text:
    TUTSON v. HOLLAND et al.
    No. 5049.
    Court of Appeals of District of Columbia.
    Argued March 6, 1931.
    Decided May 4, 1931.
    Motion for Rehearing Denied May 23, 1931.
    Elwood G. Hubert, of Washington, D. C., for appellant.
    C. H. Houston, of Washington, D. C., for appellees.
    Before MARTIN, Chief. Justice, and ROBB,- HITZ, and GRONER, Associate Justices.
   GRONER, Associate Justice.

This is an appeal from a decree of the Supreme Court of the District dismissing plaintiff’s bills of complaint. The original bill sought an accounting from defendant Joseph F. Holland as to his management of certain of plaintiff’s real estate situated in the city of Washington. The supplemental bill prayed that a sale of the same property under a deed of trust should be declared fraudulent and set aside. We shall call the parties plaintiff and defehdant.

Only three points are urged in this court. The first relates to the admission in evidence, over plaintiff’s objection, of certain “confidential information”; the second to the refusal of th-e special master, to whom the ease was referred for an accounting and report, to postpone the hearings; and the third to the acceptance by'the court of the master’s report and the dismissal of the bill. A brief statement of the facts will be sufficient for a discussion of these questions.

Plaintiff owned certain real estate in the city of Washington which was heavily incumbered. Those incumbrances were about to mature, and plaintiff was without means either of discharging thorn by payment, or of secuiing new loans to replace them. She negotiated with defendant Holland with the view to having him refinance the property for her. At defendant’s suggestion, and the more readily to accomplish the refinancing, plaintiff executed a deed of the property to defendant. The deed was placed in escrow with plaintiff’s attorney/ and later, on instructions from plaintiff, delivered to defendant for recordation. Defendant then executed a deed back to plaintiff, and hi turn placed it in escrow with plaintiff’s attorney. (What subsequently happened to this deed is not shown in the record.) The agreement between the parties was that defendant should collect the rents from the property, pay certain fees, taxes, and expenses, including certain monthly installments on the mortgage, provide for the upkeep and management of the property, and render the plaintiff’s attorney monthly accounts of Ms transactions. Defendant was to receive 5 per cent, of the rents collected, and an “additional sum” for his services in refinancing and managing the property. The parties agreed that the contract should remain in force until the defendant had been paid in full his commissions, interest, and moneys advanced in connection with the property, and he was then to r’eeon-vey the property to plaintiff. It was further agreed that in the event plaintiff failed without just cause to fulfill her part of the contract the conveyance was to be considered absolute.

Plaintiff in her bills alleges that defendant refused to make an accounting despite repeated demands on him; that he increased the encumbrances on the property, and failed to account for the surplus; and that, in violation of the contract, he refused to reeon-vey the property to her, but instead recorded the deed from plaintiff to himself, and executed an additional mortgage covering certain advances for account of the property wMch he claims he made and wMch plaintiff denies, and permitted a foreclosure under one of the refinanced mortgages, in which sale he participated through a dummy, and thus acquired the property in total disregard of plaintiff’s rights. Neal, the alleged dummy-purchaser, was made an additional party by the supplemental bill. An injunction pen-dente lite was granted by the lower court. Defendant himself denied all of the material allegations of the bill, and charged that he had rendered full and regular accountings, that the sale of the property was in all respects in order,.and that defendant had no part or parcel with Neal in Ms purchase, and Neal filed an answer setting up that he was a bona fide purchaser for value.

By consent of parties, the cause, which had been referred to a special master on the original bill, was again referred to the master to take testimony “concerning all the matters and things embraced in the pleadings, including the original and supplemental bills and answers” and to report to the court his findings and recommendations. The special master, after full hearings covering an unnecessarily long period of time, filed Ms report in wMch he found plaintiff’s contentions entirely without merit. To this report, no exceptions were filed, and the same was, some time after the expiration of the time witMn which exceptions might be filed, in all respects ratified and approved by the court, and this we are asked to set aside and annul.

Obviously, we tMnk, we ought not to substitute our views for those of the master and the lower court as to matters of fact which have been submitted to and passed upon by both. As was said by Mr. Justice Field, speaking for the Supreme Court in Kimberly v. Arms, 129 U. S. 512, 524, 9 S. Ct. 355, 359, 32 L. Ed. 764: “A reference, by consent of parties, of an entire case .for the determination of all its issues, though not strictly a submission of the controversy to arbitration — a proceeding which is governed by special rules — is a submission of the eon- » troversy to a tribunal of the parties’ own selection, to be governed in its conduct by the ordinary rules applicable to the administration of justice in tribunals established by law. Its findings, like those of an independent tribunal, are to be taken as presumptively correct, subject, indeed, to be reviewed, under the reservation contained in the consent and order of the court, when there has been manifest error in the consideration given to the evidence, or in the application of the law, but not otherwise.” In this ease, we have examined the record, and we ' are unable to say that there appears to be manifest error in the consideration of the evidence or in the application of the law. See Pensacola Shipbuilding Co. v. Southern Wood Preserving Co. (C. C. A. 4th) 45 F. (2d) 164, and eases there cited. And we are further strengthened in this view by the failure of the plaintiff to take any exceptions to the master’s report. The rule in this respect is that the report of the master to which no exception has been taken, and which does not disclose error on its face, cannot be excepted to, in whole or in part, in an appellate court, Burns v. Rosenstein, 135 U. S. 449, 455, 10 S. Ct. 817, 34 L. Ed. 193, and we find nothing in the record to take the present ease out of this general rule.

We pass, therefore, to the only other two questions for decision. The first of these, as we have already seen, relates to the admission in evidence, over plaintiff’s objection, of the testimony of a certain attorney at law who had represented plaintiff in the negotiations leading to the making of the contract out of which the suit grows. The attorney’s name was Smith, and when he was first placed on the stand by the defendant at the hearing before the master, objection was made to several questions which were asked on the ground that the answers would involve disclosure of confidential communications. He was then withdrawn from the stand, and the question of the admissibility of his evidence was argued before the master, and the objection overruled, and he was permitted to testify. We have carefully examined his testimony to ascertain if any of it came within the rule protecting communications between client and attorney. Neither in the assignments of error nor in the brief is the objectionable testimony specified, but, in spite of this, we have examined for ourselves the record to determine if it was to be found. All that appears is that the witness, as counsel for plaintiff, received several communications from defendant which he transmitted to his client. This we think could properly be shown. The statements made by his client which he was asked to repeat were all statements made in the presence of defendant at a conference in which the three participated. In these circumstances, the statements were not privileged, nor were they within the scope of confidential communications which courts protect. The rule of privileged communications arose in order that a party might with safety completely inform his attorney as to the matters in which he is employed to the end that the attorney might act with full understanding of them. The limits of the rule, however, are well defined, and as its tendency is to stifle a full disclosure of the truth, courts have been careful to confine it within its legitimate scope, and so it has been held that the rule does not apply to the discovery of facts within the knowledge of an attorney which were not communicated by ai client, though he became acquainted with such facts while engaged as attorney for the client. Crosby v. Berger, 11 Paige (N. Y.) 377, 42 Am. Dec. 117. And in that case it was said that an attorney is bound its pro.duee letters communicated to him fro™ collateral quarters, and to answer as to matters of fact as distinguishable from matters communicated to him by his client in professional confidence. And in York v. U. S. (C. C. A. 8th) 224 F. 88, 91, it was held that the presence of a third party, particularly if he is an opposing party, indicates that the communication is not confidential or privileged. See also Greenleaf on Evidence (16th Ed.) § 246. We must therefore conclude that this point is without merit.

This leaves only for consideration the charge that the special master proceeded to a hearing in July,, 1928, in spite of the fact that appellant was without counsel or witnesses, and desired a postponement until counsel and witnesses could be obtained. The same charge was raised and examined by the court below and determined against plaintiff, and the affidavit of the special master, which the court below considered, shows that in ample time before the hearing notice was sent to plaintiff’s attorney of record of the time and place of hearing. At the hearing, plaintiff appeared in proper person, but without counsel. She made no objection to the hearing proceeding, and participated in it, and herself cross-examined the witnesses, and was afforded an opportunity to present a statement in relation to the account of rentá and profits previously furnished her by defendant which she expressed a desire to file but never did, but on the contrary advised the master that she would neither submit the statement nor any other evidence. She had previously testified in her own behalf, at which time she was fully examined by her own counsel, and the master’s affidavit shows that at the bearing in question the testimony related principally to the foreclosure of the property and’ its purchase by Neal, and to the expenses incident to the defense of the suit. We have examined the evidence ourselves to determine whether plaintiff was prejudiced by the refusal of the master to continue the hearing, and we are unable to say that this is the case. It would have been better, we think, in view of the fact that plaintiff was a woman, more or less unfamiliar with court procedure, if the hearing had been postponed, but it should not be lost sight of that after the hearing she was afforded the opportunity by the master to introduce any further evidence which she desired to do-, and doubtless also might have recalled the witnesses who were examined at the previous hearing for cross-examination. She refused to adopt this course, and she does not even now specify any evidence which she would have offered which could have affected the issue, or any evidence admitted which should not have been, so that even if we should hold that there was an abuse of discretion on the part of the master in refusing to postpone the hearing, we have nothing before us from which to reach a conclusion that any other or different result would be possible if the case should be sent back so as to provide the opportunity which, as we have seen, she had already refused before final decree.

In this aspect of the ease, and bearing in mind the principle that the real end to be sought in all litigation is substantial justice, and that to this end even appellate courts should ignore technical rules which may prevent its accomplishment, we are constrained nevertheless to reach the conclusion that plaintiff’s bill and supplemental bill are without merit, and that the action of the lower court in dismissing them was right, and should be and is affirmed without costs.

Affirmed.

HITZ, Associate Justice, took no part in the consideration and decision of this ease.


source: Caselaw Access Project

author: ROBB, Associate Justice.

license: Public Domain

text:
    CONSUMERS’ ICE CO. v. BURNET, Commissioner of Internal Revenue.
    No. 4940.
    Court of Appeals of District of Columbia.
    Argued April 8, 1931.
    Decided May 4, 1931.
    Jacob S. Seidman, of New York City, for appellant.
    Sewall Key, C. M. Charest, Shelby S. Faulkner, J. Louis Monarch, all of Washington, D. C., Morton Poe Fisher, of Baltimore, Md., and Morton K. Rothschild, of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
   ROBB, Associate Justice.

Appeal from a decision of the Board of Tax Appeals involving income and profit taxes for the fiscal years ending November 30, 1920, and November 30, 1921. 11 B. T. A. 144.

The Consumers’ lee Company (a Michigan corporation) was organized in April, 1894, and issued capital stock for the assets of five companies then engaged in the ice business in Grand Rapids, Mich. The Board found that in 1894 appellant “acquired certain riparian rights by issuing therefor $34,-200 par value of its stock. Such riparian rights were on Reid’s Lake and Fisk’s Lake, three and one-half miles from Grand Rapids, Michigan. In 1894 these lakes were the only points to which there were hard roads by which ice could readily be transported to that city. The total frontage around Reid’s Lake was between four and five miles and around Fisk’s Lake about a mile and a half. In 1894 much of the frontage was swampy and much too hjgh for harvesting ice. The commercially advantageous parts of the frontage were owned by six companies engaged in competition in the ice business in Grand Rapids. Five of the companies consolidated to form the petitioner (appellant) in 1894, appraisals were made of the property of each, and capital stock in the par value of $34,200 was issued for the riparian rights acquired.”

During the same year, the company acquired riparian rights from J. Paul for $2,-000 and from D. C. Underwood for $2,500. The lands of Underwood and Paul were from 20 to 40 feet above the lake, and were of small value, while “all of the lands appurtenant to the riparian rights that had been acquired by the Consumers lee Company at organization were on a level with the lake.” The reason for acquiring the riparian rights from Underwood and Paul was to obviate the possible charge of trespass for cutting ice on the lake “which other parties might think belonged to them.” In other words, the purchases from Underwood and Paul were purely defensive in character.

The Board ruled that there was no evidence “as to the value of the riparian rights as of the time the petitioner (appellant) acquired them nor of the value of the stock issued therefor.” While the Board apparently recognized that these riparian rights possessed very substantial value, and that without them the company could not have done business at all,, nevertheless it refused to place any value whatever upon them, thus eliminating from invested capital the value of these acquired rights. In our view the Board erred.

During the same year, the Underwood and Paul rights were secured for a cash payment of $4,500. This amount the Board has allowed. The evidence is convincing that riparian rights (on the level of the lakes) acquired on the organization of the company were of far greater value than those acquired from Underwood and Paul, and yet the Board made allowance in full for the latter and allowed nothing for the former. The good faith of appellant is not questioned. The Board was satisfied that capital stock in the par value of $34,200 was issued for the riparian rights acquired. It was also satisfied that $4,500 eash was paid for rights of far less value. In our view, there was sufficient evidence to justify and require the Board to place a value of at least $4,500 upon the riparian rights acquired for which stock was issued.

It is assigned as error that a witness for appellant was not permitted to testify as to the value of the property “conveyed to the Consumers lee Company by the South Grand Rapids Ice Company in 1894.” The ground of the objection was that the witness “has not been qualified and is incompetent to express-an opinion with respect to the value.” There was no evidence that the witness was qualified to testify on the question of value (Raub v. Carpenter, 17 App. D. C. 505, 513), and hence the ruling was correct.

Appellant further contends that the assessment and collection of deficiencies for the fiscal years 1920 and 1921 were barred by the statute of limitations. The deficiency letter was mailed on February 11, 1926. Two waivers, dated January 4; 1926, for the “year 1920” and the “year 1921,” were signed by D. H. Blair (Commissioner), with the letter “C” underneath, and by appellant. The Board found as a fact that they were executed on or about the date they bore. This was sufficient, for whether they were executed upon that date or later is of no significance. Stange v. United States, 282 U. S. 270, 51 S. Ct. 145, 75 L. Ed. 335; Aiken v. Burnet, 282 U. S. 277, 51 S. Ct. 148, 75 L. Ed. 339; Brown & Sons Co. v. Burnet, 282 U. S. 283, 51 S. Ct. 140, 75 L. Ed. 343.

Because of the failure of'the Board to place any value upon the riparian rights, the decision must be reversed, and, as the value which we find as amply proved is not the full amount to which appellant is justly entitled to be allowed, we think that in fairness the case should be remanded, with instructions to allow appellant, if it shall be so advised, to supplement its proof in the respects mentioned, so that the value of the stock issued, or independently the value of tne riparian rights, may be accurately shown.

Reversed.


author: HITZ, Associate Justice.

text:
    CHARLESTON & W. C. RY. CO. v. BURNET, Com’r of Internal Revenue.
    No. 5074.
    Court of Appeals of District of Columbia.
    Argued April 8, 1931.
    Decided May 4, 1931.

      Robert R. Faulkner, of Washington, D. C., for appellant.
    Sewall Key, C. M. Charest, Harvey R. Gamble, and Paul D. Miller, all of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, and ROBB,, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
   HITZ, Associate Justice.

This is an appeal from a decision of the United States Board of Tax Appeals pursuant to the provisions of sections 1001, 1002, and 1003-' of the Revenue Act of 1926, c. 27, 44 Stat. 9, 109, 110 (26 USCA § 1224 and note and §§ 1225, 1226).

Appellant is a steam railroad corporation engaged in intra and interstate commerce, with its general offices in Columbia, S. C., under the laws of which state it is incorporated.

The Board of Tax Appeals sustained a claim of the Commissioner of Internal Revenue for $55.13 additional ineome tax liability of petitioner for the year 1924.

Prior to, January 1, 1922, certain employees of the company earned the sum of $441.05 in wages, which were not collected from the company.

That amount was carried on its books to be paid when called for, or when those entitled were located, and, as wages, deducted in its income tax return for the calendar year 1921.

Remaining unclaimed until December, 1924, an entry was then made on the books crediting “Profit and Loss” with $441.05 on account of wages, then unpaid, earned by employees prior to January 1, 1922.

The change of this sum from one account to the other after three years was perhaps made in recognition ■ of the improbability that the fund would ever be claimed and of the Interstate Commerce Commission’s ruling in approval of such accounting.

Though the company intended paying proper claims on the fund if and when sought, the effect of the bookkeeping was to make available for general uses the particular moneys impressed in 1921 with the particular obligation and consequent right to deduction.

It thus became as much a part of the gross revenue in 1924 as though paid in that year for carriage charges.

Being a part of the gross without being so treated, it became a part of the net on which the tax levied became due.

Of course, if any part of those wages due should be claimed an'd paid at any subsequent time, deduction to that extent could thereafter properly be made.

• We think the precise question has just been decided by the Circuit Court of Appeals for the Seventh Circuit in Chicago, Rock Island & Pacific Railway Co. v. Commissioner of Internal Revenue, 47 F.(2d) 990, October Term, 1930, where the decision went against the petitioner and affirmed the tax.

We agree with the conclusions of that court in that case and its reasoning in reaching them.

None of the other cases cited are so similar to the one before us.

The decision of the Board of Tax Appeals being right is affirmed.

Affirmed.


text:
    ELLIS v. BURNET, Commissioner of Internal Revenue.
    No. 5102.
    Court of Appeals of District of Columbia.
    Argued April 9, 1931.
    Decided May 4, 1931.

      E. L. Bono, of Washington, D. C., for appellant.
    Sewall Key, R. L. Williams, J. H. Me-Evers, and S. Dee Hanson, all of Washington, D. C., for appellee.
    Before MARTIN,' Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRO-NER, Associate Justices.
   HITZ, Associate Justice.

This'is an appeal from a decision of tbe Board .of Tax Appeals redetermining a deficiency in tax due from the petitioner for the year 1923 amounting to $745.37.

Petitioner, Wade H. Ellis, is a member of the American Bar Association, and while in attendance on its sessions in 1922, was appointed a member of a special committee to mate a study and report on criminal procedure and law enforcement. ' •

In that capacity he expended $2,745.13 expenses on a trip to Europe with other committeemen, studying the subject especially in England and France, as compared with the United States.

He claimed deduction of this amount under section 214 (a) of the Revenue Act of 1921 (42 Stat. 239), which provides: “That in computing net income there shall he allowed as deductions: (1) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business. * * * ”■

The Commissioner disallowed the item, as did the Board of Tax Appeals, and with their determination we agree.

The petitioner’s trip to Europe had ño tendency to increase his professional income, which is apparently contemplated by the statute, unless we consider the too remote effect on his professional prestige of such recognition and activity.

The item, if allowable at all, would have been so only to the Bar Association, if the association had paid the expenses of the journey instead of the petitioner.

The decision of the Board of Tax Appeals, being without error, is affirmed.

Affirmed.

Mr. Justice GRONER took no part in the consideration or decision of this ease.


author: ALSCHULER, Circuit Judge.

text:
    COLLENGER v. UNITED STATES, and six other cases.
    Nos. 4353, 4395-4400.
    Circuit Court of Appeals, Seventh Circuit.
    May 27, 1931.
    Rehearing Denied July 8, 1931.
    James J. Clark and William J. MeAleer, both of Hammond, Ind. (MeAleer, Dorsey, Clark & Travis, of Hammond, Ind., of counsel), for appellants Collenger and An-tonean.
    Sims, Godman, Stransky & Brewer and Tinsman & Blocki, all of Chicago, 111. (Elwood G. Goodman, Gale Blocki, and Harry E. Heeren, all of Chicago, 111., of counsel), for appellants Hale and Regan.
    George Norman Murdock, of Chicago, 111., for appellant Zarkovieh.
    G. B. Tinkham and Timothy P. Gal-vin) both of Hammond, Ind. (Richard P. Tinkham, Edmond J. Leeney, and Tinkham & Galvin, all of Hammond, Ind., of counsel), for appellants Hale, Regan, Zarkovieh, Ramey, and D’Angelo.
    Oliver M. Loomis and George L. Rulison, both of South Bend, Ind., and William B. Duff, of LaGramge, Ind., for the United States.
    Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
   ALSCHULER, Circuit Judge.

Of forty-six named in the indictment as “conspirators,” forty-one were indicted, twenty-three of whom were tried together. As to four of these, the court directed acquittal, and the jury acquitted four. The other fifteen were found guilty,- and sentenced to serve various terms of imprisonment and to pay fines. Seven of the fifteen bring these appeals.

The single count of the indictment charged the alleged conspirators and others unknown with having conspired to violate the National Prohibition Act, setting forth a number of overt acts.

The appellants are Hale, mayor of East Chicago, Ind., Regan, chief of police of that city, appointed by Hale, Zarkovieh and Ram-ey, police officers under Regan, and Collen-ger, D’Angelo, and Antonean, who held no official place.

The court, in passing sentence, said: “If the matter was presented in a little different manner with reference to possibly one or two defendants there might be a different question involved. I do not feel that I am called upon in this ease to discharge Philip Col-lenger (counsel seem to agree that the second person to whom the court referred was D’Angelo), tmd I am not urged to grant a new trial— * * * no£ even asked to. * * * I am saying if I were asked to grant him a new trial it would be a different question for me to decide, but I am only asked to grant him a stay, or an arrest of judgment, which discharges him, and I do not feel that he ought to be discharged. He might be entitled to another trial before another jury. If he wants it, now is the time for him' to ask for it.”

Collenger and D’Angelo moved for arrest of judgment and discharge, but not for new trial. As to D’Angelo, the government in its brief says, “Appellee is not in a position to insist that the evidence is sufficient”; and, as to Collenger, the brief says, “Since there is nothing in the record to show that these statements of Chandler were made in furtherance of the object of the conspiracy, and since this was the only evidence connecting Col-lenger with the conspiracy, it is not insisted by appellee that the evidence is sufficient to sustain the verdict.”

Our independent examination of the record convinces us that what the court said, directly as to Collenger and inferentially as to D’Angelo, and what counsel f©r the government stated in its brief concerning the evidence against them, is well justified, and that the evidence was not sufficient to sustain the verdict against them. They now insist’ that they be ordered discharged because a verdict for their acquittal should have been directed by the court, and that, had this been done, they could not again be tried on the same charge. The government, while not opposing reversal of the judgments against them, insists that this court has no right to discharge them, but only to remand their cases for another trial, and cites Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879. This decision sustains the government’s contention, and binds us, in case of reversal, to direct-a new trial. A different rule has been applied where jury has been waived. Routzahn v. Mason, 13 F.(2d) 702 (C. C. A. 6); International Harvester Co. v. National Surety Co., 44 F.(2d) 746 (C. C. A. 7). And so, on reversal of the judgment against D’Angelo and' Collenger, remandment for new trial must follow, regardless of whether motion for new trial was interposed. The error alleged) and sustained by the record, is the denial of these appellants’ motion for a directed verdiet. Motion for new trial is not essential to avail of this error. Even had there been such motion, it is well settled that error may not be assigned upon the court’s ruling thereon. Hume v. Bowie, 148 U. S. 245, 13 S. Ct. 582, 37 L. Ed. 438; Arkansas Valley Land & Cattle Co. v. Mann, 130 U. S. 69, 9 S. Ct. 458, 32 L. Ed. 854.

Respecting appellant Antonean, our search of the record fails to reveal competent evidence of his guilt any more than in the ease of Collenger and D’Angelo. The government’s brief fairly states that “the two witnesses upon whose testimony the verdict against Antonean depends were Pappas and Komeroski.” Pappas testified: “I live at Indiana Harbor. I have visited the Balkan Hotel many times. It is way down below on Guthrie Street. John Antonean runs that place. He is right here in the court room. It has got 6 or 7 rooms upstairs and a bar downstairs. Nothing else. John Antonean runs it. There is a bar downstairs and girls upstairs, sporting place. I bought intoxicating liquor there plenty of times from John, the defendant there. It was whiskey and moonshine. He has got different kinds of whiskey. I forget how many times I visited that place since 1928. I spent plenty of money. I have been there since 1919. If I have money to spend, I drop in there. It has been the same kind of place since that date.”

This sufficiently shows that Antonean was running a place where he unlawfully sold whisky in one part and conducted a house of prostitution in another, but does not of itself show conspiracy.

Komeroski testified he was a physician, and that for some months prior to late January, 1928, he called about once a week at the Balkan Hotel to examine the girls there. Questioned as to a conversation with Anton-ean at the Balkan Hotel he said: “I had a conversation with him at that time, in the later part of January, 1928. I came on that day and I was told by a man they called ‘John’ (I didn’t know his last name at that time) that I couldn’t examine the girls. I know now his last name was John Antonean. I told him 1 didn’t know why I couldn’t, because I used to examine them every week and I knew the girls were there, and he told me that he had nothing to do about that, he was merely .working there. I said That seems funny, you had me come here before,’ and he said, ‘Well, it is being taken care of by the police department,’ and that he had nothing to do with it, and he was just working there. He mentioned the Chief being m charge of it. That is all he said and I left the place. It was not John Antonean who called me there at that time.

The only part of Komeroski’s testimony that even hints at conspiracy is that Antonean told him, in effect, that the examination of the girls was being taken care of by the police department, that the chief was in charge of it. This might tend to indicate that there was a conspiracy between Antonean. and the police department respecting the conduct of the house of prostitution, although even the conclusion of conspiracy respecting this field of endeavor may be questionable. .It is common knowledge that such examinations are sometimes required to be made in the interest of public health, and there is no further evidence in the record to indicate that there was any corrupt agreement or understanding between the chief and Antonean on even this subject. Besides, the keeping of bawdy houses is not a federal offense, and a corrupt conspiracy with referenee to it would not be indictable in a federal eour^-

While, as we stated in Allen et al. v. United States, 4 F.(2d) 688, there is more or less of practical relation between prostitution and drinking, yet, where the only evidence against an alleged conspirator to violate the liquor law is that he kept a place where liquor was sold, and that he admitted having some sort of an arrangement with the “police” or the “chief” with respect to the periodical physical examination of girls engaged in prostitution in a portion of his place, we are of the belief that the proof lacks the essential element of establishing the particular conspiracy charged, and that therefore the evidence against Antonean is insuffieient to sustain the verdict in his ease,

As to the other appellants it is not seriously contended that the record is so far wanting in evidence of their guilt as to have required direction by the court of a verdict in their favor. But various errors are assigned which it is contended necessitate reversal of the judgments against them,

Error is assigned on the admission in evi-Jenee of statements of different ones of the alleged conspirators to government agents who testified thereto, and the failure "of the courj; f0 limit such evidence to the particular defendants who made the statements. Spe-ejaj ^genf Lease testified for the govem-meld. £kat shortly before the indictment was returned defendant Orta signed a statement 0ffered evidenee. The statement is in the form of an affldavit setting, forth that Orta &r ^ beeil rietor o£ a p]ace in Indialla Harbor; that in July, 1928, he aecompanied Mendez, an alleged conspirator named but not indicted, to his place of business, where Orta was then told that he (Orta) would be required to purchase his liquor from Mendez, and that it would cost $100 for protection from the police; that he paid Mendez $100 cash, and afterwards $50, and for several months bought liquor from Mendez, but, on discontinuing such purehases, was arrested by the police,

Upon offering this statement in evidence was objected that it was incompetent as to any defendant except Orta. The court ruled that would ]3e admitted, and the jury was. instructed not to consider it as evidence against any other defendant unless they found that the statement was made at a tjm0 when the conspiracy existed as charged in the indictment, and at a time when the defendant making the statement ,was one of tlle conspirators. It was then further charged that, in order tó be admissible against the others, it would have to appear that it was made in furtherance of the conspiracy. The court said: “That might be the law. I am not clear on that. * * * I will give that instruction now. I may change it if I find it is not the law. I will accept your suggestion. Let that instruction go to the jury also. With that instruetion the exhibit may be admitted and read to the jury.”

The exhibit was then read to the jury, and thereupon counsel for defendants stated to the court that it then appeared the statement was but a narration of past events, and moved that the court then instruct the jury that it was no evidence against any defendant except Orta. The court said: “The request is denied.” Exception was taken by defendants.

It is elementary that a statement of a conspirator, in order to bind the eoeonspirator, must be a statement not made in the formation of the conspiracy, but after the conspiracy is formed, and in furtherance of its objects. It is then admissible against all upon the theory that each then speaks and acts for all, if speaking or acting in furtherance of the objects of the conspiracy. It is too plain for discussion that this statement to the government agent, far from furthering the conspiracy, was made after the conspiracy had ended, and with the purpose of exposing it and penalizing the conspirators, and was hearsay as to all the defendants except Orta. When, therefore, the statement had been received in evidence, and the court’s attention was then called to it by the motion to limit, it was the duty .of the court then and there unequivocally to limit its application strictly to the defendant who made the statement. Where there are many defendants on trial charged with a general conspiracy, each is subjected to the hazard of being injuriously affected by alleged acts or statements of some other defendants, incompetent as to all but the ones making the statements. In such situations courts should be ever alert to minimize, so far as possible, the hazard to defendants whom the law does not bind by such statements.

. When this statement appeared in evidence—inadmissible as to all defendants except Orta, and so pregnant with harm to others on trial—on the motion then made to exclude it as to the others, the duty so to limit its application was immediate and unmistakable. The statement was peculiarly harmful to those defendants who were connected with the police force—the mayor, chief, and Officers Zarkovieh and Ramey. It recites the payment of money for police protection, and indicated a conspiracy which had manifested itself by the arrest of Orta as soon as he stopped buying liquor of Mendez.

A similar question arises as to the testimony of federal agents who identified a statement to them of defendant Grice Chandler, purporting to have- been signed and sworn to by him August 17, 1929, in the presence of five special agents of the federal Department of Justice. After the court bad deleted certain parts of the statement, the rest of it was offered and received in evidence. The statement is, in substance, that, since coming to Indiana Harbor, Chandler had been involved in maintaining gambling houses and a house of prostitution, and in telling liquor in violation of federal and state laws; that in 1926 he opened a house, paying Tom Johnson (a eoconspirator, dead) $100 a day for the privilege of running it, and was told by Jobnson that ¿is long as be paid it was all right, and as soon as he quit he would be “knocked off”; that he did quit and was immediately “knocked off”; that he paid until September, 1926, when be was told to close, and did so, remaining closed until the fall of 1928; that in the interval he was in partnership with Cap White (a defendant on trial) running a crap game and selling booze, and paying $200 a week to Johnson, who promised protection; that in September, 1928, he opened another place, but before doing so be had to see Col-lengefi, “who had taken Johnson’s place as collector”; that Collenger said if Chandler paid him $250 a week it would insure protection against raids by local police; that just before the November, 1928, election Col-lenger and Chandler had a disagreement over the amount to be pfpd, and Chandler told him that he (Collenger) had been “starving me and my wife too long.”

The government freely admits that Chandler’s statement was not made in furtherance of the conspiracy. It reflected severely upon the members of the police department.

The government contends that,- if there-was right at that time to have the jury instructed as requested, the right was waived through the colloquy.

The right to have such incompetent and harmful evidence promptly excluded, as against those to whom it has no proper application, is plain; but, if it be assumed that the right in this instance was waived by the failure of counsel to call attention to it upon the general charge to the jury, the waiver is not applicable to the Orta statement, nor to other similar items of evidence admitted over objection, or retained through denial of motions to exclude made immediately after they were received.

Government Agent Turrou, who testified he was present when Chandler made the statement, related a conversation with Chandler in the Chicago Federal building on the same date, which was very much to the same effect as the Chandler statement. At the conclusion of his testimony it was moved by all the defendants except Chandler that the jury be instructed to consider Turrou’s evidence as against no other defendant than Chandler, for the reason that it appears what Chandler said was a narration of past events, and not- a declaration in furtherance of the conspiracy, and not made in the presence of any other of the defendants. This motion the court denied, and exception was taken.

Government witness and agent Lyle testified to very much the same effect, and the motion on the part of the other defendants to strike it as to them because not made in their presence nor in furtherance of the conspiracy was denied by the court.

A written statement of defendant Overall, made to Government agents nearly three months after the return of the indictment, was to the effect that in 1925 Overall had a talk with defendant Hale, when the latter was candidate for mayor, in which Hale said that he would take care of Overall and Chandler for four years if they would support him; that Overall could have Broadway, Chandler Parish avenue, and Cap White Pennsylvania avenue; that later a man told Overall he could get him police protection; but that, after he (Overall) refused to pay, he was raided by the police department, although before that he had not been raided.

The court denied motion of the defendants other than Overall to exclude the statement as evidence against them. Manifestly this statement also had no possible relation to the conspiracy, and was hearsay as to the defendants making the motion to exclude. The statement was severely harmful to Hale, and reflected strongly upon the other defendants connected with the police department. As to all of them it should have been excluded, with such admonition to the jury as would tend to minimize its harmful influence upon those defendants against whom it afforded no degree of competent evidence.

It is contended for the government that whatever of error there may have been in the admission in evidence of the statements and testimony of conversations, or the failure to limit their application, was obviated or cured by that part of the court’s general charge at the close of all the evidence, which was: “I instruct the jury that the statements . of coeonspirators are admissible if made during the conspiracy and in furtherance of the object of the conspiracy and are admissible as against all persons who are in the conspiracy, but that these statements are not to be used for the purpose of establishing the existence of the conspiracy itself.”

This charge, in effect, put it up to the jury to decide whether the statements and evidence were admissible against the complaining defendants. This was a function of the court, not of the jury. The statements and conversations were but narratives of past events, in no respect attributable to the conspiracy. They were purely hearsay, and inadmissible as to all the defendants save those who made them. It was for the court to pass upon their admissibility, and indeed it did so pass—in overruling objections to their admissibility against the objecting defendants or in denying motions, made after they were received in evidence, to so limit their application. These rulings closed the matter so far as the objecting defendants were concerned, and they were not thereafter required to seek further ruling by the court in order to avail of any error in the rulings thereon already made. As we have above suggested, such evidence should on objection or motion have been rejected or stricken out as to the other defendants, when it was evident that it was but hearsay. That was the least the court could have done to protect defendants against whom the statements and evidence were not competent from the serious menace of their influence. The charge given is the statement of a mere abstract principle of law which the jury was quite unqualified to apply to the many defendants and to the many instances of the reception of such evidence in the course of this lengthy trial.

Had the charge specifically pointed out that this or that statement received in evidence, or this or that evidence of what a given defendant had related to the witness, was incompetent and not to he used against specifically named defendants, it might perhaps have served sufficiently to have neutralized the virus of the improper admission or refusing to strike. This we need not decide, since the charge giyen did not serve to guide the jury as to what evidence should be rejected.

The failure to exclude or limit this evidence may indeed account for Collenger’s eonvietion, apparently upon such a statement alone, eoncededly incompetent as to him. If such incompetent evidence served to convict him, the mass of evidence of the same kind, improperly received as to other of the defendants, in all probability tended materially to influence the result as to them.

The government’s contention that the statements and evidence were admissible as res gestas is altogether too far-fetched and groundless to merit discussion.

Another contention of error arises respecting witness Burhop, who was a nephew of Hale’s wife, and who gave testimony for the government exceedingly damaging to Hale, and in somewhat lesser degree to Began and Zarkovieh. He was for a time on the police force, and held other city positions during Hale’s .mayoralty, and was one of the alleged conspirators, but not indicted. On cross-examination some impeaching questions were put to him respecting a conversation between Hale and himself in the presence of Phillips, another uncle. The conversation inquired about was developed in a number of questions, which, with Burhop’s answers thereto, appear in the margin.

No objection to these questions was interposed when they were asked of Burhop, but, when Hale and Phillips were interrogated as to whether the conversation occurred, the government objected on the ground that the conversation was as to collateral matters, and that the defendants were bound by the answers, and that the questions were largely self-serving as to Hale. The court sustained the objection, and Hale and Phillips were not permitted to testify on .that subject.

The government’s position thereon may be summarized in these words from its supplemental brief: “It maybe admitted-that-a portion of the offer (though a minor portion) would have been admissible under the rule contended for by appellants if it had been offered separately. But no such offer was made. The admissible portion of the conversation was so commingled with the inadmissible portion that the court was justified in denying the entire conversation.”

There can be no question but that it was competent to undertake impeachment of Bur-hop by showing his bias or hostility toward Hale or other defendants, and his manifested readiness, for a consideration, to testify for or against them. Murray v. United States, 247 F. 874 (C. C. A. 4); Quaker Oats Co. v. Grice, 195 F. 441 (C. C. A. 2.); Hoagland v. Canfield, 160 F. 146, 170 (C. C. A. 2).

Impeaching questions cannot always be limited to the alleged words of the witness. Enough of the conversation may be! inquired of to indicate fairly and intelligently the real scope of the conversation. Nashville Inter-urban Ry. v. Barnum, 212 F. 634 (C. C. A. 2); Fincher v. State, 58 Ala. 215; State v. Malmberg, 14 N. D. 523, 105 N. W. 614; Wigmore on Evidence (1904 Ed.) § 951.

Surely the last question asked was free from any objectionable extraneous matter, and we are of the opinion that nothing seriously objectionable from the viewpoint of competency appears in the other questions.

It seems plain to us that, if the defendants injuriously affected by Burhop’s testimony were entitled to adduce the proffered impeaching evidence, serious error intervened in its rejection.

The attitude of the Supreme Court upon a kindred situation is instructively indicated in the recent ease of Alford v. United States, 282 U. S. 687, 51 S. Ct. 218, 75 L. Ed. 624. A defendant was convicted of a criminal charge. A witness who gave damaging testimony against him was upon cross-examinar tion asked the question, “Where do you live?” Government’s objection to the question was sustained. The Court of Appeals (with one dissent) sustained the ruling of the District Court on the ground that “the proposed question was merely in pursuit of a fishing expedition by which he [counsel] hoped to discredit the witness.” 41 F.(2d), 157, 160 (C. C. A. 9). The Supreme Court, evidently deeming the situation to afford “special and important reasons” for its intervention, awarded ■ certiorari, and, brushing aside technicalities, reversed the judgment upon the ground alone that the defendant had been unduly restricted in his lawful right of cross-examination.

In the light of this adjudication, the rejection of the impeaching testimony of Hale and Phillips was error, decidedly serious as to Hale, Regan, and Zarkovieh.

Por the errors pointed out applicable to the several appellants, the judgment as to each of them is reversed, and the cause as to each of them is remanded to the District Court, with direction to grant in each ease a new trial.

       Court: Well, I think I should instruct the jury that unless they find that at this time there existed a conspiracy, then these paragraphs are not to-be considered by the jury as any evidence against any of the other defendants except Chandler.
      Mr. Galvin: We will appreciate the court going that far, but I wish to say further than that, I wish, to ask the court to make his instruction go farther and say that in no event is that to be considered as any evidence against anybody except Chandler,, for the reason that this is, as stated in the general objection, merely a recital of a narration of past events made by Chandler and it is not any declaration made in furtherance of the conspiracy that can be considered against the coconspirators who are on trial.
      The Court: That request will be refused.
      Mr. Galvin: Exception. And I take it there is an. overruling of all the other objections and exceptions by all defendants.
      The Court: Yes. Now, gentlemen, this modified exhibit will be admitted in evidence as modified, and I think I will take care of the limitations in my instructions rather than attempt to do it before it is read, if counsel will call that to my attention when we come to get ready for instructions.
      Mr. Galvin: You mean an* instruction immediately after- it is read ?
      The Court: No, I mean in my general instructions to the jury.
      Mr. Galvin: Oh, I see.
      The Court: I will have to rely on counsel to a certain extent to remind me what paragraphs the instructions should apply to. I suppose counsel for the defendants will ask that they apply to all of them. Are you ready for the jury.

         Q. And in that conversation, or didn’t you at that time have this conversation in substance: “You—” addressing Doctor Hale—“You were arrested wasn’t you? Do you know why you were arrested?” Doctor Hale answering, “I know nothing about it except that I was arrested.” You replied, “Well, damn you, if you are going to fight your case that way you are done for.” Then Doctor Hale replied, “I have nothing to say about my case until I know what I am charged with.” And you replied, “Well—” using a term that I will not repeat, but I will use the word “kick” instead of it—“Well, kick you, if you don’t want to talk to me.” His reply was, “What shall I talk about?” And you said, “I have information that can stop this whole affair. I am in bad, arrested on two counts, delinquency and the Mann act, and I am going to have to do time. Besides» my damn woman has left me and I don’t give a damn what happens now. You don’t need to think that anybody else can get you out of this but me. I have the inside dope and if you want it you cap talk to me.” Then he replied, “Well, what do you want me to do? If you have any information, give it to me.” Your reply was, “I am no damn fool. I need money, having lost $85,000, and I have made plenty of money in the past two years by running booze, and now you can set me in right and let me run, and I can give you tbe information.” Did you have such a conversation in substance?
      A. No, sir.
      Q. At that time and place?
      A. No, sir.
      Q. You did not?
      A. No, sir.
      Q. Wasn’t this further conversation at the same time and place had between you and Doctor Hale: “You never did like me,” you addressing Doctor Hale, “You never spoke to me only when I was first on the police department.” And Doctor Hale replied, “No, I never gave a policeman an order, nor have I talked to any policeman. You didn’t want to talk to me. I passed you three times on the South Shore coming from Chicago when you got off at Hammond and you didn’t offer to speak to me.” Your reply, “Well, a fellow gets off where he can make money, and sometimes he doesn’t want to be seen getting off. I wanted to get off at Hammond and I didn’t want anybody to see me get off there. The last time I saw you was when you were with John Horn in that train.” Did you have such a conversation in substance?
      A. No, sir.
      Q. Nothing like it?
      A. No, sir.
      Q. And did you have this further conversation at the same time and place: “Yes, when you got off at Hammond.” Then he said, “Yes, when you got off at Hammond.” Then you said, “Well, you ban fix me up. I have tried to talk to Martin and the Chief for two days. You are mayor and somebody in the community, and I don’t want to talk* to anybody but you. You have a smart chief, smartest in the game, and Martin is just as smart, and if you don’t want to talk to me, God damn you, you can go kick yourself. My partner and I want to know where we are going to be. You know he is my partner and I own the place.” His answer was, “What place?” You gave the address, 3536 Pennsylvania. “I have got protection and you can't touch me.” Did you have such a conversation in substance?
      A. No, sir.
      Q. Didn’t you further say in this conversation, “You have ridden hell out of me for the past two years,” and he replied, “You needed it. You had every opportunity to make something of yourself, and when I was elected mayor you asked me to give you a chance to work and that you would go to a dental school. I kept my promise to you and put you to work in the mechanical department, and you asked to be put in the police department. I did that. And you became so rotten in the police department I had to take you off entirely. I talked to you and warned you and even held your check so you could get your bills paid up, but you went to the bad right. You missed your very best opportunity.” And your reply was, “Hell, I have had fifteen opportunities in the past two years. What the hell do I care about opportunities? I have this information from the inside, but you won't get it unless you tell me that you will take care of me, and, kick you, if you don't want it you can go to jail.” And didn’t he reply, “Maybe I will. But you can't over get me in a corner, Burhop. If you want an argument I will give it to you. If you want to talk to me I will talk to you, but I will not bargain with you in any way for anything you have.” Wasn't that conversation bad in substance at that time and place?
      A. No, sir.
      Q. And wasn't tbis further said: “I am sick and tired of all tbis stuff. Grannie is gone and there has been bell here since.” He replied, “Yes, she died of a broken heart.” And your reply, “I never did anything—” his reply, “I never did anything in my life that I was ashamed to go home for—” I missed one place here. “Yes, she died of a broken heart,” and you said, “Yes, I know that, and if you knew what she said to-me, you wouldn’t go home tonight.” Then, his reply was, “I never did anything in my life that I was ashamed to go home for, and I think I had the last word with Grannie. You and some others are responsible for her death and all that has happened here,” And didn't you reply, “Kick you, you are in bad, and, God damn you,° if you don’t want my information you can go to hell.” His reply, “John, you are a regular bum. You have no friends. You have'lost all the manhood you ever had, and you should be ashamed of yourself. And you said, “I know it. You were always good to me and I like you, but, God damn you, when they were raiding my place over there we were stealing the booze from the cellar vault in the city hall.” Didn’t you have that conversation in substance?
      A. No. sir.
      Q. Didn’t you further say in the conversation, after he had told you that you should straighten up and become a man, “Who the hell wants any manhood? All I want is a chance to make a dollar and I am going to get it, and I don’t care how. I lost my woman but what the hell do I care about that. I can get plenty of broads. All I want is a chance to make money and you can give it to me, but you won’t talk to me about it,” and didn’t he reply, “No, I didn’t come here to bargain with you in any way. If you have any information that you claim you have, you should be man enough to give it to me.”


author: WILBUR, Circuit Judge.

text:
    WALTON v. OREGON SHORT LINE R. CO.
    No. 6382.
    Circuit Court of Appeals, Ninth Circuit.
    May 25, 1931.
    Milton E. Zener and T-. C. Coffin, both of Pocatello, Idaho, for appellant.
    'Geo. H. Smith, of Salt Lake City, Utah, and H. B. Thompson and L. H. Anderson, both of Pocatello, Idaho, for appellee.
    Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
   WILBUR, Circuit Judge.

Appellant brought this action to recover damages for the death of three of the minor children of herself and her husband, Verne Walton, who was killed at the same time as the children, in a railroad crossing accident. The husband, who was driving the automobile at the time of the collision, drove directly onto the railroad track in front of the passenger train operated by the appellee railroad company.

Upon the trial of the ease appellee moved for a directed verdict upon the ground that the railroad company was not negligent, and that the father of the children was negligent, and that the negligence of the father was either the sole proximate cause of the injury or was a contributing cause thereto. The trial court granted the motion. In directing the verdict the trial eourt stated the undisputed facts as disclosed by the evidence and informed the jury that the motion for directed verdict was granted because of the negligence of the father of the children.

The facts are not in dispute. Appellant’s eharge of negligence is based upon the assumption that under the admitted circumstances it was a question of fact for the consideration of the jury whether Or not at the time and place in question it was the duty of the railroad company in the exercise of ordinary care to maintain a flagman at the crossing where the accident occurred, or stop one of its trains and send a brakeman or flagman forward to warn the father of the approach of the passenger train.

The salient facts disclosed by the record, most of which were alleged in the complaint and admitted by the pleadings and stipulations settling the record on appeal, are as follows: .

The railroad company operates a double track railroad across the crossing in question. At the time of the accident a long freight train was crossing the road upon the track nearest to the automobile operated by the appellant’s husband containing their children. The husband stopped his car to await the passage of the freight train. He was familiar with the crossing and knew that there was a double track railroad. Other automobiles stopped at the crossing at the same time. As soon as the freight train cleared the crossing by about a car length appellant’s husband started the machine and drove upon the tracks immediately in front of the approaching passenger train which was being operated at the usual and customary speed. The collision occurred almost instantly. The crossing was marked by signboards, indicating that the railroad at that point was a double track railroad; the usual signals were given by the approaching passenger train.

At the point in question a main paved highway paralleled the railroad track upon the side upon which the freight train was operating, and traffic upon said highway diverted across the railroad crossing in question to reach a cheese factory and a few houses upon the opposite side of the track. It is claimed in the complaint that traffic to and from the People’s Market of Pocatello, Idaho, also diverted across the tracks at this point, but the evidence showed that there is another crossing which might be taken by this travel. It is clear from the evidence that, although this crossroad was a public road, it is used by comparatively few people. There was a clear view from this road of trains approaching in either direction upon the railroad. Appellant alleged that there was a rise in grade of the road from-the main highway to> the railroad crossing, but the evidence shows that this was comparatively slight increase in elevation, and it is clear that this fact had nothing to do with the accident and did not of itself make the crossing hazardous. There is nothing in the evidence to indicate that this is an unusually hazardous crossing or that there is a large amount of traffic over such crossing.

Considering the character of the crossing as disclosed by the evidence, the elaim of the appellant amounts to this: That it is negligence for a railroad company to permit trains to pass each other at a road crossing where the operatives of one train observe automobiles awaiting the opportunity to cross upon the side nearest the track’ upon which it was operated whether the employees operating the other train are advised of that fact or not. Under these circumstances the question of whether or not there was negligence is a question of law to be determined by the court. The rule in that regard was stated by the Supreme Court of the United States in Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 421, 12 S. Ct. 679, 684, 36 L. Ed. 485: “It seems, however, that before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should kfeep a flagman or gates at a crossing, it must be first shown that such crossing is more than ordinarily hazardous; as, for instance, that it is in a thickly populated portion of a town or city; or that the view of the track is obstructed either by the company itself, or by other objects proper in themselves; or that the crossing is a much traveled one and the noise of approaching trains is rendered indistinct, and the ordinary signals difficult to be heard, by reason of bustle and confusion incident to railway or other business; or by reason of some such like cause; and that a jury would not be warranted in saying that a railroad company should maintain those extra precautions at ordinary crossings in the country.”

There is no doubt under the record that the father of the children was guilty of negligence which contributed to the collision and the death of his children. So. Pac. Co. v. Day (C. C. A.) 38 F.(2d) 958; Baltimore & O. R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645; Lundergan v. N. Y. C. & H. R. R. Co., 203 Mass. 460, 89 N. E. 625; note, 56 A. L. R. 544.

The appellee contends that under the statutes of Idaho (sections 4681, 4676, 6643, 4656, Idaho C. S.), which are similar to the law of California, the surviving wife cannot recover damages for the death of their children under these circumstances, citing in support of this conclusion a decision of the Supreme Court of California in Keena v. United R. R. of San Francisco, 57 Cal. App. 124, 207 P. 35; Cossi v. So. Pac. Co. (Cal. App.) 293 P. 663. It is conceded, however, that this exact question, depending upon the interpretation of the statutory law of Idaho, has not been passed upon by the Supreme Court of that state. Although we are inclined to agree with the contention of the appellee, we prefer to base our decision upon the point first herein considered, namely, that the appellee was not guilty of negligence, and for that reason the jury was properly instructed to find a verdict in favor of appellee.

Judgment affirmed.


author: BINGHAM, Circuit Judge.

text:
    COLON v. HANLON, Federal Prohibition Adm’r, et al.
    No. 2532.
    Circuit Court of Appeals, First Circuit.
    May 28, 1931.

      Benicio F. Sanchez, of San Juan, Porto Rico, for appellant.
    A. Chesley York, Asst. U. S. Atty., of Boston, Mass. (Frank Martinez, U. S. Atty., of San Juan, Porto Rico, on the brief), for appellees.
    Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
   BINGHAM, Circuit Judge.

This is a proceeding brought in the Federal District Court of Porto Rico for the return of the motorboat Norberta to the petitioner, her owner. One of the defendants, A. J. Hanlon, is the federal prohibition administrator for the district of Porto Rico and is also a deputy collector of customs. The other defendant, H. L. Moore, is the collector of customs for the district.

On February 19, 1930, the Norberta was discovered by federal officers off the coast of Areeibo, but within the three-mile limit, transporting intoxicating liquor. The officers went on board, searched her, and seized a large quantity of intoxicating liquors, took possession of the boat, and arrested four men, one of whom, Rafael Rios, had possession and control of the boat.

On February 20, 1930, a complaint was sworn out by one of the officers before the United States commissioner for Porto Rico, charging Rafael Rios and the other three men with possessing and transporting intoxicating liquor in violation of the National Prohibition Act (27 USCA). On that day a hearing was had before the commissioner and they were bound over to appear before the District Court. Later an indictment was found against them for violating the National Prohibition Act, as charged in the complaint. Thereafter, a trial was had in the District Court on the indictment. The jury found them all guilty of illegally possessing the liquor on the motorboat, but acquitted them all on the charge of illegal transportation.

It appeared that on January 29, 1930, Serrano, the owner of the boat, entered into a contract .of lease or conditional sale with Rafael Rios, wherein he agreed to sell the boat without the motor for $1,500 and with the motor for $2,500, subject, however, to the following conditions: That the purchaser might take the boat to Ponce, where he lived, on trial for twenty days, and, if found satisfactory, at the expiration of the twenty days pay the sum of $2,500; but, if not satisfied with the motor, he should be obliged to pay only $1,500, delivering the motor to the seller in good condition. During the twenty days the purchaser was to pay $5 a day and all the expenses of the boat, the title to remain in the seller until the payments were made as above specified. At the time of the seizure nothing had been paid to Serrano either by way of daily rental or on the purchase price. The boat was licensed in the coasting trade.

There was uncontradicted evidence to the effect that Serrano had no knowledge or information that Rios, to whom the boat was turned over, was to use it in violation of the National Prohibition Act, or that it was so used.

It also appeared that, when the boat was brought by the officers into San Juan on February 21, 1930, it was turned over to the collector of customs. It was then appraised at the value of $800, and, the appraisal being less than $1,000, it was advertised' for forfeiture for a violation of the customs laws, in the Impareial, a newspaper published in San Juan, in the issues of March 1, 8, and 15; and, on March 21, 1930, the advertising having been had, and no bond and claim having been filed, F. E. Russell, the assistant collector of customs, at San Juan, pursuant to sections 514 and 516, 19' USCA, declared the boat forfeited for a violation of section 4377 of the Revised States (46 USCA § 325), and caused a record thereof to be entered in that department.

The boat was not sold, but, under the provisions of chapter 438, § 1, of the Act of March 3, 1925 (section 522, 19 USCA), at the direction of the Secretary off the Treasury, it was assigned to the customs patrol for use in connection with the enforcement of the customs laws.

It is admitted that the Norberta, at the time the petition was filed, was in the possession and under the control of the defendants, Hanlon and Moore. In the District Court it was decreed that “the forfeiture of the motor boat Norberta stand, and the claimant and owner of said motor boat pay the costs.”

The petitioner, by his assignments of error, complains that the court erred in sustaining the forfeiture and declining to order the return of the motorboat, on the ground that the officers of the government, having discovered Rios and the other men in the act of transporting liquor in the Norberta, having seized the liquor, arrested the men, and taken possession of the boat, and having proceeded against the persons arrested for the illegal possession and transportation of the liquor thereon under the National Prohibition Act, they were bound to proceed in the condemnation of the vessel under section 26 of title 2 of that act (27 USCA § 40), and were without authority to proceed and forfeit the boat under section 4377 of the Revised Statutes or any other provision of the customs laws, ■and that the acts and proceedings thereunder are null and void.

The latest decision on the subject that we are aware of was rendered May 19', 1930, by the Supreme Court, and is reported as Richbourg Motor Co. v. United States, 281 U. S. 528, 50 S. Ct. 385, 386, 74 L. Ed. 1016. There the court had under review two judgments affirming the forfeiture of automobiles under Rev. St. § 3450 (26 USCA §§ 1181, 1182). The question in those cases was “whether proceedings for the forfeiture of a vehicle seized under section 26 of title 2 of the National Prohibition Act, as one used for unlawful transportation of intoxicating liquor, but, where there has been no prosecution for that offense, must be had under that section, or whether they may be prosecuted under the provisions of Rev. St. § 3450,” which authorizes the forfeiture of a vehicle used in the removal or concealment of any commodity with intent to deprive the United States of any tax upon it, and makes such act of removal or concealment a criminal offense.

In each of these cases the Court of Appeals had affirmed a judgment of the District Court forfeiting automobiles under section 3450, in which the petitioners respectively asserted an interest as innocent lienors. The Supreme Court reversed the judgments of the Court of Appeals in both eases. It is there pointed out that “by section 5 of the Willis-Campbell Act of November 23, 1921, c. 134, 42 Stat. 222, 223 (27 USCA § 3), all laws relating to the manufacture, taxation, and traffic in intoxicating liquors and penalties for their violation, in force when the National Prohibition Act was adopted, were continued in force, except such provisions as are 'directly in conflict with any provision of the National Prohibition Act’ ”;' that in two cases (Port Gardner Investment Co. v. U. S., 272 U. S. 564, 47 S. Ct. 165, 71 L. Ed. 412, and Commercial Credit Co. v. U. S., 276 U. S. 226, 48 S. Ct. 232, 72 L. Ed. 541), the court had “held that prosecution and conviction of the offender for the transportation of intoxicating liquor under the Prohibition Act barred forfeiture of the seized vehicle under section 3450 (26 USCA § 1181), since the disposition of the vehicle after the conviction, prescribed by title 2, section 26 (27 USCA § 40), is mandatory”; that those cases left undetermined the question “whether, under title 2, § 26, the mere arrest of the person discovered in the act of transportation, and the seizure of the transporting vehicle, bar the forfeiture under section 3450 (26 USCA § 1181).”

In answering this question, it held that the language of section 26 was,“in form mandatory throughout,” and that, “whenever the vehicle seized by the arresting officers is discovered in use in the prohibited transportation,” compliance with the requirements of section 26 compelled the forfeiture to be made under that section, and in tlfat respect section 26 was in direct conflict with the forfeiture provisions of section 3450 and superseded them when any person within the provisions of section 26 is discovered in the act of transporting intoxicating liquor in any vehicle; that Congress, by the language used in section 26, whenever transportation is involved, disclosed a “definite purpose to make the protection [therein afforded the interests of an innocent third person] effective by bringing all forfeitures in such eases under its controlling provisions”; that it did not thereby intend to impose “on government officers the general duty to procure the forfeiture at their election, either under title 2, § 26, or any other applicable statute”; that the objective of section 26 was “not the prosecution of the offender, elsewhere provided for, but the confiscation of the seized liquor and the forfeiture of vehicles used in its trans-poration, to the limited extent specified in the section.”

In view of the facts in this ease and the decision of the Supreme Court above referred to, the officers of the government, having discovered Rafael Rios and the other three men transporting liquor in violation of law in the Norberta, were required to proceed in the forfeiture of the boat under the provisions of section 26; that to that extent and in that respect section 26 superseded section 4377 and rendered the attempted forfeiture under that section or any other section of the customs law nugatory ■

As Rios and the other three men charged in the indictment with the unlawful transportation of liquor on the Norberta were acquitted, the boat cannot be condemned under section 26, and should be returned to the claimant. The Squanto (C. C. A.) 13 F.(2d) 548, 552.

The order or decree of the District Court is vacated, and the case is remanded to that court, with direction to enter an order that the boat be returned to the claimant.


author: WALKER, Circuit Judge.

text:
    SILVER SPRINGS PARADISE CO. v. RAY et al.
    No. 6120.
    Circuit Court of Appeals, Fifth Circuit.
    June 1, 1931.
    Rehearing Denied July 6, 1931.
    Henry P. Adair, of Jacksonville, Fla., Robert L. Anderson, Jr., of Ocala, Fla., and John M. MeNatt, of Jacksonville, Fla. (R. L. Anderson, Jr., of Ocala, Fla., H. P. Adair, of Jacksonville, Fla., Anderson & Anderson, of Ocala, Fla., and Knight, Adair, Cooper & Osborne, of Jacksonville, Fla., on the brief), for appellant.
    H. L. Anderson, of Jacksonville, Fla., and H. M. Hampton, of Ocala, Fla., for appel-lees.
    Before FOSTER, HUTCHESON, and WALKER, Circuit Judges.
   WALKER, Circuit Judge.

By this suit the appellees asserted the claims that, by reason of their ownership of land beneath the waters of Silver Springs, a body of water located in Marion county, Fla., and of an established business of operating glass-bottom boats for the purpose of carrying persons for hire over those waters and showing the waters and bed of Silver Springs, they have the exclusive right to operate such boats over those waters for hire and for the purpose mentioned, and the light to prevent the appellant, which owns a tract of land on Silver Springs river or run, the outlet of Silver Springs, about three-fourths of a mile east or southeast of the head of Silver Springs, on which is located appellant’s place of business, called Paradise, from maintaining at the intersection of the Ocala and Day-tona Highway with the road leading to the place known as Paradise, signboards or signs containing the word or words “Silver Spring” or “Silver Springs,” and from using the name “Silver Springs” as a part of its name in advertising it's place of business at Paradise. Following a hearing on the bill, answer, and exhibits, affidavits, photographs, and other documents, on application of appellees for a temporary injunction, the court sustained the above-mentioned claims asserted by the appellees by a decree granting such an injunction, and by a deeree denying a motion to dissolve that injunction. The case is before us on appeals from those decrees.

Thei’e is no dispute as to the facts which we consider to be controlling in the determination of the questions raised by the record. At the above-mentioned location in Marion county, Fla., there is a large natural basin containing a number of springs which create the body of water called Silver Springs, which discharges through Silver Springs run or river into the Oklawaha river, a tributary of the St. Johns river, which discharges into the Atlantic Ocean. The stream so formed in its natural and ordinary condition is susceptible of being used for commerce, over which trade or travel may be conducted in the customary modes of trade and travel on water from its head or source as a highway by water craft of all kinds having not exceeding six feet draft, and continuously has been susceptible of being so used. The water over the springs which feed that body of water called Silver Springs varies in depth up to eighty feet, and that water is clear, transparent, and beautiful. The bed of that body of water, the caverns and crevices from which the contributing springs issue, the rock formations in the bed, the vegetation growing thereon, and living creatures clearly visible in the waters, are beautiful and interesting, with a result that the place is attractive to visitors. .Pursuant to provisions of an act of Congress passed in 1823 (3 Stat. 754), publie lands including the territory in which Silver Springs is located were surveyed and opened to sale. That act contained the provision: “That all the navigable rivers and waters in the districts of East and West Florida shall be, and forever remain, publie highways.” Section 12. Under the survey and plat made of publie lands, Silver Springs is partly in the northeast quarter of the southeast quarter of section 6, in township 15 south of range 23 east, in the district of land which was subject to sale at Newnansville, Fla., and partly in the southeast quarter of that quarter section, and the two land subdivisions which include Silver Springs contain seventy-nine acres and one-hundredth of an acre. About ten acres included in those two subdivisions are permanently covered by the waters of Silver Springs, the flow from which amounts to more than three hundred millions gallons of water a day.

On February 24, 1845, while Florida was . a territory, James Rogers made a cash entry of the above-mentioned subdivisions of land and paid therefor the sum of $98.75 for seventy-nine acres and one-hundredth of an acre at $1.25 per acre, and received the receiver’s receipt showing such payment for that land. On July 1, 1848, after Florida became a state, a patent for that land was issued to James Rogers. By mesne conveyances appellees succeeded to the title so acquired by James Rogers. For many years appellees’ predecessors in title and appel-lees have paid taxes on the land described in said patent including the part thereof which is beneath the waters of Silver Springs. For many years appellees and their predecessors in title have operated glass-bottom boats over Silver Springs, by means of which Silver Springs and what is beneath the surface of that body! of water, including the living creatures .therein, are displayed for hire. Ap-pellees have extensively advertised that business, and derive a substantial profit from it. A short time before the date of the filing of the bill in this case, the appellant acquired the above-mentioned tract of land on which it located its place of business called Paradise, and began the operation of a rival glass-bottom boat business, showing for hire Silver Springs and part of the stream into which the waters of Silver Springs are discharged and what is beneath the surface of those waters. For many years prior to 1925 boats carrying passengers and freight were operated from and to points on the Oklawaha and St. Johns rivers to and from the head of Silver Springs, where there were warehousing and docking facilities. At or near the head of Silver Springs is a settlement, also called Silver Springs, at which the United States maintains the Silver Springs post office.

Under above-indicated undisputed evidence it is not open to question, and it is conceded by counsel for appellees, that the body of water ealle.d Silver Springs, including the water which submerges part of the ladd included in the description contained in the land patent under which appellees deraign title, is navigable from its head or source. United States v. Holt State Bank, 270 U. S. 49, 56, 46 S. Ct. 197, 70 L. Ed. 465; United States v. Utah, 51 S. Ct. 438, 497, 75 L. Ed.-, April 13, 1931. The parties advance conflicting contentions as to whether the appellees, as successors in title to James Rogers, the patentee, did or did not acquire any title to that part of the land included in the description contained in the patent which is submerged by the waters of Silver Springs; it being contended in behalf of the appellees that the patent was effective to convey title to all the land included by the description contained therein, and counsel for the appellant contending that, because, at the time of the entry and purchase in pursuance of which that patent was issued, the United States held in trust for the state to be created the title to the beds of all navigable waters within the territory which became the state of Florida, the patent was not effective to convey to the patentee, an ordinary purchaser of public land for private use, any title to or estate in that part of the land described in the patent which is under the navigable' waters of "Silver Springs. United States v. Holt State Bank, supra; Shively v. Bowlby, 152 U. S. 1, 47, 48, 14 S. Ct. 548, 38 L. Ed. 331. The United States, at the time of the patentee’s entry and payment for the land described in the patent, being vested, as to that land, with the rights and power of both sovereign and proprietor, it seems that the patent conveyed to the patentee some title to or right of ownership in the part of that land which is covered by navigable water. Goodtitle v. Kibbe, 9 How. 471, 478, 13 L. Ed. 220; Shively v. Bowlby, supra; Brewer-Elliott Oil & Gas Co. v. United States, 260 U. S. 77, 43 S. Ct. 60, 67 L. Ed. 140; United States v. Holt State Bank, supra; Kneeland v. Korter, 40 Wash. 359, 82 P. 608, 1 L. R. A. (N. S.) 745; Hewitt-Lea Lumber Co. v. King County, 113 Wash. 431, 194 P. 377, 21 A. L. R. 201. But if the title, if any, so conveyed must have been sueh a one as could furnish no support for any claim asserted by this suit, with the result that the decision of the questions raised by the record would be the same, whether that title did or did not exist, it is not material to determine whether the patent did or did not convey to the patentee any title to the submerged part of the land included in the description contained in the patent.

As the statute under which the patented land was offered for sale and sold contained the above set out provision as to all navigable waters being and forever remaining public highways (that provision being to the same effect as one contained in 43 USCA § 931), it is to be inferred that it was intended that no patent issued under that statute should' affect the right of the public to use as a highway navigable waters covering lands included in the description contained in the patent. St. Paul & P. Railroad Co. v. Schurmeier, 7 Wall. 272, 289, 19 L. Ed. 74.

Even in the abseneec of such a statutory provision the title which an owner of highland contiguous to a navigable stream or body of water may have in land covered by such water is at best a qualified or restricted one. “Whatever the nature of the interest’ of a riparian owner in the submerged lands in front of his upland bordering on public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all times subordinate to sueh use of the submerged lands and the waters flowing over them as may be consistent with or demanded by the public right of navigation.” Scranton v. Wheeler, 179 U. S. 141, 163, 21 S. Ct. 48, 57, 45 L. Ed. 126; United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 64, 33 S. Ct. 667, 57 L. Ed. 1063; Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U. S. 82, 89, 33 S. Ct. 679, 57 L. Ed. 1083; United States v. Cress, 243 U. S. 316, 37 S. Ct. 380, 61 L. Ed. 746. It follows that if appellant, in operating for hire glass-bottom boats on and over the navigable waters of Silver Springs, was exercising the publie right of navigation, and the maintenance of the asserted claim of the appellees that they had the exclusive right of operating for hire such boats on and over those waters would be inconsistent with the exercise by appellant of the public right of navigation, it is not material to determine whether appellees do or do not possess such qualified or limited title to land covered by those waters as is capable of being acquired in private ownership.

The public right of navigation entitles the public generally to the reasonable use of navigable waters for all legitimate purposes of travel or transportation, for boating or sailing for pleasure, as well as for carrying persons or property gratuitously or for hire, and in any kind of water craft the use of which is consistent with others also enjoying the right possessed in’common. As to that right a riparian owner, though he also has a qualified or bare technical title to the soil covered by the navigable water opposite his upland, is entitled to no preference or priority, his right in that regard being only concurrent with that of other members of the public, and to be exercised in a way not inconsistent with the enjoyment of the same right by others. He cannot, any more than can one who has no title to riparian or submerged land, acquire an exclusive right to use navigable water opposite his upland for travel or navigation for purposes of business or of pleasure or diversion. Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 57 So. 428; Ferry Pass. I. & S. Ass’n v. White River I. & S. Ass’n, 57 Fla. 399, 48 So. 643, 22 L. R. A. (N. S.) 345; Broward v. Mabry, 58 Fla. 398, 50 So. 826, 828; Apalachicola Land & D. Co. v. McRae, 86 Fla. 393, 98 So. 505; Lamprey v. State, 52 Minn. 181, 53 N. W. 1139, 18 L. R. A. 670; 38 Am. St. Rep. 541, 551; State v. Columbia Water Power Co., 82 S. C. 181, 63 S. E. 884, 22 L. R. A. (N. S.) 435, 129 Am. St. Rep. 876, 882, 17 Ann. Cas. 343; Heyward v. Farmers’ Mining Co., 42 S. C. 138, 19 S. E. 963, 20 S. E. 64, 28 L. R. A. 42, 46 Am. St. Rep. 702; Smart v. Aroostook Lumber Co., 103 Me. 37, 68 A. 527, 14 L. R. A. (N. S.) 1083; Monroe Mill Co. v. Menzel, 70 L. R. A. note, 277; Sanborn v. People’s Ice Co., 82 Minn. 43, 84 N. W. 641, 51 L. R. A. 829, 83 Am. St. Rep. 401; 45 C. J. 447, 559; Farnham on Waters, 130, 131.

In operating glass-bottom boats on the navigable waters of Silver Springs the appellees exercised, not a right which accrued to them by reason of their ownership of upland contiguous to those waters or of land beneath them, but the right of navigation which they possessed concurrently with the public generally. Having no exclusive right to use those waters for travel or transportation, appellees were not entitled to prevent the use of them by appellant in any way in which the public right of navigation reasonably may be exercised. In carrying passengers for hire in glass-bottom boats over those waters appellant exercised the public right of navigation, and by so doing did not violate any right possessed by the appellees. Having the right to use the waters of Silver Springs for purposes of travel for business or pleasure, and to transport persons thereon for or without compensation, the appellant and those transported by it had, as an incident of the right so to travel, the right to view the waters traversed and what was visible beneath the surface of those waters; and appellant was at liberty to provide facilities, to which others had no exclusive right, for displaying to persons carried the waters traversed, the vegetable growths and living creatures therein and the submerged land. The appellant was none the less engaged in exercising the public right of navigation by reason of the fact that it used glass-bottom boats and received pay from passengers for the sight-seeing advantages incident to travel in such boats. The faet that the waters of Silver Springs are navigable keeps the ap-pellees from being entitled to the monopoly or exclusive right they claim.

Appellees’ bill as it was amended contained allegations as to signboards erected and maintained by appellant at or near the intersection of the Ocala and Daytona Highway, which passes near the head of Silver Springs, and the road leading from that highway to Paradise, appellant’s location; and appellant’s original answer contained allegations as to signboards erected and maintained by the appellees: It was disclosed that all the signs above referred to were removed while the suit was pending and before the hearing on the above-mentioned motion to dissolve the injunction granted by the court. An amendment of appellant’s answer, after alleging that all said signs had been removed, alleged:

“And this "defendant, unless enjoined and restrained by order of this Court, will install and thenceforward maintain at or near the intersection of said Paradise road with said Ocala-Daytona Highway, one or more signs bearing substantially the following words and figures, or words and figures of similar import, to-wit:
“Turn Right for Paradise Landing
“On Silver Springs River or Run.
“There take Glass Bottom Boat Trip up the Run to its Head and over all of the Silver Springs.”

It is to be inferred that appellant has abandoned any claim of right to nse the name or words “Silver Springs” otherwise than as indicated by the just setout allegations. Silver Springs and Silver Springs run or river being the geographical names of a body of water and of the stream into which it discharges, those names are not subject to be exclusively appropriated as trade-names or as designations of one’s business or products. The words “Silver Springs,” - used in connection with the locality in question, constitute merely geographical names of a body of water, .of the stream which is its outlet, and of a particular settlement and post office. Names which axe merely geographical axe not subject to be exclusively appropriated as trade-marks or trade-names. Baglin v. Cusenier Co., 221 U. S. 580, 593, 31 S. Ct. 669, 55 L. Ed. 863; Wyatt v. Mammoth Cave Development Co. (C. C. A.) 26 F.(2d) 322. Appellees are not entitled to have another or others forbidden to use those words to designate the thing's the names of which, in whole or in part,' are “Silver Springs.” The injunction granted in effect forbids the appellant to call a body of water, a stream, and a settlement by the identifying names by which they are known and designated, though in using such names appellant does- nothing to mislead any one or in any way to misrepresent facts. The use by the appellant in its name or business of the merely geographical name “Silver Springs” would not properly be subject to complaint by appellees, if in so using that name appellant or its business were so identified as to be readily distinguishable from appellees or their business, so that no confusion or deception could be caused. No right of the appellees would be infringed by the erection and maintenance of a sign containing directions as to the route to be taken to reach appellant’s location on Silver Springs run or river, that sign containing nothing calculated to deceive any one into believing that in patronizing appellant he was patronizing the appellees.

The injunction granted is not sustainable, as it forbade the doing by the appellant of’ things it was entitled to do.

The decision that the court erred in decreeing that defendant (appellant here) be enjoined from maintaining, at the intersection of the Ocala and Daytona Highway with the road mentioned, signboards or other signs containing the name or words Silver Springs or Silver Spring, and from using the name Silver Springs as a part of its name in, advertising its business at Paradise, is not to be understood as having the effect of approving the use by the appellant of the name Silver Springs in any way that would be calculated to cause deception or confusion, or to induce anyone to believe that appellant’s sight-seeing excursion is the one advertised by the appellee.

Because of the above-indicated error, the decrees appealed from are reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed,


author: SAWTELLE, Circuit Judge.

text:
    Ex parte WONG FOO GWONG. WONG FOO GWONG v. CARR.
    No. 6373.
    Circuit Court of Appeals, Ninth Circuit.
    June 1, 1931.

      You Chung Hong, of Los Angeles, Cal., for appellant.
    Samuel W. McNabb, U. S. Atty., and Harry Graham Balter, Asst. TJ. S. Atty., both of Los Angeles, Cal. (Harry B. Blee, U. S. Immigration Service, of Los Angeles, Cal., on the brief), for appellee.
    Before WILBUR and SAWTELLE, Circuit Judges, and ST. SURE, District Judge.
   SAWTELLE, Circuit Judge.

Wong Eoo Gwong, appellant herein, a person of Chinese descent, in July, 1930, applied for admission to the United States as a blood son of Wong Sheh Woo, a native-born citizen of the United States. Appellant’s application for admission was denied by a Board of Special Inquiry sitting at San Pedro, California, and their exclusion order was sustained by the Secretary of Labor on appeal, August 25, 1930. Prom a refusal of the United States District Court of the Central Division of the Southern District of California to issue a writ of habeas corpus comes this appeal.

The Board of Special Inquiry denied admission to appellant “on the grounds that he is an alien immigrant of a race ineligible to citizenship not exempt by any of the provisions of section 13 (e) of the Act of 1924, as a Chinese person n,ot in possession of a duly visaed section 6 certificate, and as a person likely to become a public charge, he not having established the claimed relationship.”

The last phrase, “he not having established the claimed relationship,” is the basis of this appeal from the decision of the board and is the only question that concerns us here.

There is nothing in the record to indicate that the Board of Special Inquiry in reaching their conclusions abused their discretion, U. S. v. Ju Toy, 198 U. S. 253, 25 S. Ct. 644, 49 L. Ed. 1040; or that the hearing was not fair, even if it had been summary, Zakonaite v. Wolf, 226 U. S. 272, 33 S. Ct. 31, 57 L. Ed. 218; or that there was an application of an erroneous rule of law, Ng Fung Ho v. White, 259 U. S. 276, 42 S. Ct. 492, 66 L. Ed. 938. That being so, their action was final.

It is a well-established rule in eases of this kind that it was not improper for the immigration officials to refer to their past records in order to determine the weight to be given to the testimony of the .alleged father, Wong Sheh Woo. Tang Tun v. Edsell, 223 U. S. 673, 32 S. Ct. 359, 361, 56 L. Ed. 606. Appellant’s contention that the al-. leged father’s testimony before the immigration officials in 1912 and 1913,- to the effect that his wife, Ng Shee, was then living, should not be considered against him; that the testimony was taken hurriedly “in an extremely informal manner”; and that “appellant violated no law if he gave evasive or incorrect answers on those occasions”—cannot be taken seriously. The question here is not whether Wong Sheh Woo perjured himself by tbe giving of such false testimony and could be prosecuted therefor; rather is it whether or not the body of his testimony tends to support appellant’s claim or to cast greater doubts on its validity. If the answer to these questions had not been given by Wong Sheh Woo himself, they would never have appeared in the record, and the latter shows that these statements were signed by him after he had signified that he had understood the interpreter. Appellant contends that a Chinese person, when asked if he has understood the interpreter, invariably replies in the affirmative out of courtesy to the interpreter; this is unfortunate, if true, but not remediable. The fact that the statements regarding his alleged wife Ng Shee were made when the question of their relationship was not at issue, makes those statements of greater value when the issue of relationship itself is raised. Ng Yuk Ming v. Tillinghast, 28 F.(2d) 547 (C. C. A. 1); Louie Poy Hok v. Nagle (C. C. A. 9) 48 F.(2d) 753, opinion handed down April 6, 1931.

When appellant made application for admission, his alleged father testified that appellant was the son of Lok Shee whom he (Wong Sheh Woo) had married in 1912; that his first wife, Ng Shee, died in 1907. He repeated this date 1907 three times in the course of his testimony, then later returned and said that he had been mistaken and that his wife Ng Shee had died in 1911. However, this sudden change did not clarify the record, but led only to still greater inconsistency. When a previously entered alleged son of Wong Sheh Woo whs admitted in 1910, the latter did say that his wife, Ng Shee, was living in China; however, on July 27,1912, before Wong Sheh Woo’s, departure for China and on his return therefrom November 17, 1913, he said that his wife .was Ng Shee and that she was then living in China. Somewhat later, Wong Sheh Woo is on record as saying that Ng Shee >yas dead at the time of his trip to China in. 1912-1913 and that he made that particular trip for the purpose of getting married again; but it is extremely unlikely that he would have claimed a living first wife if he was going over for the express purpose of marrying a second time, or that he would, on his return, have claimed a living first wife if he had in reality been married a second time.

The immigration officials must necessarily base their decisions upon conflicts or agreements that arise in the testimony of applicants for admission and that of their witnesses. The confusion of the testimony of the chief witness for appellant in this instance, involving the authenticity of the claimed relationship and the very legitimacy of appellant’s birth, presents a much stronger basis for refusal of admission than do the usual discrepancies upon which the officials rely. With the burden of proof of the relationship on the applicant as it is here, when the texture of the testimony that is usually relied upon as the basis of comparison is hopelessly shot with holes, there is certainly no “abuse of discretion” and no arbitrariness if the application is refused. “It was certainly permissible for the inspector, if indeed it was not his duty, to examine the official records of the customs office to ascertain whatever they might disclose as to the disposition of the ease.” Tang Tun v. Edsell, supra. And it was certainly no denial of a fair hearing if the refusal of admission is based on such a vital1 and glaring inconsistency in the testimony.

The refusal of the District Court to issue a writ of habeas corpus is sustained, and its judgment is affirmed.