author: BARRETT, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. 25.02 ACRES OF LAND, MORE OR LESS, situate IN DOUGLAS COUNTY, STATE OF COLORADO, and Chez Ami Lounge, Inc., a Colorado corporation, et al., and unknown owners, Defendants-Appellants.
    No. 73-1702.
    United States Court of Appeals, Tenth Circuit.
    April 29, 1974.

      Peter R. Steenland, Dept, of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., Washington, D. C., James L. Treece, U. S. Atty., Denver, Colo., Edmund B. Clark, Dept, of Justice, Washington, D. C., on the brief), for appellee.
    Bruce D. Pringle, Denver, Colo., for appellants.
    Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.
   BARRETT, Circuit Judge.

John K. Tomlin and Cline E. Worth-man appeal from a judgment entered April 19, 1973, upon a jury verdict awarding them $13,500.00 representing the value of some 1.91 acres of unimproved land (Tract 209) situate in Douglas County, Colorado, in a condemnation suit brought by the United States.

The sole issue presented is whether the Trial Court erred in quashing that portion of appellants’ subpoena duces tecum which sought from the Government’s expert appraisal witness, Fermor T. Black, the production of all appraisal reports which he had prepared for the use of other private owners of property in the vicinity of the subject property between the years 1964 and 1969.

Black testified that the highest and best use of Tract 209 on the date of taking was for a service type business such as a greenhouse or construction yard. He testified to some nine sales of comparable properties which he relied on in support of his opinion that the fair market value of the tract was, at date of taking, $10,500.00. Appellants’ expert appraisal witness, Carl Gunther, testified that the highest and best use of Tract 209 at the date of taking was for business purposes such as a gas station or restaurant site. He testified concerning four sales of comparable properties which he relied on in rendering his opinion that the fair market value of the tract was, at date of taking, $37,000.00.

Appellants contend that the Trial Court erred in quashing the aforementioned portion of the subpoena duces tecum in that such discovery is specifically contemplated under Rules 26 and 45(b), Fed.R.Civ.P., 28 U.S.C.A., and can only be quashed or modified by the court if it is “unreasonable and oppressive” and, further, that the burden is upon the party moving to quash, citing Goodman v. United States, 369 F.2d 166 (9th Cir. 1966); Westinghouse Electric Corporation v. City of Burlington, Vermont, 122 U.S.App.D.C. 65, 351 F.2d 762 (1965), and 9 Wright & Miller, Federal Practice and Procedure: Civil § 2457 (1973 P.P.)

The appellants allege, specifically, that the Court erred in quashing that portion of the subpoena directing Black to bring to court all appraisals he had made for private property owners between the above dates “in the area bordered on the north by Coal Mine Road, on the east by U.S. 85, on the west by Platte Canyon road and on the south by Titan Road.” The Government moved to quash the subpoena or for a protective order. The Court ordered that defendants-appellants be provided with the appraisal reports Black prepared for the use of the Government relating to lands in the Chat-field Dam Project. That portion of the subpoena was apparently complied with. The Court denied production of the appraisal reports prepared by Black for use of private property owners in the area of the lands subject to condemnation in that they involved the “question of propriety.” The appellants argue that these reports were essential to possible impeachment of Black. Black had made about 10 appraisals of property in the area for the Government and some 15 to 20 appraisals for private parties.

The Government responds that the subpoena was properly quashed in that it is clearly in conflict with Rule 34, Fed.R.Civ.P., 28 U.S.C.A., which provides, inter alia, that upon motion a party may obtain an order requiring any party to produce and permit inspection and copying of any designated documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of discovery permitted by Rule 26(b), Fed.R. Civ.P., 28 U.S.C.A. The Government argues that the appraisal reports prepared by Black for other landowners are the property of those landowners who, of course, are not parties to the subject litigation and that the proper procedure which the appellants should have pursued to test their right to obtain the appraisals is by an independent action against the non-party private landowners, explicit in Rule 34(c), supra. It provides that the rule does not preclude an independent action against a person not a party for production of documents, etc.

I.

The major factors to be considered in determining the market value of real estate in condemnation proceedings are: (a) a view of the premises and their surroundings; (b) a description of the physical characteristics of the property and its situation in relation to points of importance in the neighborhood; (c) the price at which the land was bought, if sufficiently recent to throw light on present value; (d) the price at which similar neighboring land has sold at about the time of the taking; (e) the opinion of competent-experts; (f) a consideration of the uses for which the land is adapted and for which it is available; (g) the cost of the improvements if they are such as to increase the value of the land; and (h) the net income from the land, if the property is devoted to one of the uses to which it could be most advantageously and profitably applied. 4 Nichols on Eminent Domain, § 12.31 [2].

We have consistently held that in determining the fair market value of real property in condemnation, i. e., that which an owner willing, but not compelled to sell, will take, and what a buyer willing, but not compelled to buy, will give for such property [Onego Corporation v. United States, 295 F.2d 461 (10th Cir. 1961); United States v. Silver Queen Mining Company, 285 F.2d 506 (10th Cir. 1960)], that the best evidence is found in sales of comparable property within a reasonable time before the taking. United States v. 45,131.44 Acres of Land, More or Less, In El Paso, Fremont and Pueblo Counties, State of Colorado, 483 F.2d 569 (10th Cir. 1973); United States v. 1,053.27 Acres of Land in Osage County, Kansas, 446 F.2d 1234 (10th Cir. 1971); United States v. Sowards, 370 F.2d 87 (10th Cir. 1966); United States v. Featherston, 325 F.2d 539 (10th Cir. 1963). We have also held that while the best evidence of market value is found in sales of comparable property, the determination is not limited to that consideration and other substantial facts and circumstances may have probative value meeting the general criteria cited in 4 Nichols on Eminent Domain, § 12.31 [2], supra. See United States v. 45,131.44 Acres of Land, supra, United States v. Sowards, supra, Wilson v. United States, 350 F.2d 901 (10th Cir. 1965); United States v. Featherston, supra.

II.

The burden rests upon the owner to establish by competent evidence his right to substantial compensation. United States v. Sowards, supra; Wilson v. United States, supra; 5 Nichols on Eminent Domain, § 18.5.

In United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943), the Supreme Court said:

Where, for any reason, property has no market resort must be had to other data to ascertain its value; and, even in the ordinary case, assessment of market value involves the use of assumptions, which make it unlikely that the appraisal will reflect true value with nicety. It is usually said that market value is what a willing buyer would pay in cash to a willing seller. Where the property taken, and that in its vicinity, has not in fact been sold within recent times, or in significant amounts, the application of this concept involves, at best, a guess by informed persons.
317 U.S. at 374-375, 63 S.Ct. at 280.

In some jurisdictions where evidence of comparable sales is considered the best evidence in determining the value of the land condemned, still the rule is that evidence of the sale of a parcel of land subject to condemnation to the proposed condemnor or to another potential condemnor may not be admitted in evidence. Transwestern Pipeline Company v. O’Brien, 418 F.2d 15 (5th Cir. 1969); Slattery Company v. United States, 231 F.2d 37 (5th Cir. 1956); United States v. Foster, 131 F.2d 3 (8th Cir. 1942), cert. denied 318 U.S. 767, 63 S.Ct. 760, 87 L.Ed. 1138 (1942); United States ex rel. Tennessee Valley Authority v. Reynolds, 115 F.2d 294 (5th Cir. 1940); 85 A.L.R.2d 110 § 10. We have frowned upon the admission of such evidence and have advised that great caution must be exercised in those instances that such evidence is admitted. 6816.5 Acres of Land, More or Less, In Rio Arriba County, State of New Mexico v. United States, 411 F.2d 834 (10th Cir. 1969). We are cognizant, however, of those decisions which hold that the mere possibility of prejudice cannot be determined through use of a general exclusionary rule prior to trial. United States v. 691.81 Acres of Land, More or Less, Situate in Clark County, State of Ohio, 443 F.2d 461 (6th Cir. 1971); United States v. 63.04, Acres of Land, Lido Beach, Town of Hempstead, County of Nassau, State of New York, 245 F.2d 140 (2nd Cir. 1957).

III.

Courts have historically, in appropriate circumstances, protected materials that are primarily of an impeaching character or which involve the interests of privacy to the extent that an extra measure of protection is required. Such cases simply illustrate the many situations not capable of governance by precise rule, in which courts must exercise judgment. The Trial Court recognized the applicability of these principles in ruling to quash by insisting that “collateral issues” not become involved in the case and in observing that the non-party private landowners for whom Black prepared appraisals have a “proprietary” interest in them. Appellants recognize the risk of prejudice to these private landowners, but attempt to avoid the issue by contending that if any prejudice existed it came about by reason of the fact that Mr. Black chose to create a potential conflict of interest by appraising for both the condemnor and the condem-nees on the same project.

IV.

The Trial Court is allowed wide discretion in passing on matters relating to expert testimony in condemnation cases. Montana Railway Company v. Warren, 137 U.S. 348, 11 S.Ct. 96, 34 L.Ed. 681 (1890); 6816.5 Acres of Land v. United States, supra; United States v. Featherston, supra. And while the scope of cross-examination of experts who have testified to value in land condemnation cases is very broad, the federal rule is that cross-examination must be limited to the subject matter of the direct examination, which in turn should be confined to the value of the land taken. Dicker v. United States, 122 U.S.App.D.C. 158, 352 F.2d 455 (1965), cert. denied 383 U.S. 936, 86 S.Ct. 1067, 15 L.Ed.2d 853 (1966); United States v. Johnson, 285 F.2d 35 (9th Cir. 1960); Wegman v. United States, 272 F.2d 31 (8th Cir. 1959); Union Electric Light & Power Co. v. Snyder Estate Co., 65 F.2d 297 (8th Cir. 1933). The scope and extent of cross-examination rests in the sound discretion of the trial court and is not subject to exception unless wholly arbitrary, unreasonable and abusive, and the examination need not be extended to permit interrogation about collateral, immaterial or irrelevant matters. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); 6816.5 Acres of Land v. United States, supra; United States v. Certain Parcels of Land in City of Philadelphia, Pa., 145 F.2d 374, 159 A.L.R. 1 (3rd Cir. 1944); Maryland Casualty Co. v. Dunlap, 68 F.2d 289 (1st Cir. 1933); Thus, in 6816.5 Acres of Land, supra, we noted that while there is some authority for allowing the cross-examination of the expert as to his appraisal of neighboring property, the chances of confusing the jury and needlessly lengthening the trial are such that the Court is allowed wide latitude in controlling the extent of the inquiry. Examination with reference to collateral matters rests largely within the discretion of the trial court and its ruling will not be disputed in the absence of a clear abuse of discretion. Grain Dealers Mutual Insurance Company v. Farmers Union Cooperative Elevator and Shipping Association, Kirwin, Kansas, 377 F.2d 672 (10th Cir. 1967).

We held in Norman v. Young, 422 F.2d 470 (10th Cir. 1970), that a party moving for an order requiring production of documents from another party under Rule 34, supra, is charged with establishing that the desired documents, etc., designated in the motion for production are in the possession, custody or control of the party to whom the motion is directed, and that a “party may not be compelled to produce papers or things which are not in his possession, custody, or control, or the possession, control, or existence of which the party denies under oath.” 422 F.2d at 472, 473. Rule 34, supra, was revised effective July 1, 1970. The notes of the Advisory Committee on Rules state that Rule 34, as revised, continues to apply only to parties, observing that while the ideal solution is to provide for discovery against persons not parties in Rule 34, both the jurisdictional and procedural problems are very complex and, for the present, the rule (Subdivision c) makes it clear that an independent action for discovery against persons not parties is not precluded.

The Trial Court relied in part on Rule 34, supra, when the Government’s motion to quash was denied insofar as it related to Black’s appraisals of other properties within the project area made for and at the request of the Government. Such appraisal reports fit within the literal disclosure requirements of Rule 34, supra.

We hold that there is no merit in the appellants’ reliance on Rules 26 and 45(b), Fed.R.Civ.P., 28 U.S.C.A., in support of their contention that the Court erred in quashing that portion of the subpoena directing Black to produce those appraisals he undertook prior to trial for private parties who own land in the project area vicinity.

Appellants direct us to the Advisory Committee Notes to the 1970 Amendment to Rule 26 which express a purposeful rearrangement of the discovery rules in such a manner as to establish Rule 26 as one governing discovery in general. They failed to state, however, that the 1970 Amendments transferred from Rule 30(b) to Rule 26(c) the provisos conferring on the trial courts broad powers to regulate or prevent discovery even though the materials sought are unthin the scope of Rule 26(b), and that these powers have always been free ly exercised. Appellants attempt to further buttress their contention of error by reference to Rule 45(b), Fed.R.Civ.P., 28 U.S.C.A., which provides that the court may quash or modify a subpoena duces tecum only if it is “unreasonable and oppressive”, and that the burden of proof is upon the party seeking to quash.

We hold, however, that the rule of reason favors the discretion exercised by the trial court in view of the fact that disclosure of appraisal values obtained by private owners whose property has not yet been condemned could work to the prejudice of substantial rights of those private owners. Courts have recognized that forced sales — in condemnation proceedings — often involve compulsion, coercion or compromise and that a condemning party might be willing to give more than the property is worth, and the owner might be willing to take less than it is worth rather than undergo a lawsuit. Should parties owning lands in the project area who obtained independent appraisal reports from Black reject the Government’s settlement offer and opt for trial, disclosure in the instant case could be prejudicial to their rights.

By analogy, we note that just as a mere offer to buy or sell property is not a measure of the market value of a similar property [United States v. Regents of New Mexico School of Mines, 185 F.2d 389 (10th Cir. 1950)], so, too, a written contract for the sale of adjacent land has been held inadmissible, if the sale did not take place, Crystal Lake Park Dist. v. Consumers’ Co., 313 Ill. 395, 145 N.E. 215 (1924); Ottawa, O.C. & C.G.R. Co. v. Adolph, 41 Kan. 600, 21 P. 643 (1889).

We hold that the Trial Court did not abuse its discretion in denying appellants discovery of the appraisals rendered by Black on behalf of private parties owning land within the vicinity of the project area who are not parties to the instant litigation.

Affirmed.


source: Caselaw Access Project

author: BOREMAN, Senior Circuit Judge:

license: Public Domain

text:
    Ruth M. CULBERTSON, Executrix of the will of William M. Culbertson, Jr., Deceased, last surviving partner of the partnership of J. H. Franks and William M. Culbertson, Jr., doing business as Whitewood Smokeless Coal Company, Appellee, v. JNO. McCALL COAL COMPANY, INC., a Maryland corporation, et al., Appellants. Ruth M. CULBERTSON, Executrix of the will of William M. Culbertson, Jr., Deceased, last surviving partner of the partnership of J. H. Franks, and William M. Culbertson, Jr., doing business as Whitewood Smokeless Coal Company, Appellant, v. JNO. McCALL COAL COMPANY, INC., a Maryland corporation, et al., Appellees.
    Nos. 73-1400, 73-1401.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 5, 1973.
    Decided May 1, 1974.

      John S. McDaniel, Jr., Baltimore, Md. (Cable, McDaniel, Bowie & Bond, Baltimore, Md., Leroy Katz, Katz, Katz & Kantor, Bluefield, W. Va., Carl C. Gillespie, Gillespie & Gillespie, Tazewell, Va., on brief), for McCall Coal Co., Inc., et al.
    Joseph M. Sanders, Bluefield, W. Va. (Sanders & Blue, Bluefield, W. Va., on brief), for Ruth M. Culbertson et al.
    Before BOREMAN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit Judges.
   BOREMAN, Senior Circuit Judge:

The facts of this diversity suit are voluminous and complex. They are set forth in great detail in the district court’s opinion reported at 275 F.Supp. 662 (S.D.W.Va.1967), and we think it unnecessary to fully repeat them here. A brief statement thereof should suffice.

William M. Culbertson, Jr. (plaintiff below), and J. H. Franks, doing business as Whitewood Smokeless Coal Company (Whitewood), had acquired by lease certain mining rights to coal in Buchanan County, Virginia. As part of the leasing agreement one C. A. Clyborne was to be the exclusive sales agent for the sale of the mined coal on a commission basis. Clyborne immediately assigned his rights as sales agent to Jno. McCall Coal Company, Inc. (McCall), who in turn made arrangements with Clyborne, Inc., to act as sales agent in return for a share of the commissions. From July 1, 1948, to December 31, 1955, during the term of the lease agreement, the accounting entries in Whitewood’s books were consistent ; they reflected the' receipt of the sales price less the established commission supposedly taken by McCall. This would indicate that Whitewood dealt with and viewed McCall solely as a sales • agent. McCall’s accounting procedures, however, were less definitive. Some entries would indicate that McCall treated itself as a wholesaler, being required to pay a reported purchase price to Whitewood and free to make profits on any higher resale price. Other entries indicate that McCall considered itself a sales agent for Whitewood, entitled only to a commission. In 1963 evidence surfaced which caused Culbertson to file this action seeking an accounting of the proceeds from the sale of Whitewood’s coal. Clyborne, McCall, and Clyborne, Inc. (defendants below), claim that the sales agency relationship was terminated by mutual agreement in February of 1949, and as wholesalers after that date they were not required to account for any money they received from the resale of Whitewood’s coal. Culbertson contends that the sales agency relationship was never terminated and that defendants were required to remit the full sales price less the established commission.

In its findings of fact the district court found: the sales agency agreement had never been terminated; Culbertson believed, and with full justification, that McCall’s capacity was that of a sales agent and not a wholesaler; during the entire period Culbertson had no reason to believe or suspect that McCall was not accounting to Whitewood for the full proceeds of sales less the agreed commission; McCall had withheld sales proceeds in violation of the agreement; and McCall misrepresented and coneéaled from Culbertson the true prices obtained from the sales of the coal. The court ruled as a matter of law that Culbertson’s action was not barred by the applicable West Virginia statute of limitations and held that McCall’s misrepresentations and concealment so obstructed Culbertson’s right of action, within the meaning and intent of West Virginia Code ch. 55, art. 2, § 17, that the running of the statute of limitations was tolled. McCall was ordered to produce its books and records for examination and audit. A Special Master was appointed to determine the appropriate award of damages and he concluded that Culbertson was entitled to an award of a sum in excess of $170,000. The district court subsequently adopted the Master’s report in all respects and refused Culbertson’s request for attorney’s fees and accounting costs.

In their appeal the defendants-appellants claim the district court erred in finding that the sales agency agreement had not been terminated in February of 1949 and in finding that there were misrepresentations and concealment by McCall which obstructed Culbertson’s prosecution of his claim. In both instances they challenge the correctness of the findings of fact.

In reviewing a district court’s findings of fact this court must follow Rule 52(a) of the Federal Rules of Civil Procedure.

“Findings of fact shall not be set aside unless clearly erroneous. . . .”

Findings of fact are presumptively correct and cannot be set aside unless clearly erroneous. Crowe v. Cherokee Wonderland, Inc., 379 F.2d 51 (4 Cir. 1967).

“A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” U. S. v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

Neither our review of the record nor any point raised on appeal leaves us with a definite and firm conviction that a mistake was committed by the district court in its factual findings and we cannot say that they are clearly erroneous. We therefore find no merit in this’ aspect of the appeal.

Culbertson has cross-appealed, alleging that the district court erred in disallowing the claim against McCall for recovery of attorney’s fees and accounting costs. The district court concluded that had this case been tried in state court no litigation expenses could have been recovered and that the state rule with respect to such expenses should be followed in diversity cases. We previously considered this question in Sperry Rand Corp. v. A-T-O, Inc., 447 F.2d 1387 (4 Cir. 1971), and concluded that in diversity cases state law should ordinarily be followed. In that case we set aside an award of attorney’s fees by the district court because under Virginia law, which law was there held to be controlling of substantive issues, no award of such fees was authorized.

The West Virginia rule is that “[e]xcept in rare instances the power of a court to require one party to contribute to the fees of counsel of another party must be confined to cases where the plaintiff, suing in behalf of himself and others of the same class, discovers or creates a fund which enures to the common benefit of all. . . . ” Roach v. Wallins Creek Collieries Co., 111 W. Va. 1, 8, 160 S.E. 860, 863 (1931); see also Security National Bank & Trust Co. v. Willim, W.Va., 180 S.E.2d 46 (1971). There is no indication that an action based upon fraud would constitute a “rare instance” which under West Virginia law would justify the awarding of attorney’s fees. “[I]n an ordinary diversity case where the state law does not run counter to a valid federal statute or rule of court, and usually it will not, state law denying the right to attorney’s fees or giving a right thereto, which reflects a substantial policy of the state, should be followed.” 6 J. Moore, Federal Practice |f 54.77 [2], at 1712 (1974) (footnotes omitted); see also Kellems v. California CIO Council, 6 F.R.D. 358 (N.D.Cal.1946). The facts of this case do not justify departure from that principle. We conclude that the district court committed no error in following West Virginia law in denying recovery of attorney’s fees. See Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).

Accordingly, we affirm the judgment entered below. Each side shall bear its own costs.

Affirmed.

      . West Virginia Code ch. 55, art. 2, § 17 provides in part:
      Where any such right as is mentioned in this article shall accrue against a person . , if such person shall, by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right, or if such right has been or shall be hereafter obstructed by war, insurrection or rebellion, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted. [Elnphasis supplied.]

      . William M. Culbertson, Jr., died while this case was pending on appeal. Ruth M. Culbertson, executrix of the will of William M. Culbertson, Jr., was substituted as a party to this appeal.

      . Our decision in Sperry Rand Oorp. v. A-T-O, Inc., 447 F.2d 1387 (4 Cir. 1971), was bottomed upon Virginia law as stated in McCormick v. Elsea, 107 Va. 472, 59 S.E. 411 (1907). In Roach v. Wallins Creek Collieries Co., 111 W.Va. 1, 160 S.E. 860 (1931), the West Virginia Supreme Court of Appeals adopted the Virginia rule with respect to awarding attorney’s fees as set forth in McCormick v. Elsea, supra. Our decision in Sperry Rand is therefore persuasive authority for our decision in the instant case.

      . The litigation expenses sought by Culbertson include both attorney’s fees and accounting costs. As the district court noted, whether state law [Allen v. Colonial Oil Co., 92 W.Va. 689, 115 S.E. 842 (1923) ] or federal law [6 J. Moore, Federal Practice If 54.77 [8], at 1751 (1974)] is applied, there is no authority for awarding accounting costs in cases such as this. There is, therefore, no merit in the appeal from the denial of accounting costs. Accordingly, we limit our discussion to the denial of attorney’s fees.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Chester A. PARIZO, Defendant-Appellant.
    No. 502, Docket 73-2232.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 6, 1973.
    Decided April 29, 1974.

      George W. F. Cook, U. S. Atty., D. Vermont, for appellee.
    William H. Quinn, Burlington, Vt., for appellant.
    Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.

       Of the Southern District of New York, sitting by designation.

   PER CURIAM:

The firearm involved in this case was taken from a bureau drawer in a hotel room which had been occupied by defendant-appellant in the town of South Burlington, Vermont. It was taken no earlier than 3 P.M. by a lieutenant of police of that town who had been told it was there by the hotel manager. Defendant was checked out of the hotel at 1:48 P.M. However, he had been in the room with friends after that checkout but had physically vacated the premises before the hotel manager discovered the gun.

Defendant sought to suppress use of the firearm as evidence against him on the ground that its removal by the lieutenant was in violation of the prohibition against unreasonable seizures contained in the Fourth Amendment. Admittedly the firearm was not seized incident to a lawful arrest and was not obtained pursuant to a search warrant. Defendant also sought to suppress other evidence, including defendant’s statements to officers with reference to whether he possessed the firearm. An evidentiary hearing was held on defendant’s motion, and three days later the trial judge denied the motion. Agreeing that in lieu of recalling witnesses the testimony adduced at the suppression hearing could be considered by the trial judge at trial, always subject, however to defendant’s continuing objection to the admission of testimony and evidence which defendant had sought to suppress, defendant waived a jury and was promptly tried to the court and convicted of possessing the firearm.

As the case has developed on appeal it appears that a decisive issue may well be whether the hotel room had been abandoned by appellant when the firearm was found. No finding was made below on the point, and we adopt the suggestion contained in. the Government’s brief that the case be remanded so that the trial court, after allowing the parties to adduce evidence thereon if they desire to do so, may state conclusions on the issue.

Case remanded for further proceedings consistent with this opinion.


author: SPRECHER, Circuit Judge.

text:
    INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 336, Plaintiff-Appellant, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant-Appellee.
    No. 73-1452.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 27, 1974.
    Decided May 2, 1974.

      Gilbert A. Cornfield and Thomas W. Duda, Chicago, Ill., for plaintiff-appellant.
    Edward W. Bergmann, Chicago, Ill., for defendant-appellee.
    Before SWYGERT, Chief Judge, and STEVENS and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

Plaintiff IBEW sued Illinois Bell Telephone Co. to prevent it from financing the defense of IBEW members in a state court suit for enforcement of union fines. The question on appeal is whether section 101 of the Labor-Management Reporting and Disclosure Act (29 U.S.C. § 411) confers on a labor union the right to resolve its disputes with dissident members without financial support of those members by their employer.

The dispute between IBEW and certain of its members dates back to the 1968 strike against Illinois Bell. IBEW alleges that some of its members crossed picket lines and continued to work during the strike. The union filed charges in an intra-union proceeding against those members and conducted hearings which resulted in the assessment of fines of $100 to $500 against those found guilty. The fined members paid installments on their fines in order to appeal to the international vice president. After losing their appeals, the members refused to pay the balance of their fines.

The local president brought suit in the Circuit Court of Cook County to collect the fines. The members asserted seven affirmative defenses and filed a counterclaim to recover the installments they had paid. Illinois Bell admits that it is paying the legal fees and court costs of defendants in the state suit. It has also reimbursed the members for the installment payments.

IBEW filed an unfair labor practice charge of improper interference in internal union affairs with the NLRB. The regional director dismissed the charge on the basis of the Board’s view that an employer does not violate the National Labor Relations Act by offering legal and financial assistance to strikebreakers. Leeds & Northrup Co., 155 NLRB 1292 (1965); Standard Plumbing & Heating Co., 185 NLRB No. 63 (1970).

IBEW’s complaint in the district court alleges jurisdiction under section 102 (29 U.S.C. § 412) and charges Illinois Bell with violation of the second proviso of section 101(a)(4). Section 102 states: “Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. . . . ”

Since a union is a “person” (29 U.S.C. § 402(d)), the question is what rights the union has under section 101(a)(4):

Protection of the right to sue. — No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency, irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action or proceeding, or the right of any member of a labor organization to appear as a witness in any judicial, administrative, or legislative proceeding, or to petition any legislature or to communicate with any legislator: Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof: And provided further, That no interested employer or employer association shall directly or indirectly finance, encourage, or participate in, except as a party, any such action, proceeding, appearance, or petition.

We know of only three cases which deal with the second proviso of section 101(a)(4): UAW v. National Right to Work, 366 F.Supp. 46 (D.D.C.1973); Adamszewski v. Machinists Local 1487, 496 F.2d 777, No. 73-1166 (7th Cir., 1974); and Farowitz v. Musicians Local 802, 241 F.Supp. 895 (S.D.N.Y.1965).

UAW v. National Right to Work is the only affirmative suit by a union to vindicate its right under the second proviso. The union asked for equitable relief against a private foundation which solicitéd contributions from employers to finance legal actions brought by employees against their unions. The court found that section 101 confers substantive rights on the union which “include express assurance to labor organizations that they shall be immune from ‘interested employer’ intrusion in their judicial disputes with workers.” 366 F. Supp. at 48. Judge Richey found that, absent jurisdiction in the district courts, “the proviso would be a dead letter and the express congressional intent to safeguard intra-union affairs from employer interference would be frustrated.” 366 F.Supp. at 49. The court ruled it had subject matter jurisdiction over the suit.

IBEW urges us to carry the broad interpretation of section 101 in National Right to Work to its logical conclusion, that the proviso prohibits employer support of union members as defendants. We believe, however, that the expansive language of National Right to Work must be read in the context that the defendant foundation was financing suits by members against unions. Judge Richey may be correct in saying that Congress intended to prevent any form of management interference in internal disputes between unions and their dissident members. But the language Congress chose prohibits the financing of “any such action,” which refers back to the right of a member “to institute an action in any court.” We can only presume that Congress meant what it said, that an interested employer may not finance the institution of a suit by employees, but is free to finance a defense or a counterclaim.

We reach this conclusion reluctantly, because we recognize that the harm to the union is the same whether the employer finances defensive resistance to union discipline or underwrites the filing of a suit to enforce the LMRDA “Bill of Rights.” But the plain language of section 101(a)(4) gives plaintiff only half the right it attempts to assert against the employer; the statute does not protect it from company financing of employees as defendants. Nor would section 101 proscribe the employer’s instigation of resistance to the fines, since the employees have filed no suits against the union.

We hold that Illinois Bell did not violate any right given IBEW under section 101(a)(4). We affirm dismissal of the complaint for lack of jurisdiction over the subject matter.

Affirmed.

      . Illinois Bell contends the NLRB has exclusive competence over this case and that its dismissal preempts federal court jurisdiction under the LMRDA. The contention is erroneous because the LMRDA proscribes conduct not covered by the NLRA. Claims regarding violation of section 101 are properly referred to the district courts. Boilermakers v. Hardeman, 401 U.S. 233, 237-239, 91 S. Ct. 609, 28 L.Ed.2d 10 (1971).

      . We note that some courts have read the second sentence of section 102 to limit jurisdiction to unions as the only proper defendants. (“Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.”) Thompson v. New York Central Rr. Co., 361 F.2d 137 (2d Cir. 1966). As shown by the exhaustive discussion of the legislative history in Rota v. Brotherhood of Railway, Airline & Steamship Clerks, 338 F.Supp. 1176 (E.D.Pa. 1972), the second sentence concerns venue over labor organizations and does not narrow the jurisdictional grant of the first sentence.
      Defendant cites a number of cases for the proposition that LMRDA jurisdiction does not cover employers. The cases are in-apposite ; they hold only that the LMRDA creates no rights in an employee pertaining to his employment relationship. E. g., Abrams v. Carrier Corp., 434 F.2d 1234 (2d Cir. 1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545 (1971) ; Duncan v. Peninsula Shipbuilders Ass’n, 394 F.2d 237 (4th Cir. 1968). The second proviso in section 101(a) (4) arguably does create rights in a union against an interested employer.

      . Adamszewski and Farowitz are cases in which the defendant unions raised the financing proviso as an affirmative defense. In Adamszewski, this court upheld dismissal of the complaint because the suit was financed by an interested employer. In Farowitz, the court did not dismiss the suit because it found the employers were not “interested.”

      . We find nothing in the legislative history concerning the defense of suits against union members.

      . The district judge found that Illinois Bell violated the second proviso of section 101(a)(4), but that section 102 did not grant jurisdiction over an employer. We disagree with his reasoning, but reach the same result of dismissal.


author: PER CURIAM.

text:
    PROTECTION MARITIME INSURANCE COMPANY LIMITED, OF LONDON, ENGLAND and Glacier General Assurance Company of Missoula, Montana, Plaintiffs-Appellants, Waxler Towing Company, Intervenor Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-1769.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 12, 1974.
    Decided April 26, 1974.
    R. L. Myre, Jr., Paducah, Ky., for plaintiffs-appellants; James G. Wheeler, Wheeler & Boaz, Paducah, Ky., on brief.
    Neil H. Koslowe, Atty., Dept. of Justice, Washington, D. C., for defendant-appellee; Irving Jaffe, Acting Asst. Atty. Gen., George J. Long, U. S. Atty., Walter H. Fleischer, Atty., Dept. of Justice, Washington, D. C., on brief.
    Before CELEBREZZE, PECK and ENGEL, Circuit Judges.
   PER CURIAM.

The owner and the insurers of the motor vessel (M/V) Eddie Waxier, plaintiffs-appellants herein, sought to recover damages sustained when the vessel sank after hitting a submerged mooring cell constructed and maintained by the United States Corps of Engineers near Lock and Dam No. 50 on the Ohio River. This appeal was perfected from an order entered by the district court dismissing the complaint following a trial to the court.

The accident occurred as the M/V Eddie Waxier was proceeding down river on a dark but clear morning in May of 1971. High water conditions had obviated the need of negotiating the lock, but at the same time, had caused the submersion of five mooring cells situated near the dam. In accord with normal practice, the cells were marked by radar reflective floating buoys attached to the top of each cell. The cells, concrete cylinders 30 feet in diameter and 17 feet high used as moorings for barges waiting to pass through the lock, had been placed in the river in 1969, and were shown on current navigation chart revisions. Additionally, as part of its regular procedure the Corps had sent a notice to the Waxier Towing Company informing it of the position of each of the new cells. The Waxier vessel ran afoul of one of the cells on the down stream side of the dam and sank in ten minutes.

At the time of the accident, there was no lookout on the deck of the M/V Eddie Waxier. The pilot, who had not been on the Ohio for five years, was unaware of the cells, and the master of the vessel, who was aware of them, failed to inform the pilot. Further, the only charts on board were seven years old and unrevised, and they did show the existence of the cells.

The district court, after hearing the evidence, concluded that the United States was not liable. It also found that Waxier Towing was guilty of negligence in four respects: (1) failure to have up-to-date navigation charts on board; (2) lack of a lookout, other than the pilot, contrary to the rules of navigation; (3) use of a pilot who had not been on the Ohio for five years; and (4) the failure of the vessel’s master to inform the helmsman of the cells.

Appellants complain that the decision to dismiss the complaint was based entirely on a finding that the owner was guilty of contributory negligence. It is their position that the court erroneously applied the common law doctrine of contributory negligence in bar of their claim in this admiralty case. They assert that under maritime law contributory negligence mitigates, but does not necessarily bar, a negligence action, and that the doctrine of comparative negligence should have been applied in this case.

Unquestionably, contributory negligence is not an absolute bar to recovery in admiralty cases. Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); American President Lines, Ltd. v. Welch, 377 F.2d 501 (9th Cir. 1967). Although not always so named, the doctrine applicable in admiralty cases in which both plaintiff and defendant are negligent to some extent, is comparative negligence. Mroz v. Dravo Corp., 429 F.2d 1156 (3rd Cir. 1970). It is axiomatic, however, that the comparative negligence doctrine contemplates a finding of negligence on the part of both parties and that it is inapplicable where defendant is not negligent. Hawley v. Alaska S.S. Co., 236 F. 2d 307 (9th Cir. 1956); 65A C.J.S. Negligence § 169 (1966). Although the district court’s memorandum opinion did not stress this point, there was virtually no evidence of negligence on the part of the appellee herein.

Appellants’ case was based almost exclusively on its contention that the steel cable by which the warning buoy was attached to the cell was 150 feet long, enabling the buoy to drift far from the cell. The district court found, however, that the weight of the testimony established that the cable was between 15 and 16 feet in length, and substantial evidence in the record supports this finding. In light of the record, we find no basis for the claim that the findings of the district court were clearly erroneous.

Appellants having failed to make out a case of negligence against appellee, the order of dismissal was correctly entered. Accordingly, the judgment in favor of appellee is affirmed.


author: CUMMINGS, Circuit Judge.

text:
    Burman D. CATON and Dorothy Caton, Appellants, v. Donald L. HARDAMON, Administrator of Estate of Miles W. Payne, Appellee.
    No. 73-1425.
    United States Court of Appeals, Seventh Circuit.
    Heard Feb. 13, 1974.
    Decided May 6, 1974.
    Donald F. Foley, Indianapolis, Ind., for appellants.
    Grace M. Curry, Indianapolis, Ind., for appellee.
    Before HASTINGS, Senior Circuit Judge, and CUMMINGS and STEVENS, Circuit Judges.
   CUMMINGS, Circuit Judge.

Plaintiffs, a West Virginia married couple, filed two diversity suits in the court below complaining of an Indiana defendant, Miles Payne. They alleged that in August 1969, Payne negligently drove his 1963 Buick automobile into plaintiffs’ 1967 Yamaha motorcycle, causing the husband extensive injuries and damaging his motorcycle. The husband sought $50,000 damages and the wife sought $15,000 damages. After Payne’s death, the present defendant was substituted as his administrator. At a consolidated trial the jury returned verdicts for defendant and judgments were entered thereon on the same date. In accordance with his customary practice, the district judge permitted the exhibits to be taken into the jury room during their deliberations. Exhibit A contained a prior inconsistent statement of a non-party witness admitted into evidence without objection. The sole question on appeal is whether the district court erred in allowing Exhibit A to be taken to the jury room for consideration of the jurors during their deliberations. We hold that this was permissible and therefore affirm.

During the jury trial, Randy Love was an occurrence witness for the plaintiffs. Plaintiff Burman Catón testified that he entered the intersection as the traffic light changed from green to yellow. Two eyewitnesses testified that he entered the intersection on the red light. A third eyewitness, Randy Love, gave trial testimony that would support an inference that Catón entered the intersection before the change from yellow to red. During cross-examination of Love, defense counsel offered in evidence an inconsistent statement that Love had signed ten days after the accident corroborating the other two eyewitness’. testimony that Catón had entered the intersection on the red light. Plaintiffs’ counsel initially objected to the admission of the statement because defendant’s counsel had not laid a proper foundation therefor. However, after defense counsel1 laid the usual foundation in order to impeach the witness, his prior statement was admitted without objection and marked as defendant’s Exhibit A.

Twenty-six exhibits were admitted into evidence and were all sent to the jury room. Twenty-one of these exhibits were plaintiffs’; the remainder were defendant’s, including the controversial Exhibit A.

Love’s statement was received in evidence as a prior inconsistent statement for the purpose of impeaching his credibility. The following instruction was given by the district judge with respect to impeaching statements:

“The credibility of a witness may be impeached by proof that he made statements, either written or oral, out of court contrary to, and inconsistent with, what he testifies during the trial concerning matters material and relevant to the issues.
“If you find any witness has thus been impeached, you have the right to reject all the testimony of such witness, except in so far as the witness has been corroborated by other credible evidence in these cases.
“While it is proper for you to reject all of the testimony of a witness who has been impeached, yet I instruct you it would not be proper for you to consider such impeaching testimony as either tending to prove or disprove any of the material allegations of plaintiffs’ complaints or defendant’s answers, but such impeaching evidence can only be considered by you in determining the credibility of the wit- , ness. However, it is for you to determine whether the witness has in fact been impeached before you have the right to reject all or any part of the testimony of such witness.”

Plaintiffs do not challenge this instruction but only assert that the district judge should not have permitted the impeaching Exhibit A to go to the jury room.

In a recent Indiana criminal case, the Supreme Court of Indiana held that it was error to allow the jury to take a witness’ prior inconsistent statement to the jury room. Thomas v. State, 289 N.E.2d 508 (1972). If Thomas is binding here, we will of course follow it. However, we are more persuaded by Chief Justice Arterburn’s dissent:

“I do not think we should be too restrictive or concerned with what the jury receives in the jury room for consideration, during its deliberations, so long as it is competent evidence. The fear that one part of evidence will be overly emphasized is more than counterbalanced by the fact that the memory of the jurymen may not be sufficient to retain details as to exhibits or testimony. Why should a juryman be required to rely upon memory, which can be erroneous and which can be corrected by the actual facts. We are seeking the truth after all.” (289 N.E.2d at 510.)

Plaintiffs contend that under Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the district court was required to follow the state rule adopted in the Thomas ease. They argue that because the matter is important, it must be substantive. A corollary of this position would be that only trivial rules are procedural. We disagree. Plaintiffs’ position was specifically rejected in a related context in Sibbach v. Wilson & Co., 312 U.S. 1, 14, 61 S.Ct. 422, 426, 85 L.Ed. 479:

“If we were to adopt the suggested criterion of the importance of the alleged right we should invite endless litigation and confusion worse confounded. The test must be whether a rule really regulates procedure, — the judicial process for enforcing rights and duties recognized by substantive law * *

The second sentence of the passage just quoted was repeated in Hanna v. Plumer, 380 U.S. 460, 464, 85 S.Ct. 1136, 14 L.Ed.2d 8, a case applying Erie.

Sending items to the jury room is “merely a form and mode of enforcing” the rights of the parties. See Byrd v. Blue Ridge Rural Electric Coop., Inc., 356 U.S. 525, 536, 78 S.Ct. 893, 900, 2 L.Ed.2d 953. It is hard to imagine any issue more procedural than the one here. In a pioneer decision under the Conformity Act, Nudd v. Burrows, 91 U.S. 426, 441-442, 23 L.Ed. 286, it was held that instructing the jury in writing was not the kind of procedure regulated by the Conformity Act, but rather a matter of “personal conduct and administration of the judge in the discharge of his separate functions” to be governed by “certain powers inherent in the judicial office.” Id. at 442. Consequently, state practice is not relevant to what a federal court may send to the jury room. Pass v. Firestone Tire & Rubber Co., 242 F. 2d 914, 919 (5th Cir. 1957); see also Goins v. United States, 99 F.2d 147, 151 (4th Cir. 1938). Indiana law does not apply to this case.

Federal law is clear that a decision whether to send exhibits to the jury room is within the discretion of the trial judge. United States v. Gross, 451 F.2d 1355, 1358-1359 (7th Cir. 1971); Miller v. New York Central R.R., 239 F.2d 10, 14 (7th Cir. 1956); Shane v. Warner Mfg. Corp., 229 F.2d 207, 210 (3d Cir. 1956); cf. United States v. Cobb, 397 F.2d 416, 419 (7th Cir. 1968). Federal Rule of Civil Procedure 43(a) does not control this very issue, but its liberal spirit is instructive: federal district courts are to receive evidence admissible under either state or federal law, and the “rule which favors the reception of the evidence governs * * *Since Exhibit A was properly admitted under Rule 43(a), the trial court was free to send it to the jury.

In permitting the exhibits to go to the jury room, Chief Judge Steckler remarked as follows:

“I feel the legal profession owes a duty to update some of the antiquated practices, techniques; and I think allowing the jury to have before them the exhibits while they are in deliberation is an updating of an archaic practice that obtained and still obtains in many, many courts. Lawyers do not want juries to actually predicate their verdict upon the actual concrete evidence if it doesn’t fall in their favor. They would rather have the jury guess for the other side. Now, each feels that way. Each side feels that way. If the evidence is not so concretely in favor of that particular side in regard to a particular issue; rather than have the jury base its verdict upon the evidence, the real evidence, they would rather have the jury to operate in the dark and guess as to what was said during the trial three days earlier as to what particular pictures show or what particular exhibit indicated, what some lawyer said during the trial. They would rather have the jury to have one broad, glossy impression of what transpired during the trial, and then go forth and guess, and come to a conclusion.”

We sympathize with these views and hold that the district judge acted within his discretion in sending Exhibit A to the jury room.

Judgments affirmed.


text:
    Mary Frances JAYNES, Appellant, v. Manly W. JAYNES, Jr., et al., Appellees.
    No. 801, Docket 73-2809.
    United States Court of Appeals, Second Circuit.
    Argued April 3, 1974.
    Decided April 22, 1974.
    Mary Frances Jaynes, pro se.
    Before HAYS and OAKES, Circuit Judges, and CHRISTIANSEN District Judge.

       Of the United States District Court for the District of Utah, sitting by designation.

   PER CURIAM:

This pro se complaint against individuals for acts allegedly done in Texas, Louisiana and Mississippi may be treated as one for violation of appellant’s civil rights or as one based upon diversity of citizenship. These individuals, appellees here, were neither served with process nor did they appear in this action. The district court treated the case as primarily a civil rights case and dismissed it on the ground of improper venue, 28 U.S.C. §§ 1391(b) & 1406(a). It did so correctly, since none of the acts alleged to have deprived appellant of her civil rights took place in the Northern District of New York, and none of the alleged perpetrators reside in the Northern District of New York.

Beyond this, even if jurisdiction were treated as being based solely on diversity of citizenship under 28 U.S.C. § 1391(a) — in which event venue in the Northern District would be proper — the appellant has never obtained service of process over any of the appellees within the territorial limits of New York State. Fed.R.Civ.P. 4. As has been held, “the presence of venue does not dispense with the necessity for service in order to acquire personal jurisdiction.” Rabiolo v. Weinstein, 357 F.2d 167, 168 (7th Cir. 1966), cert. denied, 391 U.S. 923, 88 S. Ct. 1816, 20 L.Ed.2d 659 (1968).

Appellant apparently did ask the district court to subpoena the defendants below, over 30 in number, to appear. True, the district court has such power as to witnesses if the witnesses in a civil case reside within the district or without the district but within 100 miles of the place of hearing or trial. Fed.R. Civ.P. 45(e)(1). Similarly, in a criminal case brought by the United States witnesses may be subpoenaed without regard to where they live in this country. Fed.R.Crim.P. 45(e)(1). But this is a civil case in which appellant seeks to have the district court subpoena parties who reside in Texas or other parts of the country more than 100 miles from any place within the Northern District of New York for the purpose of obtaining jurisdiction over them. The district court has no power to subpoena these parties and as such had no jurisdiction; accordingly, we have no choice but to affirm its judgment of dismissal. See, e. g., Shahmoon Industries, Inc. v. Imperato, 338 F.2d 449 (3d Cir. 1964).

Because there is no jurisdiction in this or the district court appellant’s various requests for relief such as instituting or causing to be instituted proceedings in Texas regarding the custody of her son or the conveyance of her real or personal property said to be in Texas are beyond our power to grant.

Judgment affirmed.


author: MURRAH, Circuit Judge.

text:
    Charles E. GEORGE and Marilyn Pegg Synco, Individually and on behalf of Michael James Pegg and Debra Sue Pegg, minors, Plaintiffs-Appellants, v. STRICK CORPORATION, a Pennsylvania corporation et al., Defendants-Appellees.
    Nos. 73-1124, 73-1125.
    United States Court of Appeals, Tenth Circuit.
    Submitted Nov. 12, 1973.
    Decided April 26, 1974.
    Rehearing Denied May 22, 1974.

      John W. Norman of Lampkin, Wolfe, Burger, Abel, McCaffrey & Norman, Oklahoma City, Okl., for plaintiffs-appellants.
    William G. Smith of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., for defendant-appellee Strick Corp.
    Before LEWIS, Chief Judge, and MURRAH and HOLLOWAY, Circuit Judges.
   MURRAH, Circuit Judge.

Charles George and Marilyn Synco appeal from orders of the trial court dismissing two related diversity tort actions against a nonresident defendant for lack of in personam jurisdiction due to insufficient service under 12 O.S. § 1701.01 et seq. (1965 Supp.). This legislation is derived from the Uniform Interstate and International Procedure Act and the full text is pertinent to an understanding of our question:

§ 1701.01 “Person” defined As used in this Article, “person” includes an individual, his executor, administrator, or other personal representative, or a corporation, partnership, association, or any other legal or commercial entity, whether or not a citizen or domiciliary of this state and • whether or not organized under the laws of this state.
§ 1701.02 Personal jurisdiction
■ A court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his principal place of business in this state as to any cause of action or claim for relief.
§ 1701.03 Bases of jurisdiction
(а) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action or claim for relief arising from the person’s:
(1) transacting any business in this state;
(2) contracting to supply services or things in this state;
(3) causing tortious injury in this state by an act or omission in this state;
(4) causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;
(5) having an interest in, using, or possessing real property in this state; or
(б) contracting to insure any person, property, or risk located within this state at the time of contracting; or
(7) maintaining any other relation to this state or to persons or property including support for minor children who are residents of this state which affords a basis for the exercise of personal jurisdiction by this state consistently with the Constitution of the United States.
(b) When jurisdiction is based solely upon this section, the defendant’s appearance does not authorize the exercise of personal jurisdiction except as to a cause of action or claim for relief arising in the circumstances enumerated in this section.

Since plaintiffs relied exclusively on § 1701.03, the validity of service of process must depend upon the application of that statute as interpreted by the Oklahoma courts.

The facts are undisputed and simply stated. Plaintiff, George, and the decedent of plaintiff Synco, employees of Transcon Lines, picked up a trailer in Albuquerque, New Mexico, manufactured by defendant Strick Corporation. A highway accident in New Mexico allegedly caused by defective brakes on the trailer resulted in the death of Synco’s spouse and injury to George. These diversity suits were commenced in Oklahoma and service of process was attempted under § 1701.01 et seq., by obtaining service on Strick’s service agent in Texas in accordance with an order of the trial court. Strick moved to dismiss, alleging insufficient service to confer in personam jurisdiction, pointing out that the accident did not occur in Oklahoma, that Strick was not licensed to do business in the state and that the cause of action did not arise out of any of its activities within the State of Oklahoma. Plaintiffs, however, base their jurisdictional claim upon the admitted fact that prior to and after the accident in question Strick Corporation sold a quantity of its trailers to Lee Way Motor Freight of Oklahoma City; that it was therefore “doing business” in Oklahoma and amenable to service of process under § 1701.01 et seq., even though such business was wholly unrelated to the asserted cause of action.

Assuming arguendo that Strick’s sales of trailers to Lee Way constituted the “transacting [of] any business” within the State of Oklahoma, the threshold and we think decisive issue is whether § 1701.03 requires that the asserted cause of action arise from Strick's activities within the state. We are of the opinion that this section of the statute as authoritatively interpreted by Cresent Corporation v. Martin, 443 P.2d 111, 113 (Okl.1968), clearly does require that the cause of action arise from activities within the state and affirm the judgment.

Appellants meet the statutory “arising from” provision with the argument that since the due process clause of the United States Constitution, as interpreted by Perkins v. Benguet Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952), does not prohibit Oklahoma courts from acquiring in personam jurisdiction in this type of case, and inasmuch as the Oklahoma Supreme Court in Vemco Plating, Inc. v. Denver Fire Clay Co., 496 P.2d 117, 119 (1972), and Hines v. Clendenning, 465 P.2d 460, 462 (1970), has stated, as a general proposition, that § 1701.01 et seq., “was intended ‘to extend the jurisdiction of Oklahoma courts over nonresidents to the outer limits permitted by the’ United States Constitution’s due process requirements,” we should conclude that the “arising from” requirement contained in the statute is obviated.

Appellants’ premise, though facially plausible, is based on a misconstruction or a misapprehension of both federal and state law. In the first place it is important to understand that the pertinent federal cases do not compel state courts to open their doors to every suit which meets the minimum contacts requirements of the due process clause of the federal constitution. Thus, in Perkins, although the Supreme Court could find no due process requirement which would prohibit the State of Ohio from opening its doors to a cause of action which did not arise from acts within the forum, it was at pains to point out that “[t]he suggestion that federal due process compels the State to open its courts to such a case has no substance.” 342 U.S. at 440.

Secondly, appellants misapprehend Oklahoma law as interpreted in the Vemco and Hines cases. In Vemco, the asserted cause of action did arise out of the defendant’s manufacture of parts for a furnace used within the state and the Oklahoma Supreme Court had no occasion to deal with the specific question presented here. In Hines, although the court recognized that the cause of action in a divorce case did not classically arise out of the Oklahoma marriage contract, it was quick to emphasize that “the wife . . . was effectively abandoned in Oklahoma . . ..” (465 P.2d at 463), thereby establishing at least a tenuous link to the statutory requirement. Neither case expressly repudiated Crescent or any portion of § 1701.01, et seq., in which the legislature clearly evidenced an intent in § 1701.02 and in § 1701.03 to differentiate between persons located in or organized under the laws of the state and the transitory activities of nonresidents. In § 1701.02, the legislature granted in personam jurisdiction “as to any cause of action or claim for relief”; in § 1701.03, the legislature was careful to spell out the basis for in personam jurisdiction and to specify that the cause of action must arise from the specifically enumerated acts of a nonresident defendant. In light of such clear legislative intent we think the cited language in Vemco and Hines means simply that § 1701.03 authorizes in personam jurisdiction to the outer limits of due process when and only when the asserted cause of action arises from the defendant’s activities within the state. Consistent with this interpretation, the most recent Oklahoma Supreme Court case construing §§ 187 and 1701.01 et seq., has noted that the statutes are jurisdictionally the same and quotes from Crescent to the effect that “it must also appear from the record that plaintiff’s cause of action arises out of or is based upon the same acts of defendant alleged to confer jurisdiction in personam of said defendant under the cited statute.” Precision Polymers, Inc. v. Nelson, 512 P.2d 811 (Okl.1973).

Affirmed.

      . Oklahoma has three other apparently viable statutes which can be used to obtain jurisdiction over out of state defendants: 12 O.S. § 187, 18 O.S. § 1.17 and § 1.204a. Judge Holloway concurring in Burchett v. Bardahl Oil Company, 470 F.2d 793 (10th Cir. 1972). Section 187, enacted in 1963, is “somewhat similar” to § 1701.01 et seq., and for purposes of our case provides the same basis for jurisdiction. Crescent Corporation v. Martin, 443 P.2d 111, 113 (Okl.1968). See Precision Polymers, Inc. v. Nelson, 512 P.2d 811 (Okl.1973).

      . In the same case the Ohio Supreme Court concluded that it would violate the due process clause of the United States Constitution to subject a foreign corporation doing business in Ohio to service of summons in order to enforce a cause of action in no way related to the business activities of the corporation in the state.

      . Appellants call our attention to three cases which hold that the cause of action need not arise from the defendants’ activities within the forum state: Deloro Smelting and R. Co. v. Engelhard Minerals & C. Corp., 313 F.Supp. 470 (N.J.1970); Taisho Fire & Marine v. Vessel Montana, 335 F.Supp. 1238 (N.D.Cal.1971); Volkswagen Interamericana, S.A. v. Rohlsen, 360 F.2d 437 (1st Cir. 1966). The first two cases cite statutes which do not contain a specific “arising from” requirement, and the latter case outlines federal due process requirements for service of process upon corporations foreign to the United States. All three cases rely upon Perkins v. Benguet Mining Co., 342 U. S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952), and are consistent with it, but we do not think they are directly relevant to our consideration of § 1701.03.

      . The State of Maine also has a “long-arm” statute with an express “arising from” requirement. Courts interpreting that law have required a “direct causal connection” between an act in that state and the cause of action. Dufour v. Smith & Hamer, Inc., 330 F.Supp. 405, 407 (S.D.Me.1971).

      . This court in Burchett v. Bardahl Oil Company, 470 F.2d 793 (10th Cir. 1972), upheld jurisdiction under § 1701.01 et seq., in a complex factual situation which some may read as not having arisen from the defendant’s activities within the state. But that case did not expressly hold that the “arising from” requirement, noted in Judge Holloway’s concurrence, was not operative and we do not so interpret it. Moreover, federal courts before and after the Bardahl decision have interpreted § 1701.03 in a manner consistent with our own. See Judge Daugherty’s opinions in Garrett v. Levitz Furniture Corporation, 356 F.Supp. 283 (N.D.Okl. 1973), and Russell v. City Bank of Wellington, Texas, 264 F.Supp. 572 (W.D.Okl. 1967).


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OHIO HOIST MANUFACTURING CO., Respondent.
    No. 73-1480.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 14, 1973.
    Decided April 25, 1974.
    Peter Bernstein, N. L. R. B., for petitioner; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Abigail Cooley Baskir, Carolyn I. Polowy, Attys., N. L. R. B., Washington, D. C., on brief.
    Robert A. Dimling, Cincinnati, Ohio, for respondent; Daniel P. Dooley, Frost & Jacobs, Cincinnati, Ohio, on brief.
    Before PECK and LIVELY, Circuit Judges, and CECIL, Senior Circuit Judge.
   PER CURIAM.

This case is before the Court upon the application of the N. L. R. B. for enforcement of the Board’s Supplemental Decision and Order, issued on March 19, 1973, reported at 202 NLRB No. 68. On March 8, 1971, the Board issued its Decision and Order (188 NLRB 137) against the Company, Ohio Hoist Manufacturing Company, for violating Section 8(a)(3) and (1) of the Act in discharging employees Edmund Ross Bra-ham, Jr., Raymond E. Langdon, and Frank C. Smith because of Union activities. Again on April 9, 1971, the Board issued its Decision and Order (189 NLRB No. 96) against the Company for violating Section 8(a)(3) and (1) of the Act in the discharge of employee Charles L. Ferguson because of Union activities. These orders required the Company to reinstate and make whole the discharged employees. Thereafter, on petition of the Board to this Court for enforcement, a consent judgment was entered enforcing in full, against the Company, both orders of the Board.

The Supplemental Decision and Order of the Board, now before the Court, fixes the amount of back pay due each employee from the date of discharge to the date of reinstatement as follows: Edmund R. Braham, Jr., $5,126.23; Raymond E. Langdon, $2,732.37; Frank C. Smith, $5,621.97 and Charles L. Ferguson, $5,369.64. These amounts are arrived at by determining what each employee would have earned with the Company had he not been discharged, calculated on his average earnings prior to discharge, less money earned in other employment during the period of discharge.

The Company does not dispute the Board’s calculation of the employees’ earnings with the Company, its method of computing gross back pay, nor its right to require back pay awards under proper proof. The Company maintains that all of the employees negligently or wilfully failed to mitigate damages by making adequate efforts to secure interim employment and that therefore, they are not entitled to receive any back pay for the period of discharge.

The rule with reference to proof in a back pay proceeding is well stated in N. L. R. B. v. Brown & Root, Inc., 311 F.2d 447 (C.A. 8) at p.454,

“And, it may be conceded that in a back pay proceeding the burden is upon the General Counsel to show the gross amounts of back pay due. When that has been done, however, the burden is upon the employer to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability.”

See also N. L. R. B. v. Mastro Plastics Corporation, 2 Cir., 354 F.2d 170.

The Company claims that it has sustained its burden as shown from the testimony of the employees themselves. It says that the employees’ own accounts of their efforts to obtain interim employment does not demonstrate good faith efforts on their part. The Administrative Law Judge who heard the evidence on the supplemental proceedings to establish the amount of back pay awards made Findings of Facts and Conclusions of Law. He found that the Company had failed to carry the burden of proving that the employees’ attempts to obtain interim employment was inadequate and that therefore the employees were entitled to back pay in the amount as hereinbefore set forth with interest. We conclude that these findings and conclusions are supported by substantial evidence.

In addition to the claim of the Company that the employees did not make good faith efforts to obtain employment, it asserts that the gross pay of Langdon and Ferguson should be reduced because of absenteeism; that Langdon should be denied back pay during the time he held part time jobs in the discharge period and that Ferguson’s back pay should be reduced by an amount he was paid while participating in a manpower training program.

There is no merit to the claims with reference to absenteeism. Since the earnings with the Company during the discharge periods were based on average earnings prior to discharge, absenteeism would have been reflected in those averages. Rather than condemn Langdon for accepting part time jobs after he was discharged, he should be commended for it. There is no evidence that had he spent that time looking for a full time job he would have been successful.

On December 13, 1971, Ferguson enrolled in a Manpower Training Program to learn welding skills. When he received the offer of reinstatement from the Company on December 17, 1971, he decided to stay on the training program rather than accept reemployment with the Company. During the week of December 13-17 while on the training program he received $76.00 from the State of Ohio, part of which was for travel expenses. We conclude that this was tantamount to having accepted a permanent job on December 13, and terminating his. relationship with the Company at that time.

We grant enforcement of the Board’s Order subject to a termination of back pay for Ferguson as of December 13, 1971.


text:
    Mickey NOWLIN and Arlene Nowlin, Appellants, v. PROFESSIONAL AUTO SALES, INC., Appellee, and Dennis Henson, d/b/a M. W. S. Recovery Service, Intervenor. Leroy MAYHUGH, Appellant, v. BILL ALLEN CHEVROLET CO. and General Motors Acceptance Corp., Appellees.
    Nos. 73-1348 and 73-1450.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 14, 1973.
    Decided April 25, 1974.
    Terrence J. Ferguson, (argued) and R. Ladd Lonnquist, Robert S. Catz, Legal Aid Society of Omaha-Council Bluffs, Inc., Omaha, Neb., Michael B. Weisz, (argued) Legal Aid Society of San Diego, Inc., San Diego, Cal., Richard A. Weisz, Legal Aid Foundation of Long Beach, Long Beach, Cal., for Mickey Nowlin and Arlene Nowlin.
    James A. Hogan, Bernard Walsh, Jr., (argued), Michael C. Washburn, Robert A. Skochdopole, (argued) and Lyman L. Larsen, Omaha, Neb., for Professional Auto Sales et al.
    Charles C. Shafer, Jr. and Howard Chamberlin, Kansas City, Mo., for Leroy Mayhugh.
    James W. Benjamin, Paul Scott Kelly, Jr., (argued) and Lucian Lane, Courtney W. Perkins, Kansas City, Mo., for Bill Allen Chevrolet et al.
    Before LAY and HEANEY, Circuit Judges, and HARPER, Senior District Judge.

       The Honorable Roy W. Harper, United States Senior District Judge, Eastern and Western Districts of Missouri, sitting by designation.

   PER CURIAM.

These two cases were consolidated for argument. In each, the issue on appeal is whether the self-help repossession of plaintiffs’ motor vehicles, after plaintiffs defaulted on payment contracts which provided for such repossession, were acts under color of state law, thus creating a cause of action under 42 U.S. C. § 1983. Plaintiffs’ contentions are that enactment of §§ 9-503 and 9-504 of the Nebraska Commercial Code and §§ 400.9-503 and 400.9-504 of the Missouri Commercial Code, which authorize self-help repossession, constitute sufficient state involvement to invoke the jurisdiction of the federal courts.

In each case, the district court dismissed the complaint for lack of subject matter jurisdiction, finding that there was no state action. We affirm both judgments.

The facts in the Nowlin case need only brief recitation. Plaintiff Nowlin purchased a 1967 Plymouth automobile from defendant Professional Auto Sales. After receiving a $500 trade-in allowance, Nowlin signed an installment sales contract for the balance due. When Nowlin defaulted on the payments, defendants, without prior notice or hearing, took the automobile from its parking place in front of Nowlin’s home. After defendants refused Nowlin’s request to return the automobile, plaintiff Nowlin brought this action, claiming an unconstitutional taking of his property without due process of law.

In the Mayhugh case, the facts are basically similar. In October, 1970, Mayhugh purchased a 1970 Chevrolet truck from defendant Bill Allen Chevrolet. Mayhugh traded in a 1969 Plymouth automobile and paid $500.00 in cash. For the balance due, Mayhugh signed an installment sales contract. Defendant Bill Allen Chevrolet assigned this contract to defendant General Motors Acceptance Corporation. Mayhugh made no payments on the contract after November, 1971. During that month, Mayhugh delivered the truck to Bill Allen Chevrolet for repair of the frame, which had become cracked. Allen Chevrolet offered to repair the truck, but Mayhugh refused the type of repair offered. Mayhugh instead demanded replacement or repurchase of the truck by Allen Chevrolet, and threatened legal action if his demand was not met. Mayhugh refused to accept redelivery of the repaired truck. On December 14, 1971, defendant General Motors Acceptance Corporation repossessed the truck for failure to keep up with the payments. At the time of repossession, the truck was parked on the lot of Bill Allen Chevrolet, where plaintiff had delivered it after discovering the cracked frame. Mayhugh then filed this suit, alleging violation of his due process rights under color of state law.

Recently, in Bichel Optical Laboratories v. Marquette National Bank, 487 F.2d 906 (8th Cir. 1973), we had occasion to consider the issue presented here. The court there held that:

[T]he State of Minnesota by the mere passage of the Article 9 “self-help” remedies has not so significantly involved itself in the procedures followed by appellee bank as to constitute an act under color of state law giving rise to a § 1983 action.

Bichel, supra at 907.

We adhere to that view in the present cases. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), is clearly distinguishable. As we noted in Bichel, while Fuentes involved the prejudgment seizure of goods by a state agent pursuant to a writ of replevin, the procedures challenged in Bichel and in the instant cases “involve only private actions arising out of the express written agreements between the parties.” Bichel, supra, 487 F.2d at 907. See also Shirley v. State National Bank, 493 F.2d 739 (2d Cir. 1974); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973); Kirksey v. Theilig, 351 F.Supp. 727 (D.Colo.1972); Pease v. Havelock National Bank, 351 F.Supp. 118 (D.Neb.1972); Greene v. First National Exchange Bank, 348 F. Supp. 672 (W.D.Va.1972); Oller v. Bank of America, 342 F.Supp. 21 (N.D. Cal.1972).

The judgments are affirmed.

      . Because of these facts, the district court in MayhtigJi, after first finding no significant state involvement, held alternatively that relief should be denied because Mayhugh had voluntarily abandoned his possessory rights in the truck by rejecting it “in preparation for a suit for damages for breach of the sale agreement, including return of the purchase price.” In view of our affirmance on the jurisdictional issue, we have no occasion to consider this alternative holding.


text:
    Bruce E. KRONENBERGER, etc., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 74-1204.
    United States Court of Appeals, Seventh Circuit.
    May 1, 1974.
    Richard L. Marcus, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for petitioners.
    Elliott Moore, Deputy Associate Gen. Counsel, NLRB, Washington, D. C., for respondent.
    Before PELL, STEVENS and SPRECHER, Circuit Judges.
   PER CURIAM.

On November 13, 1973, Cap Makers Union Local No. 5, United Hatters, Cap and Millinery Workers International Union, AFL-CIO, filed its petition in the District of Columbia Court of Appeals seeking to review the NLRB’s order in Bruce E. Kronenberger and Herbert Schoenbrod d/b/a American Needle & Novelty Co., 206 N.L.R.B. No. 61 (Oct. 24, 1973). Some two weeks later American Needle filed a “Motion for Reopening of the Record and for Reconsideration En Banc.” It also moved to intervene in the court of appeals and to dismiss on the ground that, because of its pending motion for reconsideration, the Board’s order was not final. The court of appeals has not, as of yet, ruled on either of these motions. On February 28, 1974, however, the Board denied the motion for reconsideration and thereafter the company filed a petition for review in this court.

28 U.S.C. § 2112(a) provides in part; If proceedings have been instituted in two or more courts of appeals with respect to the same order the agency, board, commission, or officer concerned shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted. The other courts in which such proceedings are pending shall thereupon transfer them to the court of appeals in which the record has been filed.

Pursuant to § 2112(a) the Board has moved this court to transfer the present proceeding to the District of Columbia. The company, however, has opposed the motion. It argues that the union’s petition was filed prematurely and thus ineffectively. Cf. United States v. Crescent Amusement Co., 323 U.S. 173, 177-178, 65 S.Ct. 254, 89 L.Ed. 160. Consequently, contends the company, it was the “first to institute proceedings,” and this court has exclusive jurisdiction to review the Board’s order.

In our opinion the decisions in Crescent and its progeny are not applicable to the present proceeding. The Senate Judiciary Committee, when it recommended passage of what is now 29 U.S.C. § 160(d)-(f), explained that these provisions would vest jurisdiction in a court of appeals immediately upon the filing of a petition for review; jurisdiction, however, would be concurrent with that of the Board until the transcript of record was filed. According to the Committee, these provisions were

added in order to make clear that up to the filing of the record or transcript, an agency may retain jurisdiction in order to permit that agency to entertain motions for additional processes before the administrative agency, such as the modification or setting aside of an order.

In short, Congress apparently intended that a proper party may be the “first to institute proceedings in a court of appeals,” within the meaning of § 2112(a), despite the fact that the Board may retain jurisdiction to modify or set aside the original order. Cf. Saturn Airways, Inc. v. CAB, 155 U.S.App.D.C. 151, 476 F.2d 907, 909 (1973).

Since the petition for review was initially filed in the District of Columbia, proceedings were first instituted in that circuit. Thus, we will grant the Board’s motion to transfer.

Motion granted.

      . Immediately after filing its motion the Board, over the company’s protest, transmitted the record to the District of Columbia.

      . In Crescent the Government was allowed to appeal, pursuant to the Expediting Act, while motions to amend the final judgment of the district court were still pending. Citing Leishman v. Associated Electric Co., 318 U.S. 203, 63 S.Ct. 543, 87 L.Ed. 714, and Zimmern v. United States, 298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118, the Supreme Court held that this appeal was “premature” and “therefore a nullity.” The Government, however, had also taken an appeal after the motions to amend were ruled upon. The Court determined that this second appeal was proper.

      . Even if these decisions had some applicability, it is doubtful that they would require the result sought by the company in this case. See generally Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1099-1101 (9th Cir. 1971).

      . Act of August 28, 1958, Pub.L.No.85-791, § 13, 72 Stat. 945-946. The relevant portions of § 2112(a) were also part of this same Act. Id. § 2, 72 Stat. 941. Furthermore, § 160(e) and (f) require that the record be filed as provided in § 2112.

      . S.Rep.No.2129, 85th Cong., 2d Sess. (1958), reprinted in 1958 U.S.Code Cong. & Admin.News, pp. 3996, 3998.


text:
    UNITED STATES of America, Appellant, v. William Jerome HARMON, Appellee.
    No. 952, Docket 74-1081.
    United States Court of Appeals, Second Circuit.
    Argued April 16, 1974.
    Decided April 24, 1974.
    Eugene Welch, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty., for the Northern District of New York, of counsel), for appellant.
    David M. Garber, Syracuse, N. Y. (Bond, Schoeneck & King, Syracuse, N. Y., of counsel), for appellee.
    Before KAUFMAN, Chief Judge, CLARK, Associate Justice, and SMITH, Circuit Judge.

       United States Supreme Court, retired, sitting by designation.

   PER CURIAM:

In this appeal we are called upon to determine whether an indictment charging false personation of an officer or employee of the United States (18 U.S. C. § 912) is fatally defective if it fails to allege that the accused performed an “act” under his falsely assumed identity. Judge Port dismissed four counts of the seven count indictment which charged Harmon with falsely pretending to be an Air Force Sergeant and recently returned Vietnam prisoner of war. The government appeals that order of dismissal (18 U.S.C. § 3731).

The plain language of § 912 is dispositive of this appeal. That section provides, in relevant part:

“Whoever falsely assumes or pretends to be an officer or employee acting under authority of the United States or any department, agency or officer thereof, and acts as such shall be fined not more than $1,000 or imprisoned not more than three years, or both.”

It is clear from the statute that “acting” is a conjunctive element of the offense and must be joined with the false assumption of identity in order to allege a violation.

Count I of the indictment, which is virtually identical to the other counts dismissed by Judge Port, alleges merely that on or about March 5, 1973, Harmon pretended to be an Air Force Sergeant recently returned from a Vietnamese prisoner of war camp. It does not allege that he performed any acts under the guise of this assumed identity. The Government contends that the failure to specify an independent act does not render the indictment deficient because the pretense itself may serve as the required act. This argument is untenable. If mere pretense sufficed to allege a violation of § 912, then the language of the statute, which plainly requires not only that the accused falsely personate an officer but also that he “act as such,” would be mere surplusage. Penal statutes, in particular, will not permit such a strained construction.

Since we believe that counts I, II, IV and VI are each defective for failure to allege the requisite “act,” we need not enter the fray between the Fourth and Ninth Circuits, on the one hand, and the Fifth Circuit, on the other, concerning the question whether intent to defraud is an essential element of § 912. Compare, United States v. Guthrie, 387 F.2d 569 (4th Cir. 1967), cert. denied, 392 U. S. 927, 88 S.Ct. 2284, 20 L.Ed.2d 1386 (1968) and United States v. Mitman, 459 F.2d 451 (9th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 111 (1972), with United States v. Randolph, 460 F.2d 367 (5th Cir. 1972) and Honea v. United States, 344 F.2d 798 (5th Cir. 1965).

Affirmed.

      . Judge Port dismissed counts I, II, IV and VI. The remaining counts (III, V and VII) allege that Harmon violated 18 U.S.C. § 702, which proscribes the unauthorized wearing of the uniform of any of the armed forces of the United States. These counts were not dismissed.

      . Count I alleged: “On or about the 5th day of March, 1973, in the Northern District of New York, William Jerome Harmon, wilfully and knowingly did falsely pretend and assume to be an officer and employee of the United States acting under the authority thereof, that is, a Sergeant in the United States Air Force and did falsely take upon himself to act as such in that he falsely stated to William Pennella that he was a Sergeant in the United States Air Force currently on leave, and in such pretended and assumed capacity Wiliam Jerome Harmon, at the time and place aforesaid did falsely pretend to William Pennella to be a recently returned Vietnam Prisoner of War”.

      . Indeed, the Government’s contention that pretense itself can serve as the required act would result in no functional distinction between the misdemeanor described in 18 U.S. O. § 702 and the felony described in § 912 where the defendant wore a uniform.


author: PER CURIAM. PER CURIAM:

text:
    AJAYEM LUMBER CORP., Plaintiff-Appellee, v. PENN CENTRAL TRANSPORTATION CO. et al., Defendants-Appellees, The Long Island Rail Road Company, Defendant-Appellant. The LONG ISLAND RAIL ROAD COMPANY, Third-Party Plaintiff-Appellant, v. UNITED STATES of America, Third-Party Plaintiff-Appellant, and Interstate Commerce Commission, Third-Party Plaintiff-Appellee. PENN CENTRAL TRANSPORTATION CO. et al., Plaintiffs-Appellees, The LONG ISLAND RAIL ROAD COMPANY, Defendant-Appellant.
    Nos. 843, 848, Dockets 72-2123, 72-2189.
    United States Court of Appeals, Second Circuit.
    Argued June 4, 1973.
    Decided March 29, 1974.
    On Rehearing May 1, 1974.

      Walter J. Myskowski, Washington, D. C. (George M. Onken, Jamaica, N. Y., Robert R. Prince, New York City, Richard H. Stokes, Jamaica, N. Y., on the brief), for appellant Long Island Rail Road Co.
    John B. Wyss, Washington, D. C. (Carl D. Lawson, Thomas E. Kauper, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., on the brief), for appellant U. S.
    Raymond M. Zimmet, Washington, D. C. (Fritz R. Kahn, Gen. Counsel, I. C. C., Washington, D. C., on the brief), for appellee Interstate Commerce Commission.
    Edward A. Kaier, Philadelphia, Pa. (Jerome H. Shapiro, New York City, Richard J. Murphy, Philadelphia, Pa., Richard B. Wachenfeld, Newark, N. J., Frederick G. Hoffmann, New York City, Andrew C. Armstrong, Baltimore, Md., on the brief), for appellee Railroads.
    Before HAYS, MANSFIELD and MULLIGAN, Circuit Judges.
   PER CURIAM.

Appellant Long Island Rail Road Company petitions for clarification of our order of November 7, 1973, with respect to the measure of damages which the Long Island is entitled to recover.

In the absence of some showing to the contrary, it would appear that the Long Island is entitled to any net revenue reduction caused by the increased joint rates to which it objected. In order to recover the Long Island would have to show the reduction in traffic attributable to the new rates and the revenue it would have realized on the lost traffic if the rates had not been increased over its objection. Offset against this amount would be the increased revenue realized by the Long Island as a result of the increased rates and the reduction in expenses occasioned by its handling of a reduced volume of business.

ON PETITION FOR REHEARING

PER CURIAM:

By an opinion dated November 7, 1973, this court reversed a judgment entered in the United States District Court for the Eastern District of New York and remanded the cause for determination of damages. On a petition for clarification we entered an order dated March 29, 1974, clarifying as to the measure of damages our opinion of November 7, 1973. The Long Island Rail Road Company has now petitioned for a rehearing on our order of March 29, 1974.

We grant the motion for rehearing and on consideration thereof we decide to adhere to our order of March 29,1974.


text:
    Howard Frank BAILEY, Sr., and Robert Martin Hood, Appellants, v. Joe CRAIN, Chief of Police, et al., Appellees.
    No. 73-1684.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 15, 1974.
    Decided April 22, 1974.
    Louis Gilden, St. Louis, Mo., for appellants.
    No appearance made nor brief filed for appellees.
    Before HEANEY and STEPHENSON, Circuit Judges, and SMITH, Senior District Judge.

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

   PER CURIAM.

The appellants filed suit under 42 U. S.C. §§ 1981, 1983 and 1985 in the United States District Court for the Western District of Arkansas. The appellants alleged in specific and detailed language that while confined in the Hot Springs, Arkansas, jail awaiting trial on a robbery charge, the defendants denied them needed medical treatment for various ailments, subjected them to cruel and unusual punishment by placing them in an unhealthy maximum security cell without cause, denied them access to the courts, and “continuously” harassed them.

The District Court ordered the complaint filed and dismissed it for failure to state a claim and as frivolous and malicious. A prisoner’s petition should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of' facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Jones v. Lockhart, 484 F.2d 1192 (8th Cir. 1973).

Applying this standard to the appellants’ claims, we conclude that it was error for the District Court to dismiss their petition for failure to state a claim. In addition, we find no support in the record for the District Court’s conclusion that the petition was frivolous and malicious. We remand to the District Court with directions to it to permit the complaint to be filed and served on the defendants.


text:
    David Wayne BURKS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2032.
    United States Court of Appeals, Sixth Circuit.
    Case submitted on briefs without oral argument April 2, 1974.
    Decided May 3, 1974.
    David Wayne Burks, on brief, pro se.
    William W. Milligan, U. S. Atty., Arthur D. Jackson, Jr., Asst. U. S. Atty., Dayton, Ohio, on brief, for respondentappellee.
    Before EDWARDS, McCREE and MILLER, Circuit Judges.
   PER CURIAM.

Appellant in this case filed a pro se petition to vacate sentence under 28 U. S.C. § 2255 (1970). His petition was summarily denied and he appeals.

The gravamen of petitioner’s complaint concerns the sentence he received from the District Court after entering pleas of guilty to two separate indictments; one for possession of a sawed-off shotgun, and the other for bank robbery. On the first offense he was sentenced to 18 months as an adult offender, and on the bank robbery conviction he was sentenced under the Federal Youth Corrections Act, 18 U.S.C. §§ 5010(c), 5017(d) (1970). He asserts, and the government apparently concedes, that the Youth Corrections Act was made to run consecutively with the adult sentence.

Plainly, the relief which appellant seeks is not appropriate under Section 2255 under which a person convicted of crime in violation of the federal Constitution may seek vacation of his sentence. Petitioner’s attack upon the inconsistency of the two sentences could, however, appropriately be heard and determined under Rule 35 of the Federal Rules of Criminal Procedure.

Since we feel that his petition can and should be construed as a motion under Rule 35, we vacate the judgment of the District Court and remand for consideration by the District Court of whether a rehabilitative sentence under the Federal Youth Corrections Act can consistently be made to run consecutively with an 18-month adult prison sentence administered at the same time and for an offense which arose from the same occurrence which produced the Federal Youth Corrections Act sentence.

The court notes its displeasure with the utter inadequacy of the one-page brief filed by the United States Attorney.


author: McENTEE, Circuit Judge.

text:
    In re William Michael POST. United States of America, Appellant.
    No. 74-1077.
    United States Court of Appeals, First Circuit.
    Submitted April 4, 1974.
    Decided May 14, 1974.
    James N. Gabriel, U. S. Atty., and Robert B. Codings, Asst. U. S. Atty., Boston, Mass., on brief for appellant.
    Edward N. Hurley, Springfield, Mass., on brief for appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

On September 6, 1973, William Michael Post was sentenced to probation for three years after pleading guilty to violations of 18 U.S.C. §§ 472, 473 (1970). In a probation form executed the same day, Post agreed, inter alia, to the following:

“In order to insure compliance with the Conditions of Probation, you must not serve as an informer while on probation. . . .”

Post was subsequently called as a witness before the grand jury and asked questions concerning the source of certain counterfeit notes. Initially, he refused to answer on the basis of the privilege against self-incrimination, whereupon the government filed a motion to compel testimony. See 18 U.S.C. § 6003 (1970). Then, at a hearing on the motion, Post asserted a new ground for not testifying: namely, that if he did he would become an “informer” and thus violate the terms of his probation. The district court agreed with this argument and on that basis denied the motion to compel testimony.

The issue in this case is whether a person compelled to testify before the grand jury should be considered an “informer” within the meaning of Post’s probation conditions. After consideration of both the policy behind that particular condition and the relevant case law, we hold that he should not. Consequently, we reverse.

As the chief probation officer for the District of Massachusetts testified below, the purpose of the prohibition against serving as an informer is to help prevent probationers from deliberately associating with criminals. The latter prohibition is, of course, a frequent condition in probations. See ABA Standards Relating to Probation § 3.-2(c)(vii) (Approved Draft 1970). The chief probation officer noted:

“[T]he condition was intended to be of benefit to the probationer it was originally intended because law enforcement agencies had the practice of putting the heat on someone on probation and parole to force them to engage in criminal activities or to be associated with people engaged in criminal activity with the leverage of violation of probation if they didn’t.”

This policy was in no way served by the district court’s literal interpretation of the term “informer” so as to encompass persons testifying before grand juries. The grand jury sought to question Post only about counterfeiting activities occurring prior to his appearance. There is no suggestion in the record that the grand jury might request Post to consort thereafter with possible criminals in the role of a traditional informer. Moreover, we can find no other policy that might be served by permitting Post not to testify, particularly in light of the general policy that every citizen should respond to grand jury subpoenas and answer questions relevant to the investigation of a crime. See Branzburg v. Hayes, 408 U.S. 665, 682, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

The case of Gordon v. United States, 438 F.2d 858 (5th Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56 (1971), although arising in different circumstances, supports our conclusion here. There, the appellants similarly maintained “that anyone who participates in and furnishes information about a transaction is an informer.” Id. at 874. The Fifth Circuit rejected this contention, and, relying on cases concerning the “informer’s privilege,” fashioned the following definition :

“Generally speaking, therefore, an informer is an undisclosed person who confidentially volunteers material information of violations of the law to officers charged with enforcement of that law. [footnote omitted]. As we understand the term, persons who supply information only after being interviewed by police officers, or who give information as witnesses during the course of an investigation, are not informers. [footnote omitted].”

Id. at 875 (emphasis added). See also Whittington v. State, 8 Md.App. 676, 678 n. 1, 262 A.2d 75, 77 n. 1 (1970).

Reversed.