*1 32(c) (2), All shall Rule evidence be admitted which is Federal Rules of Civil objected Procedure, admissible under of the is the statutes unless waived States, taking deposition. at or under rules of evi- fact United The applied represent- dence in heretofore the courts of elected not be hearing deposition ed the United on suits at this make the States does not equity, Thomp- inapplicable. Thompson in rule or under rules evidence v. general son, applied jurisdic- 325, U.S.App.D.C. in F.2d courts tion of the state in which United 705. ” * * * States court held. judges courts, trial the federal Testimony depositions or of non-resi- great ad- questions of have latitude on prior dent tаken in case witnesses be- missibility Here the evi- of evidence. involving parties tween the same It dence was both material and relevant. substantially tradi- issues were the same properly was admitted. equi- tionally in law admissible both Judgment affirmed. ty courts. Toledo cases in the federal Cameron, Cir., Traction Co. v. 48, 59; 64, Equity Rules 137 F. Rule 1912; Mid-City Co. Bank & Trust v.
Reading Co., supra, page 321. clearly depositions admissible
Such
under California law.1 Kagan testimony of Mr. The regardless rules properly admitted deposi admissibility governing aof Ball, (Margaret Tem Eliza BALL C. G. When, in former action. taken in a tion etc., Administratrix, substituted porary Kagan deposition, reaffirmed his second Appel Ball, deceased), place of in C. G. his first answers in oath certain lant, part of became deposition, answers such depo given testimony his second in MACHINE COM VICTOR ADDING repre Batelli elected be Had sition. Appellee. PANY, deposition, would he second at this sented No. 15883. opportunity cross-ex full had have Kagan every Appeals issue covered States Court of amine United including Fifth Circuit. tes deposition, second damages relating timony Aug. covered 1956. deposition. former Kagan’s first Rehearing Sept. Denied therefore, was, offered as deposition with connection deposition taken part of a action, prior in connection deposition taken present action. any, objection, if relat Batelli’s propound questions form of
ed Kagan permitted in him which toed deposition the answers corporate in damages given prior dep relating in a However, one which under it osition. * * * * * * subject, may same is then deposition deemed 1. “A party any reading it; party the evidence but ap- at either in evidence read the court pears exclude the same if proceeding it in which stage or of the action taking thereof was taken, or other action or in respect unfair.” material Califor- § same proceeding between of Civil Procedure. nia Code priviеs interest successors their *2 Employer to against injunction
ment and steps neces- compel Employer to take “re- sary admitted to him the to secure of him” serve $8,260.98 attributable approved Retirement under 1947), as a (adopted in Pension Trust discharged having for been sult of his disability. medical typical The Pension Plan followed employer-contributing format for an bank, appointed trust. An Ohio Trustee Employ- the Board Directors of right ap- er with absolute to remove and point trustees, obliga- successor had the Employer contributions, tion to receive funds, pay- invest and disburse trust only upon ments of benefits couldbe made express direction of the Retirement Com- comprising again mittee three Employer’s named Board Di- “during pleasure rectors serve giving employer the Board” thus the right appoint- absolute of removal and ment of successor Committee members. And, course, Employer expressly agreed pay expenses all of the Trustee indemnify and Retirement fully them losses, all costs and provide pay for all services. he claimed to obtain what Ball’s efforts The was due him met with no success. Employer, three months after its formal discharging him “due the state letter health”, policy your down laid its (a) entitled to benefits because he discharged cause, e., he had been i. inefficiency Manager as Division Sales Dallas, territory, (b) for the Texas having gone any case, on a commission Henley, Tex., Jr., Dallas, B. William accepted position, basis when he he Henley, Tex., Harris, Dallas, & Anderson longer “participant” was no a counsel, appellant. pay Plan. The Trustee declined to or rule Foshee, Jackson, John N. Coke Clinton (and agreed on the matter because it is Coke, Dallas, Tex., appellee. & sound) position it could HUTCHESON, Judge, Before Chief express pay direction of Re- BROWN, and CAMERON and Circuit Committee. tirement The Retirement Judges. effect denied the claim be- cause his commission status excluded him Judge. BROWN, R. Circuit JOHN “participant.” sought And whеn he widow), (now his succeeded Ball determination a Court a rights of whatever might 33-year employee long-time, veteran he have under this detailed Register agreement Company (merged McCaskey between his and all sought by Victor), money judg- employees it, included under he was met inquiry (1) Employer’s disputing not mere academic defenses acceptance right employ- For while Ball’s one. contract any his Manager may position Sales Division benefits because ment the Plan to put (and (b) him in a commission (a) “participant” have not, status he was anot *3 him, guar- by discharged (not as claimed a minimum cause medi- had been for salary anty contеnding (2) more a disability), like commission that cal and incentives) may Employer personal bonus so that he not have li- no the had further subsequent made, “participant” ability as his been a to after were its contributions employment Employ- continued with the (3) and Retirement that the Trustee er, provision Plan contains no re- indispensable par- Committee both were working motely a of forfeiture “the Court, ties. To the District after this liability then serve attributable” convincingly which established a trial then accrued to him from contributions (and totally that Ball disabled became already by Employer up made Judge apparently which reason the change any оf from time such asserted thought adding discharged), one he was yet to salaried commission status. And had with no record foundation Ball that Retirement that the effect of the failed to both exhaust claim “Ruling.” Re- Committee’s a Whether so Trustee Committee and Retirement right to tirement Committee has the prema- relief that Court action wrong possibly make so decisive and so ture, complaint then “with- dismissed the a decision some Court reexami- without prejudice of out an in a to action Court presents question. nation a substantial jurisdiction against competent Trus- tee and Retirement Committee under pursuing inquiry, import it is this ” ** * Em- Retirement Trust emphasize ant to that doеs not in this ployer. added.) (Emphasis request a volve that a non-resident court only to is not (in Texas) The direction, trouble is super undertake deny altogether deny relief even vision, but management or control over the of opportunity the what, determine which, necessity, a Trust of must answer rights any, if had Ball (Ohio) alone the courts of the state scope permissible and nature maintained, Lewis, it where is Hobbs v. by Employer, 1954,197 352; Court review of action Tenn. 270 S.W.2d Kane Lewis, 1953, App.Div. Committee. Trustee and Retirement 282 125 because, 544; People This is so with the Trustee in N.Y.S.2d v. First National Bank, Committee com- residing Ohio and the Retirement 364 4 Ill. N.E.2d 108 posed really and lo- Illinois citizens A.L.R. 277. There is no сontrover there, geography sy simple makes between cated" Ball The Trustee. Moreover, impossible pay, -solely Trustee condition to meet. will not because goes pursue employee the the wherever Retirement has made not Employer indispensable pay can the certification simple expedient 9.3(b), of nam- defeat it under ment Section “If reason * * * ing composed disability citi- participant a new Committee shall or, make more zens of another state complex, employed to be company, cease of three different of citizens certify Committee shall fact to states. trustee, рarticipant and such disabled shall be entitled to from receive the trus question whether a Feder- is then equal amount juris- tee an equity liabil with admitted reserve al diversity ity Moreover, in a then attributable him.” over diction ultimately employee has, held brought if it that Ball’s claim is action correct, it will have no exercise, power assure that a effect the inter should accounting, solvency what, position nal if to determine is available forum stipulated employee Trust since it was rights have to any, precise sought Pension funds are, Plan re- amount under decisions have effect, earmarked as the by Court. li- “reserve examined quali- And as a him.” Internal Rеvenue Service ability attributable then Code, Employer, U. the fied under Section it is case in Trustee, 165; Code, 401, 26 required U.S. the S.C.A. § § who would gratuity C.A. is a mere §§ contributions further such Plan make beyond money may enterprise even be charitable “such amounts * * * scrutiny by barest its sole beneficiaries time time to (the employees) keep- completely partici- out which provide the benefits * ** ing philosophy purpose with the pants are entitled plans paying pro- addi- such as the means of plan.” this affected Nor is * * * “any compensation tional to the covered em- Plan vision affecting trust, ployees *4 way proceeding judicial afford substantial and advantages Employ- join immediate parties tax as it shall be monetary Trustee, company er tax ben- and substantial and and the See, applies employees. this efits to the Law of Fed- at all to It it committee.” Taxation, Mertens, 1942 particular eral Income Vol. clear that situation it seems 4, 25.69, 25.76, page 440, specify 25.70 to § §§ the maximum this intended to inch, background, and full principal historical required. function Its Supplement, possible 1954 Pocket 25.70 to 25.- §§ to other is to eliminate doubt as parties, pension A wisp 75. is no em- trust will of the as all affected such of the “ * * * meaning corporation, for ployees, Di- within the its Board of 165(a) rectors, is a [it] sеction established etc. employer primarily and an maintained pro Trust itself Pension And with the provide systematically payment for the agreement viding that, and the “This definitely determinable benefits to his construed, hereby be created shall trust employees period years, usually over a governed respects administered, in all and * * life, for after retirement State the laws under Ohio”, Regulations, (a) Tax Federal 39.165-1 § the view which holds a state (2). see, (a) (3), And 39.165-1 §§ 39.- plans pension contractual are enforceable 165-4(e). So much so is for the em- Ru employment, Wilson v. incidents of ployees statute, 165(a), Sec. App. 1934, Co., 48 dolph Ohio Wurlitzer quires that Pension “for Trust be 441; Sigman Rudolph 450, v. 194 N.E. employees” exclusive benefit of 4,11 [the] 1937, App. Co., N. 57 Ohio Wurlitzer corpus distribution of application with and income 878, E.2d relevance discussing of such trust limited to “such the nature of the Texas cases Employer’s or their beneficiaries” with an review of the absolute Court making prohibition plans con decisions use or actions diversion of (no provision “purposes exists in this clusive such such funds to other than Butler, case), Magnolia Co. v. Petroleum for the exclusive benefit of em- [the] 258, Tex.Civ.App., 86 dis S.W.2d error ployees or their beneficiaries”. It must missed; Bell v. Webster Southwestern non-discriminatory employees, as to Co., Telephone Tеx.Civ.App., 153 S.W.2d Regulations, 39.165-l(a), 39.165-4, §§ Magnolia 498, refused; Aston v. error diversions, 39.165-2; and forbid § Co., Tex.Civ.App., 241 Petroleum S.W.2d Employer’s contributions are in no refused; 306, Spiner v. error Western gift they for deductible, are sense Telegraph Co., “ Tex.Civ.App., 73 Union *** only to the they extent that strongly 566, refused, so S.W.2d error ordinary necessary expenses Employer, pressed defeat * * * carrying on [the] trade jurisdiction parties, want for of essential compensation and are business again adversary role but its as an re actually personal * * services rendered futing existence of *” together with all oth- merits, highly on the seems doubtful. compensation paid to employee er And idеa Pension “a reasonable that a ex- constitutes Trust allowance for pressly approved, compensation one, as this the services actual-
174 ** Regulations, decision, ly § tee’s rendered this enables see, g., independ- (p)-l-(b), Farnsworth e. 39.23 determine whether this Cir., largely Commissioner, F. 5 203 ent decision or & one dominated Co. v. surely be serious- wishes 2d 490. “It cannot or considerations. pension ly disputed such [a doing District And, Federal this agreement] part of com- exercising jurisdiction Court, conferred pany part consideration forms a diversity), (here Congressional Act * * view, performed *. work equity, power court of a has full pension appеar promised would thus Chancery inherent for “Jurisdiction ‘wages’ part to be as much a original, comprehending now almost money paid rendi- him at time disagreement, exigency every of human Co. v. Inland Steel tion of his services.” adequate rem- not an there is for which Cir., B., 12 L. F.2d N. R. 7 170 Berry, edy law”, 8 How. at Williamson 240, U.S. certiorari denied A.L.R.2d Guaranty 1187; 536, 1170, 12 L.Ed. 93 L.Ed. 69 S.Ct. York, U.S. New York v. ofCo. Trust 99, 106, inaugurated Trust Since the Pension L.Ed. S.Ct. *5 was, qualify 2085; parte Peterson, 2084, and had Ex 253 U.S. statute be, 919, 300, 312, 313, 543, sole ex- for the and 64 established 40 L.Ed. S.Ct. employees, 925, again, of the covered clusive benefit this demonstrates and once say Employer ageless, the dynamic, capacity is that unrealistic the timeless with it respond peculiar ceases connection equity to have of to the merely advancing changing been because contributions have needs of civilization: “ * * * payor It, of the intended increasing made. as the complexities in the compensation, relations, equitable additional and covered of modern business employees, necessarily steadily and exclusive as the ultimate have and remedies beneficiaries, parties continue to be the expanded, been and no inflexible has rule Plan, directly When most interested. permitted been to circumscribe them. effectually terms, ad- is be its said, equity As been well has has con- by Committee they of ministered trived its remedies ‘so that shall cor- designated appointed and alone the respond primary right both to the subject Employer to its injured wrong and absolute party, and to the which replacement, right violated,' moval it does no violence and has been that and ‘has require purpose to always Plan and its preserved elements flexibil- of having pow- Employer ity this wide expansiveness, and so that new ones appointees may invented, make them er over such avail- modified, be or old ones parties over whom the can requirements every able as order to meet the of power to ad- case, satisfy then exercise traditional pro- and the needs of a judicate This does merits. not sub- gressive condition, social which new ject personal liability rights to a primary constantly duties are and (or beyond its contributions has those it arising, wrongs and new kinds of are long agreed clearly to make so constantly Pom.Eq.Jur. committed.’ § effective). does it Nor assume Chicago, remains 111.” R. Union Pacific Co. v. replacement Co., right 564, 601, 600, and P. R. 163 U.S. of removal R. I. & degrades 265, 16 41 L.Ed. S.Ct. Committee 278. “ * ** always selfish of to mere tool Chancellor has However, opportunity always had, have, Employer. pow- must certain and, action, occur the Committee possessed er freedom оf for this Employer’s law, adapting earlier sim- of paraphrasing the courts of the doc- before, may year he of a have which administers. done trines letter He can ilar ex- why here, relations, those doctrines to new an reason tend affords additional so reading shape remedies to equity rea- new achieved circum- is stances, if requirement relations into the Plan. In- and circum- sonable propriety principles come within the the Commit- stances quiring into
175
record,
clearly
analo-
of law
reflected in the
equity,
a court
where
give Employer
party in interest
powerless to
gous
is the real
would
cases
dispose
no limit
can
there
that the Court below
In fact
relief.
specific
kinds
with the
issues
the case
forms
various
F.R.C.P.,
adopted
19,
grant,
Rules 17 and
before it. Cf.
remedy
he
which
obligation,
Barrow,
right
28
17
U.S.C.A.
v.
and Shields
conditions
novel
arising
129,
constantly
from the How.
tify actual and fact an in- that ground junction participant on the be entitled to that shall had disabled pursued rights.” amount the Trustee an not and lawful receive equal at- to the reserve then to him.’ tributable firmly ours, principles they already just too besides in attack were dislodged upon jurisdiction. in embedded the law to feeling, compulsion however of a I judgment think the should be af- be, sound, but should that the defendant respectfully firmed. I dissent from its not, plaintiff’s claim. sympathy with reversal. contrary, firm conclu- On I am Rehearing HUTCHESON, denied: plaintiff’s de- sion case that whole Judge, dissenting. Chief action The law fendant was unfounded. was, nothing had done because defendant damages. subject it to a suit for equitable was, under the action because facts,
undisputed con- defendant had no not, trol, ought to, indeed it could actions decisions or
exert control over the or the
of the Trust, Committee my opinion, it would be an and in Tyranny if court act Judicial UNITED STATES of America compel it to so act. would undertake to providing, perhaps The District ALU, John Defendant-Appellant. unnecessarily abundance out No. 11772. caution, judgment with- that his prejudice appropriate action out against United Appeals States Court of cor- and the Trust Third Circuit. rectly pointеd way plaintiff already to the Argued March 1956. pointed out the Trust Instrument July 17, Decided rights her secure a determination of respect pension pursu- fund.
ing yoke way, plaintiff’s that will be as
easy, light, as of an her burden as that
ordinary plaintiff required who is to ob- jurisdiction person
tain over the of a find
defendant. If she can the defend- jurisdiction prefers,
ants in the she can obtain service sufficient substituted there, upon them to sue them well and good. go jurisdiction she If must they reside,
where this is no than more
others have had and will have do. I statute,
know of no rule or decision which Court, Appellate or for
invests an that any court, power acquire
matter forcing person by
jurisdiction over a
defendant, theory that he has person, that under threat
control so, contempt if does not he do to com- person
pel to come in. Scripture when We are told guests would not come invited ban- banquet quet, the Lord of ordered *10 go highways out into the his servant guests compel byways and to come
and in, that was under another civiliza- a different constitution
tion with