Minnesota statute (much like the one currently in force in Iowa) which made the owner of an automobile liable for any damage caused by it as long as the automobile was being driven with the owner’s consent. When Mrs. Lunderberg was found liable she sued the garage for indemnity. The Supreme Court of Minnesota held that Mrs. Lun-derberg had a right of indemnity from the garage because, as the bailee of her property, it was liable not only for damages resulting to the bailor’s property but also for damages resulting to the bailor due to the negligence of the bailee. Lunderberg, supra, 63 N.W.2d at 360.

In both Lunderberg and Hertz, indemnity was implied from an independent duty running from the bailee of the motor vehicle to the lessee-owner. Fundamental to a resolution of liability in the present case is a factual determination of the relationship, if any, between Gro-lier and Arthur. If Grolier leased the vehicle from Arthur, indemnity might well be warranted. The facts in this ease, however, simply do not support the existence of such a relationship. Except for an admission in the pleadings that Arthur agreed to furnish Mitchell with a ear for use in the scope of his employment with Grolier and a denial by Gro-lier that it required Mitchell as a condition of his employment to furnish transportation for Grolier’s employees, there is nothing in the record to indicate that Grolier had any knowledge that Mitchell had acquired the car from Arthur, that Grolier had authorized any such acquisition or that Mitchell’s position gave him either implied or apparent authority to obtain a car from his father. Grolier has no independent duty to Arthur merely because it might have been a beneficiary of some agreement between the father and son.

In order for Arthur to have a right of indemnity against Grolier, the record must disclose an independent duty of indemnification.

Because appellee has been unable to point to any relationship between Gro-lier and Arthur from which a duty to indemnify might arise and because this court is unable to discern any such relationship from the record in this case, we find that Grolier had no duty to indemnify Arthur. We therefore reverse the recovery awarded by the District Court to the Western Casualty and Surety Company, and dismiss the complaint with costs.

      . 321.493 Liability for damages. In all cases where damage is done by any motor vehicle by reason of negligence of the driver, and driven with the consent of the owner, the owner of the motor vehicle shall be liable for such damage.

      . Section 85.20 of the Act provides that:
      The rights and remedies provided in this chapter for an employee on account of injury shall be exclusive of all other rights and remedies of such employee, his personal or legal representatives, dependents, or next of kin, at common law or otherwise, on account of such injury.