author: RUDKIN, Circuit Judge.

text:
    PUGET SOUND POWER & LIGHT CO. v. CITY OF SEATTLE et al.
    (Circuit Court of Appeals, Ninth Circuit.
    April 13, 1925.
    Petition for Rehearing Denied May 18, 1925.)
    No. 4340.
    1. Equity <@=»299 — Filing of supplemental bill not a waiver of error in ruling on original bill.
    The filing of a supplemental hill, the office of which is to bring before the court matters arising after the filing of the original bill or not then known to complainant, is not a waiv-, er of error in a previous ruling dismissing the original bill.
    2. Appeal and error <@=>154(1)— Payment of taxes after decree dismissing bill to require their collection from another held not to prevent appeal therefrom.
    The payment of taxes by a property owner, under protest, after entry _ of a decree dismissing a suit to require their collection from the property taxed, held not to end the controversy and entitle defendants to dismissal of an appeal therefrom.
    3. Street railroads <@=13 — Contract by city to pay taxes on railway property purchased held valid.
    The contract under which the city of Seattle purchased complainant’s street railway lines having been held valid by the Supreme Court of the state prior to its consummation, a provision thereof, also embodied in the deed and bill of sale which the city accepted, by which it agreed, as part of the consideration, to pay a specified portion of the taxes assessed against the property for the then current year 1919, held to create a valid and enforceable obligation.
    4. Street railroads <@=>13 — City held subject to suit to enforce contract to pay taxes.
    Where a city, as part consideration for property purchased, contracted to pay a specified portion of the taxes assessed against it prior to its conveyance, as between itself and the seller, it became primarily liable for such taxes, and the seller a mere surety, with the right before payment of the taxes, to maintain a suit in equity to compel their payment by the city.
    5. Taxation <@=>531 (2) — Surety compelled to pay taxes held subrogated to tax lien.
    A seller of property, compelled to pay taxes assessed against it which the purchaser contracted to pay, to prevent a sale of its other property, held entitled to subrogation in equity to the tax lien on the property.
    Appeal from the District Court of the United States for the Northern Division of the Western District of Washington.
    In Equity. Suit by the Puget Sound Power & Light Company against the City of Seattle, the County of King, W. W. Shields, as Treasurer of King County, and Matt W. Starwieh as Sheriff of King County. Decree for defendants, and complainant appeals. Reversed as to defendant City of
    Seattle, and affirmed as to other defendants.
    For opinions below, see 300 F. 441, 443.
    James B. Howe, Hugh A. Tait, and Edgar L. Crider, all of Seattle, Wash., for appellant.
    Thomas J. L. Kennedy and Geo. A. Meag-her, both of Seattle, Wash., for appellee City of Seattle.
    Ewing D. Colvin and Howard A. Hanson, both of Seattle, Wash., for appellees County of King, W. W. Shields, and Matt Star-wieh.
    Before ROSS, HUNT, and RUDKIN, Circuit Judges.
   RUDKIN, Circuit Judge.

On and prior to December 31,1918, the Puget Sound Power & Light Company, hereinafter referred to as the company, was the owner of a street railway system in the city of Seattle. On the above date the city enaeted Ordinances Nos. 39025 and 39069 with a view of purchasing and acquiring the street railway system. The first ordinance authorized a bond issue in the sum of $15,000,000 to pay for the property, and the second prescribed the terms and conditions of the contract of purchase including the form of the contract itself. The contract, as prescribed by ordinance, contained the following recitals and provisions, among others:

“For and in consideration of the covenants and agreements hereinafter contained, and the considerations hereinafter expressed, the company agrees to sell to the city and the city agrees to buy the property for the sum of fifteen million dollars ($15,000,000) in utility bonds, authorized by said Ordinance No. 39025, payment to be. made in the manner and subject to the terms and conditions hereinafter expressed.”
“That state, county and municipal taxes levied against the property for the year 1919 shall be paid, before the same shall become delinquent, by the respective parties hereto, in amounts proportional to the respective periods of time that said parties are respectively in possession of said property during the year 1919.”

It was further provided that in case the agreement or any provision thereof, the ordinance authorizing the agreement or any provision thereof, or the ordinance providing for the issuance of utility bonds or any provision thereof, should be declared invalid by the courts on appeal, the agreement should cease and terminate forthwith, unless the invalidity could be corrected by the passage of appropriate legislation at the 1919 session of the state Legislature, or, in a proper case, by the passage of appropriate ordinances by the city council' of the city of Seattle, within 60 days after the decision on appeal. Soon after the enactment of this ordinance,- an action was commenced in the state court by a taxpayer of the city against the city and the company to enjoin the city and company from entering into the contract for the purchase of the street railway system as authorized by ordinance. Other taxpayers intervened, and upon final hearing the court dismissed the complaint. An appeal was taken to the Supreme Court of the state, where the judgment was affirmed by an opinion under date of March 5, 1919. Twichell v. Seattle, 106 Wash. 32, 179 P. 127. On March 31, 1919, the company conveyed the street railway system to the city by deed and bill of sale, each containing the following provision:

“It is also further agreed between the parties hereto that if at the time of the delivery of this deed any lien shall have attached to the property or any part thereof, for the year 1919,. for any tax for the year 1919, such lien shall not constitute a breach of warranty and that if such tax shall become collectible the same shall be paid before the same shall become delinquent by the respective parties hereto in the amounts proportionate to the respective periods of time that said parties are respectively in possession of said property during the year 1919.”

In the meantime, on March 15, 1919, the State Tax Commissioner of the state assessed the street railway property as personal property for the purposes of taxation for the year 1919. This was the earliest date at which the street railway property had ever been assessed during the existence of the office of State Tax Commissioner. Pursuant to this assessment, the county commissioners of King county, in which the property was situate, levied taxes for state, county, school district, and city purposes, amounting to approximately $400,000. The company then instituted suit against King county and the city, in the state court, attacking the validity of the assessment and the taxes levied pursuant thereto. It prayed in its complaint that if the taxes should be held valid the city should be required to pay its portion and the company its portion in accordance with the contract between the parties. The city filed a cross-complaint against the company and the county. In the cross-complaint it pleaded the contract for the purchase of the property and the provision of the contract in respect to the payment of taxes, also the execution of the deed delivered by the company and accepted by the city, and its provision in respect to taxes, and alleged that, if the taxes should be held valid, the city was obligated to pay three-fourths and the company one-fourth thereof, and prayed that a decree be entered accordingly. The Supreme Court of the state upheld the validity of thé taxes but made no adjudication as to an apportionment between the company and the city. Puget Sound P. & L. Co. v. Seattle, 117 Wash. 351, 201 P. 449, 207 P. 689. After the rendition of this decision the company requested the city to join in paying the taxes under protest, but the city made no response. The company and the city then joined in a writ of error from the Supreme Court of the United States to review and reverse the decree of the Supreme Court of the State, but the decree of the Supreme Court of the state was affirmed. Puget Sound Co. v. King County, 264 U. S. 22, 44 S. Ct. 261, 68 L. Ed. 541. The county treasurer of King county then made demand upon the company for the payment of all such taxes with interest at the rate of 15 per cent, per annum from March 15, 1920. The company again requested the city to join in making payment, hut the city again refused. The company then offered to pay its share of the taxes, either to the city, to be used by the city in making payment of the full amount of the taxes, or to pay its share of the taxes to the county treasurer. The county treasurer refused to accept from the company any portion of the taxes less than the whole and notified the company that unless the taxes were paid before a day certain he would issue a warrant of distress therefor. The company notified the treasurer that the street railway property was subject to a specific lien for the taxes, that the taxes could be realized by resorting to the street railway property, and that the, county treasurer had no right to proceed against other property of the company not subject to the specific lien. , The county treasurer then issued a warrant of distress to the sheriff of King county. The sheriff demanded full payment of all taxes from the company with interest and costs. He refused to accept the offer of the company to pay the state, county, and school district taxes, with interest and costs, unless the company would also pay the city taxes with interest and costs. He likewise refused to proceed against the street railway property, subject to the specific lien of the taxes, in order to collect such taxes, 'but on the contrary levied upon other property of the company upon which all taxes due had already been paid, and advertised the same for sale to satisfy the claim for taxes on the street railway property for the year in question.

On the foregoing facts the company filed its bill of complaint in the court below against the city, the county, the county treasurer, and the sheriff, praying for an injunction restraining the city from breaching its contract to pay the taxes to the taxing officers of the county, and restraining the taxing officers of the county from imposing a lien upon property of the company which was not subject to the lien of the taxes, and requiring such officers to collect the taxes out of the property subject to the lien, and for other and general relief. A motion to dismiss was interposed by the city and a like motion by the county and its officers. Speaking generally, the grounds of the motions were that the bill of complaint did not state facts sufficient to constitute a cause of action in equity; that the court had no jurisdiction of the subject-matter of the action; that the company had a plain, speedy, and adequate remedy at law; that there was a misjoinder of parties; and that the bill of complaint was multifarious. The ease came on for hearing on the motion for a temporary restraining order and on the motions to dismiss. The motion for a temporary restraining order was denied. The motions to dismiss were granted for the reasons that the bill of complaint was multifarious, in that the relief sought against the county and its officers was equitable, whereas the relief sought against the city was based on contract and therefore legal; that the court was without jurisdiction to restrain the county officers from collecting the taxes; and that the company had a plain, speedy, and adequate remedy at law.

Thereafter the company filed an amended and supplemental bill of complaint against the city alone; alleging, among other things, that the company and the Old Colony. Trust Company, mortgagee trustee, had paid in full the taxes upon the street railway property for the year 1919, with interest and costs, in order to save and protect the other property of the company levied upon hy the sheriff under and by virtue of the distress warrant, and asked, in addition to the other relief sought, that the company be subrogat-ed to the lien of the taxes on the street railway property. Upon the filing of the amended and supplemental bill of complaint agdinst the city, a decree was entered dismissing the- original bill of complaint as against the county and its officers. A motion was then interposed by the city to dismiss the amended and supplemental bill of complaint, and the motion was granted on the ground that the company had a plain, speedy, and adequate remedy at' law. A final decree was thereupon entered dismissing the amended and supplemental bill of complaint against the city, but without prejudice to the right of the company to proceed at law.

The county and its officers have interposed a motion to dismiss the appeal upon two grounds: First, because the payment of the taxes leaves no subject of' controversy between the company and these appellees; and, second, because the filing of the amended and supplemental bill of complaint constituted a waiver of any error in the ruling on the motion to dismiss the original bill of complaint. We will consider the second objection first.

No doubt, as a general rule, the filing of an amended complaint after a ruling on motion or demurrer to the original complaint is a waiver of any error in the ruling on the original complaint because the amended complaint supersedes the original complaint for all purposes. But this is not true of a supplemental pleading. The office of the latter is to bring before the court matters occurring after the filing of the original complaint or not then known to the party, and the only necessary parties to’ the supplemental complaint are those who may be affected thereby. The question before the court, therefore, turns upon the question whether the amended and supplemental complaint here was an amended bill of complaint or a supplemental one only. We confess, an inspection of the pleading' would lead one to the former conclusion because the new pleading sets forth everything contained in the old one and some new and additional matter besides. But there is little in a name, and under the liberal rules now pre-' vailing, we are not inclined Jo' hold, contrary to the apparent intention of the company, that the new pleading superseded the old one for all purposes. As will presently appear, a decision of that question is not very material to the final disposition of the question now before the court. Nor do we think that the payment of the taxes necessarily ended the controversy so far as the county and its officers are concerned, because the company is still at liberty to claim relief as against them notwithstanding the payment of the taxes. Whether it is entitled to any such relief is, of course, a question to be determined upon the appeal. The motion to dismiss is therefore denied. •

The first question for consideration is: Was there a valid obligation on the part of the city to pay three-fourths of the taxes in question? We find no difficulty in solving that question. The city undeniably agreed to pay its proportionate share of the taxes on the street railway property for the year 1919 as a part of the consideration for the purchase of the system. This was one of the express provisions of the contract embodied in the ordinance authorizing the purchase. The city further agreed that if the ordinances or any provision thereof, or the contract or any provision thereof, were declared invalid by the courts on appeal, the contract would immediately cease and terminate, unless the invalidity could be corrected and validated by appropriate legislation. The Supreme Court of the state sustained the ordidances and the contract, and each and every provision thereof, in subsequent litigation with reference to which the parties contracted. This was the construction placed upon the decision of the Supreme Court by the city and its officers, for immediately thereafter the city accepted a conveyance of- the property subject to its proportionate share of the taxes which it assumed and promised to pay. In subsequent litigation the city again asserted its obligation to pay three-fourths of the taxes, if valid, and there was no repudiation or denial of this obligation until the validity of the taxes was placed beyond further question hy the final decision of the Supreme Court of the United States. And in holding that the obligation on the part of the city to pay a part of the taxes was a valid one, we do not find it necessary to rest our decision upon any ground of estoppel. • The Supreme Court of the state held that the city council of the city had authority to make the purchase of the system without being first authorized so to do by a vote of the people, and if the city counsel had authority to bind the city as to one part of the consideration, it had the same authority to bind it as to every other part of the consideration. Whether this obligation was a general one, or merely an obligation to pay from the revenues of the system, we need not inquire, as that question does not arise at the present stage of the proceedings. The city, by reason of its contract of purchase and the acceptance of conveyances containing an agreement on its part to pay its proportionate share of the taxes, became primarily obligated to pay such proportionate share as between itself and the company, and for that portion of the taxes the city became the principal debtor and the company a mere surety. Solicitors’ Loan & Trust Co. v. Robins, 14 Wash. 507, 45 P. 39; University State Bank v. Steeves, 85 Wash. 55, 60, 147 P. 645, 2 A. L. R. 237; First State Bank of Binford v. Arneson, 109 Wash. 346, 186 P. 889; Union Mutual Life Insurance Co. v. Hanford, 143 U. S. 187, 12 S. Ct. 437, 36 L. Ed. 118. And, if the company, was a surety only, its right to file a bill in equity, before paying the debt, to compel the principal to, discharge the obligation, does not admit of question.

“After the debt for whieh a surety or guarantor is liable has become due, he may, without paying the debt and without being called upon by the creditor, file a bill in equity to compel-the principal to pay the debí, it being unreasonable that a surety or guarantor should always have a cloud hanging over him, ever though not molested for the debt. This principle is universally recognized, and has been applied to a great variety of circumstances.” Brandt, Suretyship Guaranty, § 245.

“A court of equity has jurisdiction to compel the principal to exonerate the surety or guarantor at the maturity of the debt, and it is not necessary that the promisor first pay any part of the debt himself, but the principal debtor who is ultimately bound for the debt may be required to discharge his obligation.

“This is an application of the same principle of equity whereby a surety at the suit of his cosurety may be required by a decree in equity to pay his contributory share to the creditor.” Stearns on Suretyship, § 281.

“No principle of equity is more familiar, or more firmly established, than that a surety, after the debt for which he is liable has became due, without paying, or being called on to pay it, may file a bill in equity to compel the principal debtor to exonerate him from liability by its payment, provided no rights of the creditor are prejudiced thereby.” Thomas v. St. Paul’s M. E. Church, 86 Ala. 140, 5 So. 508.

For these reasons we are of opinion that the original bill of complaint stated a cause of action against the city and that cause of action was cognizable in equity. Nor was there any misjoinder of parties or of causes of action. The relief sought against the the county and its officers was merely incidental to the relief sought against the city. Whether the company- was entitled to that relief or not we need not now inquire. Suffice it to say the company simply claimed that it was the duty of the county officers to proceed against the property primarily liable for the tax before resorting to the property of the company and it sought by injunction to compel them to discharge that duty. It was not a suit to enjoin the payment of a tax, and was in no sense a suit against the state. Clifford v. Miller (C. C. A.) 288 F. 537.

This brings us to the amended and supplemental bill of complaint. As already stated, it is there averred that the company and its trustee mortgagee were compelled to pay the taxes on the street railway property in- order to protect other property belonging to the company, and the company asked to be subrogated to the lien of the taxes. To this relief, in our opinion, it was entitled. In Murray v. O’Brien, 56 Wash. 361, 105 P. 840, 28 L. R. A. 998, the Supreme Court of the state, after quoting from Cottrell’s Appeal, 23 Pa. 294: “Subrogation is founded on principles of equity and benevolence, and may be decreed where no contract or privity of any kind exists between the parties. Wherever one not a mere volunteer discharges the debt of another, he is entitled to all the remedies whieh the creditor possessed against the debtor,” and from Chief Justice Marshall in Lidderdale v. Robertson, Adm’r, 15 Fed. Cas. No. 8,337: “When a purchaser has paid money for whieh others were responsible, the equitable claim which such payment gives him on those who were so responsible, shall be clothed with the legal garb with whieh the contract he has discharged was invested, and he shall be substituted, to every equitable intent and purpose, in the place of the creditor whose claim he has discharged” — said: “The right of subrogation under the better rule applies in cases where a party who has an interest in the property and who does not stand as a mere volunteer pays a debt owing in whole or in part by another, to protect his own rights or to save his own property. The remedy is no longer limited to sureties and quasi sureties, but is freely applied by courts of equity in all eases where good conscience and equity dictate that a debt paid by one under any sort of legal coercion ought to be paid by another.”

The decree dismissing the original and •supplemental bills of complaint against the city is therefore erroneous. In view of the payment of the taxes, the company does not suggest that it is entitled to any relief as against the county or its officers, aside from subrogation to the tax lien; nor do we think that it is entitled to any further relief as against them.

The decree is therefore reversed as to the city of Seattle and affirmed as to the other appellees, and the case is remanded to the court below for further proceedings in accordance herewith.


source: Caselaw Access Project

author: KENYON, Circuit Judge. STONE, Circuit Judge

license: Public Domain

text:
    KANSAS CITY FIBRE BOX CO. et al. v. CONNELL.
    (Circuit Court of Appeals, Eighth Circuit.
    March 25, 1925.)
    No. 6759.
    1. Courts <§=>366(23) — State Supreme Court decisions, construing state statutes, binding on federal courts.
    Decisions of the Supreme Court of Kansas, construing state Workmen’s Compensation Act, are binding on the federal courts.
    2. Master and servant <§=>373 — Injury by pranks of youthful coworkers is one “arising out of employment.”
    Under Kansas Workmen’s Compensation Act, employer, who places boys as coworkers with others in hazardous employment, is charged with what may happen from their curiosity, zeal, vigor, and boyishness, and such risk is reasonably incident to employment, and if injuries result through curiosity or pranks, such as boys of immature age are wont to indulge in, injury is one “arising out of employment.”
    3. Master and servant <§=>373 — Injuries by sportive acts of fellow workmen independently of employment do not “arise out of employment.”
    Injuries caused by some sportive act of fellow workmen, independently of and disconnected from performance of any duty, do not “arise out of employment,” within workmen’s compensation statutes.
    ■4. Master and servant <§=>373 — Injury to em-ployé at work, due-to scuffle with fellow employe, held one “arising out of employment.”
    Evidence that employe, while operating machine, was interfered with by play of fellow employé, and in resisting same, without ceasing work, scuffle took place, as result of which claimant’s hand became engaged in knives of machine, held to show injury was one “arising out of employment,” and hence compensable under Kansas Workmen’s Compensation Act.
    Stone, Circuit Judge, dissenting.
    In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.
    Action by Raymond Connell against the Kansas City Fibre Box Company and others, removed from the state court. Judgment for plaintiff on directed verdict, and defendants brings error.
    Affirmed.
    ' J. K. Cubbison, of Kansas City, Mo. (William G. Holt, of Kansas City, Mo., on the brief), for plaintiffs in error.
    T. F. Railsback, of Kansas City, Kan. (J. H. Brady, of Kansas City, Kan., on the brief), for defendant in error.
    . Before STONE and KENYON, Circuit Judges, and SCOTT, District Judge.
   KENYON, Circuit Judge.

This action is one brought. by Raymond Connell against plaintiffs in error under the Workmen’s Compensation Act of Kansas (Laws 1917, e. 226), to recover for personal injuries occurring March 21, 1923, while Connell was working in the manufacturing plant of plaintiffs in error on what is known as a corner cutting machine, being a device for trimming and cutting corners of boxes by means of sharp knives operated by power. .His left hand became involved in said machine, and the second, third, and fourth fingers were cut off. It was claimed in the 'petition that he was entitled to compensation in the sum of $3,400 under the terms of said Workmen’s Compensation Act. The case was commenced in the’ district court of Wyandotte county, Kan., and by defendant removed to the United States District Court for the District of Kansas. At’ the conclusion of the testimony the District Court directed a verdict for plaintiff in the sum of $585, which the court computed as the amount due under the act. The case is here on writ pf error, based upon a number of assignments. However, only one question is involved on this writ, and that is: Did the injury to Raymond Connell result “by accident arising out of and in the course of his employment” ? The question is further narrowed by the undisputed situation that the injury was the result of an accident and that it was “in the course of employment.” It is the position of plaintiff in error that the injury was the result of sportive acts on the part of defendant in error and his eoworker, and hence did not arise out of the employment.

The provision of the Workmen’s Compensation. Act of Kansas upon which this claim is based is as follows;

“The Obligation. If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workmen in accordance with this act. Save as herein provided no such employer shall be liable for any injury for which compensation is recoverable under this act.” Laws Kan. 1917, e. 226, § 27.

The phrase “arising out of and in the course of employment” is borrowed from the English Workmen’s Compensation Act. That country early recognized the injustice of placing upon the employé all the burdens of industrial accidents, and sought to get away from the common-law rules of negligence as a basis of recovery. Underlying these acts, now adopted by numerous states, is a more humanitarian aspect toward men who work in great industries, and there has been a gradual growth and development of the law in this country along that line. These enactments are based on principles of natural justice, and are to provide for limited recoveries by workingmen in hazardous industries, even though there may be no negligence on the part of the employer, and though there may be negligence on the part of the employe. They are of benefit both to employer and employé, in that it relieves them from the great expense and uncertainty of litigation. Where machinery is destroyed or injured in industry, it is a part of the burden of industry to supply or repair such machinery. Why should the same theory not apply as far as practicable, where human machinery is injured in carrying on the work? There is economic loss in both eases. The burden is one of industry, and should not all be carried by the employé. The work of the hazardous industry cannot be successful, except by the effort of both employer and employé. If the employé suffer an industrial accident and is crippled thereby, there is no justice in turning him out without compensation, often leaving to him only the future of a corner beggar, because forsooth there may have been some little negligence on his part contributing to the injury, or inability to prove negligence on the part of the employer resulting in his injury.

The Supreme Court of the United States in New York Central Railroad Co. v. White, 243 U. S. 188, 197, 37 S. Ct. 247, 250 (61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629), has so well expressed the theory of this legislation that we quote from it: “In support of the legislation, it is said that the whole common-law doctrine of employer’s liability for negligence, with its defenses of contributory negligence, fellow servant’s negligence, and assumption of risk, is based upon fictions, and is inapplicable to modern conditions of employment; that in the highly organized and hazardous industries of the present day the causes of accident are often so obscure and complex that in a material proportion of cases it is impossible by any method correctly to ascertain the facts necessary to form an accurate judgment, and in a still larger proportion the expense and delay required for such ascertainment amount in effect to a defeat of justice; that under the present system the injured workman is left to bear the greater part of industrial accident loss, which because of his limited income he is unable to sustain, so that he and those dependent upon him are overcome by poverty, and frequently become a burden upon public or private charity; and. that litigation is unduly costly and tedious, encouraging corrupt practices, and arousing antagonisms between employers and employes.”

The Kansas act is similar to the acts of the various states. It is not an insurance statute, but has its limitations as to liability. This case arising under the Kansas statute, we would be bound by a construction given to the phrase in question by the Kansas court of highest authority. Thq decisions of the Supreme Court of Kansas bearing thereon we refer to hereinafter. That the Kansas courts are inclined to a liberal construction of the act to carry out its underlying purpose, we may say parenthetically, is evidenced by certain words of the opinion of that court in Messick v. McEntire, 97 Kan. 813, 816, 156 P. 740, 741, with reference to a case where they decided contributory negligence of claimant was no defense, viz.: “Nothing save his deliberate intention to cause the injury, his willful failure to use guards or protection provided for him, his deliberate breach of some statutory regulation, or his intoxication can deprive him of his statutory right to compensation for an injury.”

In instructing a verdict in this case the learned District Court drew a distinction between the law applicable to workmen of mature years and boys, saying: “And, if put on as strong ground as you are contending for, any one who employs boys the age of this boy, or people of the age and intelligence of the party who was working with him, knows they aré going to be playful anpl reckless, and so on, know it when they employ them.”

The writer of this opinion believes the distinction drawn by tbe District Court is sound, and that, if an employer places boys as eoworkers with others in hazardous employment, he is charged under these Workmen’s Compensation Acts with what may happen from the curiosity, zeal, vigor, and boyishness of said-boys; that such is a risk reasonably incident to the employment, and if injury result to an employé therefrom during the progress of the work in which he is employed, through the curiosity or pranks such as boys of immature age are wont to indulge in, and which the employer must be held to know of when he employs them, the injury is one “arising out of. the employment.” The difficulty as to that theory in this case is that there is no evidence in this record that Connell or his eoworker, Mergen, were boys. Connell, the record shows, was 21 years of age and over. We find nothing in the record to show the age of Mergen. Certainly a person over 21 years of age can scarcely be placed in the category of boys.

The Wisconsin Industrial Commission allowed a claim in the ease of a 14 year old boy who was returning to work after lunch, who went aside from a direct route, and out of curiosity placed his hand under a machine hood, and lost his forearm by the action of the knives. The Wisconsin Commission said that the natural curiosity of a boy of 14 years must be taken into consideration, that a common-sense construction of the law should be given, and that the responsibility for such accident should be placed on the employers.who . put such children in places of danger, rather „ than that the children should bear the entire loss themselves.

In Hulley v. Moosbrugger, 87 N. J. Law, 103, 93 A. 79, it appeared that young men and boys were employed, and the court said: “It is but natural to expect them to deport themselves as young men and boys, repletwith the activities of life and health. Por workmen of that age, or even of maturer years, to indulge in a moment’s diversion from wo3;k, to joke with or play a prank upon a fellow workman, is a matter of common' knowledge to every one who employs labor. At any rate, it cannot be said that the- attack made upon the decedent was so disconnected from the decedent’s employment as to take it out of the class of risks reasonably incident to the employment of labor.” This case, it is true, was reversed by the Court of Errors and Appeals of New Jersey, 88 N. J. Law, 161, 95 A. 1007, L. R. A. 1916C, 1203, the court holding that an employer was not liable to make compensation for injury to an employé which was the result of horseplay or skylarking, so called, and that such accident did not arise out of the employment. There is much of common sense, however, in the language of the court in the opinion in 87 N. J. Law, 103, 93 A. 79.

28 Ruling Case Law, § 98, pp. 810, 811, says: “It has been noted that the, intention of the statute may be said to be to impose in a general fashion a duty of care on the employer, or to charge him with knowledge that injury may result to his employees unless active preventive measures be taken, and there can be no doubt but what this activity extends in a measure to the prevention of ‘skylarking’ or ‘horseplay,’ especially where the appliances of the business, such as compressed air hose, may fall into the hands of youthful or irresponsible fellow servants.” However, as our decision is not based on this, ground, it is useless to pursue this very interesting subject.

Workmen’s Compensation Acts have been, productive of a multiplicity of decisions in the British courts and in the- various courts-of the United States, embracing the construction of the term in question. There has been much refinement of reasoning and confusion of the doctrines of negligence in these decisions, where it properly has no place, until in trying to evolve any rule as a safe guide-to determine when an accident is one “arising out of the employment” one is lost in a., labyrinth of judicial utterance. We refer to a few only of the many cases in this country where the term “arising out of employment” has been considered.

One of the leading cases, perhaps more often referred to than any other, is In re McNicol, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306, where the court referring to-the injury said: “It arises ‘out of’ the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between, the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be-seen to have followed as a natural incident, of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure-occasioned by the nature of the employment,, then it arises ‘out of’ the employment. But it excludes an injury which cannot fairly be-traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have-been equally exposed apart from the employment. The causative danger must be peculiar-to the work and not-common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.”

In Verschleiser v. Joseph Stern Son, Inc., et al., 229 N. Y. 192, 197, 128 N. E. 126, 128, where an abattoir worker, resenting a sudden assault by a coemploye, who threw a piece of flesh, used the flesh in striking another employe, believed to be the assailant, who in turn kicked claimant, it was held that it was an accident arising out of the employment. The court said: “The Workmen’s Compensation Law (Consol. Laws, c. 67) should be construed broadly. Compensation under it does not depend on any fault of the master or any negligence of the servant. The law was enacted to do away with the defenses which had governed the law of master and servant. The question in each ease arising under the Workmen’s Compensation Law is: ‘Was the injury received while engaged in the master’s business?’ If the servant had left his employment and was willfully pursuing designs of his own, he would not be entitled to compensation. The man who initiates an assault is doing a willful thing, but this cannot be said of the man who, surprised by physical assault or insult, reacts and in self-protection strikes another. His act is as involuntary as that of closing the eye to avoid dust, the same action and reaction which the law recognizes in its definition of manslaughter.” The court further called attention to the fact that the injury was the result of provocation engendered between employes in the course of their employment on the premises of their employer while engaged in their daily work.

In Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344, a. driver brought his horses into the employer’s stable, where a fellow workman assisted him in unharnessing them; it being a part of claimant’s employment to take care of the horses. He protested against a fellow workman’s using too much water on the horses and some controversy arose. The eoemployé then turned the hose on him. Later claimant told him not to do that again, whereat the fellow workman slapped him on the shoulder, and as claimant turned around his finger struck in claimant’s eye, causing injuries. The court held that the injury was accidental and arose out of the course of employment.

In Markell, Respondent, v. Daniel Green Felt Shoe Co. et al., 221 N. Y. 493, 116 N. E. 1060, on appeal from Appellate Division of the Supreme Court in the Third Judicial Department (175 App. Div. 958, 161 N. Y. S. 1134), claimant received injuries resulting in the loss of an eye through the act of an employe who had been repairing machines in defendant’s plant, and he approached claimant in a dark room, placed his arms about his neck, and drew his head forward onto a lead pencil in his pocket in such manner that the lead penetrated the eyeball. It was claimed that the act causing the injury was in effect skylarking or horseplay. The court held it was within the scope of employment.

In Bryant et al. v. Fissell, 84 N. J. Law, 72, 77, 86 A. 458, 461, the court said: “We conclude, therefore, that an accident arises ‘out of’ the employment when it is something the risk of which might have been contemplated by a reasonable person, when entering the employment, as incidental to it.

* ^ A risk is incidental to the employment when it belongs to or is connected with-what a workman has to do in fulfilling his. contract of service.’?

In State ex rel. Anseth v. District Court of Koochiching County et al., 134 Minn. 16, 158 N. W. 713, L. R. A. 1916F, 957, a bartender in defendant’s saloon in the city of" International Falls was struck in the eye by-a drinking glass thrown by a drunken patron of the saloon. There was no personal-, altercation, and the drunken man did not know what he was doing. It was held that the accident was one arising out of plaintiff’s. employment as bartender in the saloon.

In Griffith v. Cole Bros, et al., 183 Iowa, 415, 427, 165 N. W. 577, 581 (L. R. A. 1918F, 923) the court said: “The words ‘out of’" involve the idea that the accident is in some sense due to the employment.” The words, “out of,” as used in the acts, refer to the origin or cause of the accident.

The extent to which the doctrine has been carried is illustrated by the interesting ease • of Foley v. Home Eubber Co., 89 N, J. Law, 474, 99 A. 624. Foley was in the employ of the Home Eubber Company as a special traveling salesman. It was necessary for him to visit the company’s London office, and he engaged passage on the steamship Lusitania and went down with it. It was held that this was an accident arising in the course of and out of his employment. See, also, Walther v. American Paper Co. (N. J. Sup.) 98 A. 264; Feda v. Cudahy Packing Co., 102 Neb. 110, 166 N. W. 190; Stertz et al. v. Industrial Ins. Commission of Washington, 91 Wash. 588, 158 P. 256, Ann. Cas. 1918B, 354; Western Indemnity Co. v. Pillsbury et al., 170 Cal. 686, 151 P. 398; Federal Rubber Mfg. Co. v. Havolic et al., 162 Wis. 341, 156 N. W. 143, L. R. A. 1916D, 968; Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509, L. R. A. 1916D, 970; Pace v. Appanoose Co., 184 Iowa, 498, 168 N. W. 916; Waters et al. v. William J. Taylor Co. et al., 218 N. Y. 248, 112 N. E. 727, L. R. A. 1917A, 347. If further investigation is desired, see L. R. A. 1918E, 498, where there are several pages of citations, and L. R. A. 1916A, where, commencing at page 23 there are found some 249 pages of citations on the various questions arising under Workmen’s Compensation Acts, including the construction given by various courts to the term in question here.

It is strenuously urged on the part of the plaintiffs in error that at the time of - this accident Connell and his coworker were engaged in sportive acts, which have been characterized by the courts as “horseplay,” and that consequently the injury was not one “arising out of employment.” Boyd on Workmen’s Compensation, § 476, states the rule to be that “injuries the result of a spirit of playfulness on the part of the injured servant or his fellows are generally held not received in the course of employment.” See Bradbury’s Workmen’s Compensation Law, p. 100.

Stuart v. Kansas City, 102 Kan. 307, 310, 171 P. 913, 914, quotes with approval from Workmen’s Compensation Acts, a Corpus Juris treatise by Donald J. Kiser, at page 79, as follows: “An employee is not entitled to compensation for an injury which was the result of sportive acts of eoemployés, or horseplay or skylarking, whether it is instigated by the employé, or whether the em-ployé takes no part in it. If an employé is assaulted by a fellow • workman, whether in anger or in play, an injury so sustained does not arise ‘out of the employment,’ and the employé is not entitled to compensation therefor, unless in a ease where the employer knows that the habits of the guilty servant are such that it is unsafe for him to work with other employés.”

In White v. Stockyards Co., 104 Kan. 90, 177 P. 522, the same doctrine is held, that ordinarily a master is not liable under the Compensation Act for injuries to workmen which have been caused through the mischiefs, pranks, and jokes of his eoemployés, unless. the master has knowingly permitted such pranks to continue. Same doctrine, Thomas v. Manufacturing Co., 104 Kan. 432, 437, 179 P. 372, 375 (6 A. L. R. 1145) although this language in that ease is significant: “The plaintiff’s participation in the use of the truck would not seem necessarily to bar her recovery; her conduct being of a kind to be expected in girls of her age, and the question of her want of care not being material, the action not being founded on her employer’s negligence.”

In Romerez v. Swift & Co., 106 Kan. 844, 847, 189 P. 923, 924, deceased turned aside from his work to engage in an altercation with a Mexican and was killed. The court says: “The fact remains ‘that he stepped side from his work and left his task to settle this matter of personal spleen. It cannot be held that in so doing he was in the line of his employment, or that the regrettable result arose out of such employment.” And in Peavy v. Contracting Co., 112 Kan. 637, 211 P. 1113, 29 A. L. R. 435, it was held that an employé could not recover of his employer under the Workmen’s Compensation Act for an injury inflicted, by the foreman in an assault upon the employé, unless the employer had reason to anticipate that injury would result if the two continued to work together.

Stark v. Wilson, Receiver, 114 Kan. 459, 462, 219 P. 507, 508, was a ease of where a street ear conductor was killed by a passenger, and the court said: “The accident must result from a risk naturally and reasonably incident to the employment. The risk must be within rational comprehension as an incident of the employment, and must be one to which the workman would not be equally exposed outside of the employment. It is not enough for the dependents to say the conductor would not have been killed if he had not been at his place on his car at the time he was stabbed. They must say he was killed because he was a street car conductor on duty, and so was overtaken by a hazard to which performance of his duty exposed him. In applying the tests, the decision of each case will necessarily depend on its own peculiar facts, and in this instance the precedents are not particularly helpful.”

These cases fairly show the construction put upon the act "by the Kansas courts, viz. that where employés turn aside from their work and engage in sportive acts, commonly referred to as “horseplay,” and the aeci-' dent is the result of injury received thereby, there cannot be recovery under the Workmen’s Compensation Act (barring question of immature boys heretofore referred to, and which we pretermit). That the courts are not unanimous on this question is shown by the following authorities:

In Leonbruno v. Champlain Silk Mills, 229 N. Y. 470, 473, 128 N. E. 711, 712 (13 A. L. R. 522), an employe, while devoting his time to work, was struck in the eye by an apple thrown hy a fellow servant engaged in horseplay. It was held the injury was one “arising out of and in the course of his employment.” The court said: “The risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master’s business. Many things that have no such tendency are done by workmen every day. The test of liability under the statute is not the master’s dereliction, whether his own or that of his representatives acting within the scope of their authority. The test of liability is the relation of the service to the injury, of the employment to the risk.”

In Stark v. State Industrial Acc. Commission, 103 Or. 80, 100, 204 P. 151, 157, the court said: “It might be remarked parenthetically that it is not to be supposed that a crew of men could be obtained, unless some of them during working hours would play practical jokes on their fellow workmen, especially if such men were red-blooded Americans.” See, also, Newport Hydrocarbon Co. v. Industrial Commission, 167 Wis. 630, 167 N. W. 749.

However the general rule of the authorities, and with which the Kansas decisions are in line, is well stated in Annotations to Workmen’s Compensation Acts, L. R. A. 1918E, 504, as follows: “The general rule, recognized by practically all of the courts, both under the English act and under the various American statutes, is that injuries eaused by some sportive act of fellow workmen, done independently of and disr connected from the performance of any duty of the employment, does not arise out of the employment within the meaning of the compensation statutes, and, consequently, no compensation will be allowed for such injuries.” This doctrine is supported by a great majority of the cases. Plaintiff in error in its brief adopts it as the correct rule; we think it is, and measure the case by it.

The line of demarcation between sportive acts of employes done independently of and disconnected from the performance of duty and those in a manner connected with-the performance of duty is difficult at times to distinguish, owing to the interweaving of the facts. Was the injury to defendant in error here the result of sportive acts, independent of and disassociated from the performance of any duty of the employment? This requires a close and careful analysis of the testimony. We set out some of the testimony bearing on this question.

From the testimony of defendant in error:

“Q. In what capacity were you working? A. I was cutting boxes.

“Q. You were cutting boxes. What do you mean by cutting boxes ? A. I was working on a comer cutter.

“Q. What does- that do? A. That cuts boxes, in' order to fold up.

“Q. By whom were you designated to that particular post? Who put you at that work? A. The Kansas City Fibre Box Company.

“Q. Do you know the name of the foreman? A. Mr. Jack; I don’t know his surname.

“Q. How long had you been engaged in that work? A. I had been engaged at that work for six or eight months.

“Q. On this particular day, what were you doing when this accident happened? A. I was working on my regular duties, cutting boxes, the same as ever.

“Q. And what happened? A. And I was working right along, and I seen my — the fellow that was working on the machine with me had my cap on- a stick, holding it up on a stick, and he was shoving in to me—

. “Q. Shoving in what to you? A. Shoving in boxes to me.

“Q. Where were you standing with reference to the machine? A. I was standing to left-hand side.

“Q. That the machine you were engaged at all the time? A. No; I worked on several machines.

“Q. That particular day was that machine ? A. That particular day was that machine; yes.

“Q. This man was shoving in to you, and what happened? A. He was holding my cap up on a stick, and I asked him for my cap, or said something to hipi — anyhow, I meant for him to give me my cap. I forget just what I said, and he kept it, holding it up on a stick like he was going to throw it into the scrap pile; that is what I thought, though I don’t know that he was going to throw it into the scrap pile; so I pulled a little skull cap off my head, he had put on-there some time during the day his own self, and put it on the machine here, like as if I was going to cut it — put it on the table that we were working on; so he just reached over with his left hand and shoved that box in and cut the cap—

“Q. Speak louder. A. He just reached over and shoved that box in, and cut the skull cap, I suppose, that was on the box, you see, and then he was going to cut mine, and I just stepped over between him and the machine, to the right, and he [eatehed] me here, and clinched me by the overalls and bib and shirt, and shoved me, and so I was almost in a sitting position when he give me another little quiet shove, and I [throwed] my hand back to catch, in order to keep my head or shoulders from going into the machine, and I got my hand cut off, and I seen my hand cut off, and felt it, too, but I seen my fingers cut; so I just asked him to let me go, or something I says to him, and I just held my hand up like this, and I says, ‘Let me go,’ and showed him my hand; so he let me loose, and that was-'all there was to it.”

From a statement made by defendant in error after he was hurt, which was used in cross-examination, the -following appears:

“Q. I was flipping or turning fiber board at comer cutter machine? A. Yes.

“Q. Nick, a Greek, operated machine, and I was helper; but I traded places [with] Nick, and fed machine part of the time. A. I understand.

“Q. I was experienced on this machine. Close to quitting time— A. Wait a minute, please.

“Q. I was experienced on this machine? A. Yes, sir.

“Q. Close to quitting time; I had been wearing Nick’s cap? A. Yes, sir.

“Q. He hadn’t been wearing it for a few days? A. Yes, sir.

“Q. Nick was shoving in, and I was flipping or turning? A. Yes, sir.

“Q. Nick took my street cap, which was on springs in front of machine, and made believe he was going to do something with it, throw it away or something? A. Wait a minute, please.

“Q. Nick took my street cap, which was on springs in front of machine, and made believe he was going to do something with it, throw it away or something? A. Yes, sir.

“Q. I put his cap on the table on board, and Nick shoved it in? A. Yes, sir.

“Q. And cut his own cap'? A. Yes, sir.

“Q. Then he made a move as if he intended to put my cap under knives? A. Yes, sir.

“Q. And I jumped up on the table of the machine in a sitting position— A. Yes, sir.

“Q. To keep Nick from putting my cap in under knives? A. Yes, sir.

“Q. And he took hold of me and shoved me? A. Yes, sir. * * *

“Q. Nick had not played around machines? A. Yes, sir.

“Q. We might have joked each other or tapped each other away from machines— A. Yes.

“Q. I don’t think foreman saw us scuffling? A. Wait a minute.

“Q. I don’t think foreman saw us scuffling' ? * * *

“Q. Anyway, you had been wearing Nick’s cap, hadn’t you? A. Yes.

“Q. And you put it in the machine and cut the comer off it? A. No, sir.

“Q. Well, the comer was cut off wasn’t it? A. I don’t know; he shoved it towards the machine to be cut.

“Q. Well, you had a cap, too? A. Yes.

“Q. And he took hold of your cap, did he? A. Yes.

“Q. And you got into a scuffle about the caps? A. Yes.

“Q. And he had ahold of your leg, didn’t he? A. No, sir.”

His eoworker, Mergen, testifies to substantially the same thing, as follows:

“Q. Well, what about the caps? A. Well, I had a little white cap that hung on the screen all the time; I wore it part of the time, and he wore it part of the time.'

“Q. That was your cap that he wore part of the time, and you wore part of the time ? A. Yes, sometimes.

“Q. What were you doing with the cap? A. I have fiber boards shoved under the machine to cut the comers, and he threw the cap on the board to cut the comer off. •

“Q. And what did you do? A. I just pulled it out and reached and got his cap; I done just like I was going to throw it—

“Q. You took his cap? A. Yes.

“Q. And pretended you were going to cut it, is that it? A. Yes.

“Q. What happened? A. Well, he blundered to get hold some way or other, and his hand slipped under this.

“Q. Did you have hold of him? A., Playfully.

“•Q. Playfully. But were you wrestling and seuffling? A. Yes; wrestling and scuffling.”

On cross-examination Mergen testified that while the cap incident was going on the machinery was running. It appears that at the time the cap was cut he shoved a board, in the due process of his work, upder the knives, and the cap went with it. He also testified that defendant in error jumped on the table, that he was stooping down to get hold of his leg, and that defendant in error became overbalanced in some way, and his hand went in the knives.

Does the testimony, with all its fair ánd natural inferences, indicate that defendant in error’s injuries were received “independently of and disconnected from the performance of any duty of the employment”? It must be borne in mind that at the very time of this injury defendant in error was actually engaged' in the performance of a duty of his employment. He was operating a dangerous piece of machinery with his eoworker, Mergen, the Greek. His attention to his work was attempted to he diverted by the act- of Mergen holding his cap on a stick. His duty to his employer was to keep on working, and to stop the interference with his work by Mergen. This he attempted to do. He pulled a skull cap of Merg’en’s off his head and put jt on the machine, or a table in front of it, and Mergen shoved the box in and cut the cap. The shoving of the box was a part of Mergen’s work. Connell, perhaps, did not choose the best way to stop Mergen’s interference with his work. It may have been crude. He reciprocated to some extent the play as to the caps started by Mergen. If he ceased work at all, it was but momentary. There was no turning aside from the machine and from the work, and engaging in a fight, a scuffle, or horseplay, as in the ease of Romerez v. Swift & Co., 106 Kan. 844, 189 P. 923, hereinbefore referred to, and in the hose cases, Tarpper v. Weston-Mott Co. et al., 200 Mich. 275, 166 N. W. 857, L. R. A. 1918E, 507, Federal Rubber Mfg. Co. v. Havolic et al., 162 Wis. 341, 156 N. W. 143, L. R. A. 1916D, 968, and also as in De Filippis v. Falkenberg et al., 170 App. Div. 153, 155 N. Y. S. 761. It is as reasonable to suppose that he was trying to stop the interference with his work as that he was engaging in any personal horseplay with his eoworker. His injury certainly was not due entirely to the scuffling or playing. It was due to a combination of the playful acts, if they can be so designated, and the employment in connection with the dangerous machine. The acts were not entirely independent of or disassociated from the performance of his duty. His eoworker was evidently trying to delay him and bother him. He was trying to stop this interference. The sportive acts of the workman, at least as to defendant in error, were not independent of their work. If Mergen had attempted to stop his work at the machine he certainly would have been carrying out his duty to his employer in trying to prevent him from so doing. Here Mergen kept on with his work during the attempt to bother and annoy Connell. In nearly all of the cases where the sportive acts are held to take the ease out of the rule of injury arising out of the 'employment, there was a turning away from work and engaging in a personal encounter or horseplay, so called, not connected in any way with the performance of any duty to the employer, but as the result of mere personal desire or whim. Here Connell in part, at least, was serving his employer by trying to stop interference with his work, and Mergen combined sportive acts with his work.

While in the Stuart v. Kansas City Case, 102 Kan. 307, 171 P. 913, heretofore referred to, the party injured was engaged in his work, that question does not seem to have been considered by the court, but the decision was based on the fact that the custom of pranks and jokes on the part of the injured party’s fellow workman was known to his immediate superiors. Injury in that case was not the result of any effort by Stuart to prevent the party interfering with his work, and the company employe causing the injury was . doing something entirely apart from his duties. The rule, stated in that case from Corpus Juris with approval, refers to injury sustained as the result of sportive acts. Here the injury sustained was not the result of sportive acts entirely disconnected from the employment. While the question is a close one, a careful analysis of the actual occurrence, and consideration of all the circumstances, shows, we think, that the alleged sportive acts of defendant in error and his coworker, were not “done independently and disconnected from the performance of any duty of the employment.” It would not seem that the broad purpose of the Workmen’s Compensation Acts should be defeated by a circumstance somewhat trivial such as presented here, where the parlies did not turn from their work and engage in the alleged horseplay, but where both were going ahead with their work, and one of them at least resorted to the sportive act as a means of preventing further annoyance or interference with his labor.

The judgment is therefore affirmed.

STONE, Circuit Judge

(dissenting). This is an action for personal injuries under the Workmen’s Compensation Act of the state of Kansas. From a judgment on a directed verdict, defendant sues this writ of error. The accident was caused by Connell throwing his hand in the way of moving knives on a box-cutting machine during a playful scuffle which arose between him and his fellow workman while they were working at the machine. The play arose over the caps of the two workmen and the threatened move of the other workman to pnt Connell’s cap where it would he cut by the knives. But one question- is presented here. That question is whether the master is liable, under the Kansas Workmen’s Compensation Act, for injuries resulting from playful pranks between workmen of age where the employer has not notice or knowledge of such habits or play and does not permit it. Of course, the answer to this question has to be sought in the proper construction to be given that act. The construction o'f a state statute is a matter of local law; therefore, the decisions of the Supreme Court of Kansas must be examined to ascertain whether that court has determined the question before us. If it has, that decision is binding here.

There are several cases, not involving injuries from pranks or play, which state generally the view of the Supreme Court of Kansas as to how the cause or occasion of, the injury must be connected with the employment to come within the act. The most recent statement of this general (jharaeter is contained in Stark v. Wilson, Receiver, 114 Kan. 459, 219 P. 507, which was a suit, under the act, for death of a street ear conductor who had been stabbed by a passenger. The court, at page 462 (219 P. 508), said:

“The accident must result from a risk naturally and reasonably incident to the employment. The risk must be within rational comprehension as an incident of the employment, and must be one to which the workman would not be equally exposed outside of the employment. It is not enough for the dependents to say the conductor-would not have been killed if he had not been at his place on his ear at the time he was stabbed. They must say he was killed because he was a street car conductor on duty, and so was overtaken by a hazard to which performance of his duty exposed him.”

Also, see Peavy v. Contracting Co., 112 Kan. 637, 639, 211 P. 1113, 29 A. L. R. 435.

Fortunately, we are not left to apply such general statements of the rule to eases, like the present, where the injury is the direct-result of playfulness or pranks. The Kansas Supreme Court has considered liability from such causes in the cases of Thomas v. Manufacturing Co., 104 Kan. 432, 179 P. 372, 6 A. L. R. 1145, White v. Stockyards Co., 104 Kan. 90, 177 P. 522, and Stuart v. Kansas City, Kansas, 102 Kan. 307, 171 P. 913, and 102 Kan. 563, 171 P. 913. Stuart v. Kansas City, Kansas, 102 Kan. 307, 171 P. 913 (on rehearing 102 Kan. 563, 171 P. 913), was an eye injury to plaintiff from mortar thrown in sport by a fellow workman during the course of the work. The instruction of the trial court permitted recovery irrespective of the notice or knowledge of defendant as to the habit of the workman, who threw the mortar, to engage in dangerous play. Because of this error in the instruction, the case was reversed, the Supreme Court, at page 310 (171 P. 914), saying:

“A clear and concise statement of the law governing compensation for injuries to employees caused by play is found in Workmen’s Compensation Acts, a Corpus Juris treatise, by Donald J. Kiser (page 79), and is ps follows: ‘An employee is not entitled to compensation for an injury which was the result of sportive acts of eoemployees, or horseplay or skylarking, whether it is instigated by the employee, or whether the employee takes no part in it. If an employee is assaulted by a fellow workman, whether in anger or in play, an injury so sustained does not arise ‘out of the employment,’ and the employee is not entitled to compensation therefor, unless in a case where the employer knows that the habits of the guilty servant are such that, it is unsafe for him to work with other employees.’ The rule there declared is supported by Western Indemnity Co. v. Pillsbury, 170 Cal. 686; McNicol’s Case, 215 Mass. 497; Scott v. Payne Bros., 85 N. J. Law, 446; In re Loper (Ind. App.) 116 N. E. 324; Clayton v. Hardwich Colliery Co., 85 L. J. K. B. 292. Under these authorities the rule is that where a workman, known by his master to be in the habit of indulging in dangerous play with his fellow workmen, is retained in the master’s employ, the danger of injury from such play becomes an incident of the employment of the other workmen, and injury to any of the other workmen, while performing his regular work, caused by such play, comes within the provisions of the Workmen’s Compensation Act.”

In a short opinion denying a rehearing, the court accentuated its position (102 Kan. 563, 171 P. 913), by saying:

“The plaintiff has filed an application for a rehearing, and, in that application, asks that, if a rehearing is denied and the judg-’ ment stands reversed, the new trial be directed on the proposition on which the judgment -was reversed. The judgment was reversed on the ground that an instruction was erroneous because it did not submit to the jury the question of the defendant’s knowledge of the dangerously playful habits of William Deeds, a fellow workman with whom the plaintiff was working at the time of his injury.

“The judgment of reversal is adhered to, and a new trial is granted on the following questions: (1) Was the plaintiff injured by William Deeds, accidentally or in sport? (2) If the plaintiff was injured by William Deeds in sport, was William Deeds in the habit of indulging in dangerous play with his fellow workmen? (3) If William Deeds was in the habit of indulging in dangerous play with his fellow workmen, did the defendant have notice or knowledge of that habit ?”

To the same effect is the case of White v. Stockyards Co., 104 Kan. 90, 177 P. 522. Also, see statement in Monson v. Battelle, 102 Kan. 208, at page 213, 170 P. 801. Both the Stuart and the White Cases were instances of injuries to adults from the pranks of other adults.

Admitting that the above rule would govern if the injury was occasioned to and by an adult, defendant in error contends that a different application of the rale must be made as to children or youths. His position is that although there would have to be proof of notice and knowledge in the employer respecting the habit of dangerous play if the injury concerned adults alone; yet, as to children or youths, this notice and knowledge must be conclusively presumed to exist because the playfulness and recklessness of young people is universally known. His counsel well states this position as follows:

“The position taken by plaintiffs in error is, that the rale applies only in cases where the sportive characteristics of the employees are known to the employer or where - ‘horse play’ has become habitual. Granting that to be a true statement of the rale, the District Judge gave it proper consideration because the sportive characteristics of boys must always be known to the employer. Of men of mature years — no. That where the ■employees are all grown-up men of the world, to render the employer liable for their pranks it must be shown that ‘horse play’ is •or has been common. But the employer cannot close his eyes and say he does not know, .and has not seen what everybody else does know and has seen- — that ‘boys will be boys,’ .and boys will play, and until all the fun, all "the mirth, and the joy, and the happiness has been ground out of their lives by constant drudgery in the mills, they will continue to do so.”

The view of the able trial court is along .the same line and is strongly and clearly summarized hy counsel for defendant in error as follows:

“In directing a verdict in this case, he announced the same rule — ‘that the defendant in error would not have been injured by the scuffle but for his presence in the factory in association with other workmen.’ He announced the rale here that the defendant in error was brought by his work within the conditions of the zone of special danger. He announced the rule here that whatever men and boys will do when gathered together in such surroundings was one of the perils of the service. He announced the rule here that it' was but natural to expect them to deport themselves as young men and boys replete with the activities of life and health. He announced the rule here that for workmen of that age or even of maturer years to indulge in a moment’s diversion from work to joke with or play a prank on a fellow workman is a matter of common knowledge to every one who employs labor. He announced the rule that the claimant was injured not merely while he was in the factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life, and the risk of such associations and conditions were risks of the employment.”

The plaintiff here was a young man 21 years old at the time of accident. Without undertaking to draw the age line where the rule of notice and knowledge should be applied, if at all, I examine the Kansas decisions to ascertain if there is this difference as is contended.

Again, fortunately, the Kansas Supreme Court has decided as to this very distinction in the ease of Thomas v. Manufacturing Co., 104 Kan. 432, 179 P. 372, 6 A. L. R. 1145. The plaintiff there was a girl “about seventeen years of age” and was injured during the noon hour by falling from a small track upon which she and other girls were riding for amusement. There was conflicting evidence as to whether the master had knowledge of and had consented to such use of the track by these girls. As to that matter the court, at page 434 (179 P. 373), said: “The conflict of evidence as to the attitude of the company toward the' girls’ practice of playing with the tracks must of course be resolved in favor of the plaintiff.” After stating that it was necessary to recovery that the injury was “in course of” the employment and “arose out of” it, the court discussed each of those matters. As to the latter, „at page 437 (179 P. 374), it said:

- “Whether the plaintiff’s inj.ury arose out of her employment is a more difficult question. Injuries received in play are not usually capable of being so classified. Two illustrative eases are reported, passed upon by a commission and a committee of arbitration, which are in some respects quite similar to that under consideration. Socquet v. Connecticut Mills Co., Conn. W. C. C. C. Digest, 1914-1916, p. 653; Thompson v. W. L. Douglas Shoe Co., 2 Mass. W. C. A. 145. If the present ease is to be taken out of the general rule, it must .be upon the ground that the habit of the girl employees to play with the trucks during the noon intermission, with the knowledge and express consent of the foreman, and without objection by any one representing the defendant, made such practice one of the conditions under which the business was carried on, upon much the same principle as employers are held liable for the results of horseplay which has grown into a custom. White v. Stockyards Co., 104 Kan. 90, 177 P. 522. Injuries have been held to arise out of the employment whenever they are ‘such as the character of the business or the conditions under which it is carried on make likely, and the result either was or should have been in the contemplation of the employer.’ Jacquemin et al. v. Turner & Semour Manufacturing Co., 103 A. 115 (Conn.). The plaintiff’s participation in the use of the truck would not seem necessarily to bar her recovery, her conduct being of a kind to be expected in girls of her age, and the question of-her want of care not being material, the action not being founded on her employer’s negligence.”

The view of the court is summed up in the concluding paragraph of the opinion as follows: i “Inasmuch as the evidence may be regarded as establishing that the play in which the plaintiff was injured had become a settled custom, with the knowledge and indeed the express approval of the foreman in charge of the department, and without objection on the part of any one, the court is of the opinion that her injury may be regarded not only as having occurred in thé course of her employment, but as having arisen out of it.”

The decision in the Thomas Case must he taken as determining the law to he that the distinction urged by defendant in error does not exist.

There was no evidence of any custom or habit of playing, either by the workman causing the injury or by others There was, of course, no evidence of notice or knowledge in the employer as to playing. Although this scuffling and play arose while the injured man was working, yet he voluntarily participated therein, and it was while-playing and as a direct result of such playing that the injury resulted. I am unable, upon the facts, to distinguish this case from the Stuart Case, supra, where the injury occurred while the parties were at their work.

I think the case is governed by the Kansas-decisions cited and should be remanded.


author: MACK, Circuit Judge.

text:
    MIAMI PAPER CO. v. AMERICAN WOODPULP CORPORATION (two cases).
    (Circuit Court of Appeals, Sixth Circuit.
    April 9, 1925.)
    Nos. 4145, 4146.
    1. Appeal and error @=4 — Appeal only method of reviewing decree in equity.
    Appeal is the proper remedy to secure reversal of a decree in equity, even though the case made by the bill is one at law.
    2. Equity @=388 — Failure to prove grounds for equitable relief held to warrant dismissal of bill.
    Where the sole equitable relief sought by a bill in equity was reformation of a contract, with a money recovery purely as incidental thereto, failure to establish ground for the reformation warranted dismissal of the bill.
    3. Appeal and error @=4, 5 — Judgment dismissing cross-petition reviewabie by appeal.
    Where the only controversy in an action at. law was on a cross-petition setting up an equitable cause of action, a judgment dismissing the cross-petition is properly reviewabie by appeal, and not by writ of error.; but, under Judicial’ Code, § 274b (Comp. St. § -1251b), the cross-petition may be treated by the appellate court as a counterclaim and the judgment reviewed on error.
    4. Appeal andl error @=850(2) — Weight of evidence not reviewabie in action tried to court.
    In an action at law tried to the court by stipulation, on the weight of the evidence the finding of the court is not reviewabie; it suffices that there was evidence to sustain the finding.
    Appeal from and Error to the District. Court of the United States for the Western Division of the Southern District of Ohio; John’ E. Sater, Judge.
    Suit in equity by the Miami Paper Company against the American Woodpulp Corporation. Decree for defendant, and complainant appeals. Affirmed.
    Action at law by the American Woodpulp-Corporation against the Miami Paper Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.

      W. B. Turner, of Dayton, Ohio (E. H. & W. B. Turner, of Dayton, Ohio, on the brief), for Miami Paper Corporation.
    Alfred Bettman, of Cincinnati, Ohio (Moulinier, Bettman & Hunt, of Cincinnati Ohio, and Tanzer & Lane, of New York City, on the brief), for American Woodpulp Corporation.
    Before DENISON, MACK, and DONAHUE, Circuit Judges.
   MACK, Circuit Judge.

The records in these two eases, argued together and growing out of one controversy, present a situation which, due to the ingenuity and zeal of counsel, appears to be more complicated than it in fact is.

The ease on appeal is appellant’s suit in equity, begun in and removed from the state court, in which a decree of dismissal was entered. The case on error is defendant in error’s action at law, begun in the District Court, in which a judgment for the plaintiff was entered and an equitable cross-petition dismissed.

The two proceedings were heard together; the cross-petition was identical with the original bill.

The Miami Paper Company sought to reform a contract on the ground of fraudulent misrepresentations so as to make it clearly a contract between it and American Woodpulp Corporation; it sought, further, to reform it in other respects and thereupon to rescind it and to recover moneys paid thereunder for goods purchased on the ground that they did not conform to warranty or sample.

The document in question is headed:

“American Woodpulp Corporation,
“347 Madi'son Avenue, New York.
“Contract for Woodpulp.
“(Adopted by the Association of American Woodpulp Importers.) “New York, September 2, 1920. “The Miami Paper Co., West Carrollton, Ohio.
“We have this day sold to you for account of Sundsvalls Cellulosa Aktiebolag.”
It is signed:
“Accepted:
“The Miami Paper Co.,
“W. W. Sunderland, Pres.,
“By W. W. Winship.
“American Woodpulp Corporation,
“Jas. Rosenberg, Pres.”

Among the terms of the contracts were these:

“Mode and Place of Delivery: Prompt shipment from Sweden to Philadelphia or Baltimore at seller’s option.

“Terms of Payment: Net cash thirty days from date of invoice.

“If the draft drawn by Sundsvall Cellu-losa Aktiebolag on the American Woodpulp Corporation at 60 days from date of shipment from Sweden falls due before 30 days from date of invoice to be rendered by American Woodpulp Corporation, buyer is to pay the amount of invoice in time to have cheek reach American Woodpulp Corporation at New York on due date of the draft.”

American Woodpulp Corporation sued on a New York judgment against Miami Paper Company growing out of entirely different transactions.

Neither in the decree in the equity case nor in the combined judgment and decree in the law ease are the grounds of dismissal of the bill and cross-petition recited. In the opinion made applicable to both eases, the court stated that on all of the issues in both eases the American Company must succeed. In the law case the court found on the issues arising out of the plaintiff’s ease in favor of the plaintiff for the amount of the New York judgment, with interest, reciting that a jury had been waived by the parties; and on the issues arising out of the defendant’s cross-petition the court found the issues for the plaintiff, the American Company. Appended to these findings was the statement, recited to have been made at the request of the defendant, that the court makes no finding on any issue as to whether the woodpulp delivered to defendant by the Swedish Company conformed to the contract between the defendant and the Swedish Company, as any such issue was irrelevant to the issues between plaintiff and defendants. It is apparent from this statement and from the opinion of the court that the ground of the dismissal of the bill and of the cross-petition was the determination by the court that the contract made by the Miami Company was with the Swedish Company and not with the American Company.

In this court, the Miami Company abandoned any claim that the contract should be reformed; it now takes the position that reformation is unnecessary and that on the face of the document it is at least prima facie a contract between it and-the American Company. Thereupon the American Corporation moves to dismiss the appeal on the ground that but for the abandoned claim of reformation, the bill stated at best a cause of action at law and not in equity.

1. Motion to dismiss the appeal must he denied. Appeal is the proper remedy to secure a reversal of a decree dismissing a hill in equity. As it now appears, however, that there is- no ground to reverse the decree because of its failure to direct a reformation of the contract, we do not feel called upon on this appeal to consider the merits of the controversy between the parties as to whether or not the contract without reformation was the contract of the Swedish Company or of the American Company as vendor; that controversy would have been determinable in an action at law and not in a suit in equity.

As a hill in equity seeking as the sole equitable relief reformation, with a money recovery purely as incidental thereto, in view of plaintiff’s failure to establish a basis for reformation, the bill was properly dismissed, and the decree must therefore be affirmed.

2. As to the case on error, the only controversy was as to the cross-petition in equity; plaintiff was eoneededly entitled to judgment in the District Court on the New York judgment. The review desired is as to so much of the final action of the trial court as dismisses the cross-petition. While the reformation sought thereby, as by the original bill, is abandoned in this court and the cross-petition treated as a legal counterclaim, nevertheless the proper method of review was by appeal and not by writ of error; the cross-petition- sought equitable relief and the final action of the trial court was a dismissal thereof as a cross-petition in equity. As a cross-petition seeking primarily the equitable relief of reformation, it was properly dismissed for failure to establish any ground for reformation.

In the light, however, of Liberty Oil Co. v. Condon Bank, 260 U. S. 235, 43 S. Ct. 118, 67 L. Ed. 232, of the provisions of the Judicial Code, § 274B (Comp. St. § 1251b), of plaintiff in error’s abandonment of a claim to reform and its insistence upon its right of recovery at law against defendant in error as vendor under the contract as written, we proceed to a consideration of the ease on error as if the cross-petition had been framed, as it might by reformation of the' pleadings be framed, to present by counterclaim the issues properly determinable at law. The combined record contains a document denominated both a bill of exceptions and a certificate of evidence in both cases.

In this aspect of the case, however, the action of the trial court in dismissing the cross-petition on the merits must likewise be affirmed, as the record presents no question for our, review.

The case at law was tried under a waiver of a jury and a submission to the trial judge. His findings are conclusive, unless indeed it could be contended that as a matter of law defendant in error is necessarily the vendor under this contract. ,

It is clear, however, from the decision in Golden v. Shaw & Co., 204 App. Div. 404, 198 N. Y. S. 155, upon which the plaintiff in error places most reliance, that at the best the American Company is only prima facie the vendor and that its prima facie liability is subject-to rebuttal.

In the Golden Case, in which, as in this ease, the contract was entered into for the account of some one else, the issue as to whether or not the person for whose account it was entered into or the person who entered into it for the account of the other was to be deemed the principal was, under the ruling of the Appellate Division reversing the trial judge, submitted to a jury. In the instant case evidence pro and eon was submitted to the trial judge. Dealing with it as a controversy at law and not in equity, we are not empowered to review the weight of .that evidence. It suffices that there was evidence to sustain the conclusion reached by the trial judge that the American Woodpulp Corporation was an agent and not a principal. The most striking evidence thereof was the practice of the parties. With knowledge that the American Woodpulp Corporation was the exclusive American agent of the Swedish Company, the Miami Company had made other contracts with ft on the same printed form; in some the American Company purported to act as agent; in others, as principal; in the latter class, however the word “ourselves,” instead of as here the name of the Swedish Company, was inserted in the blank space after the printed form words “for account of.”

The judgment in the law case must therefore be affirmed.


text:
    JEROME H. REMICK & CO. v. AMERICAN AUTOMOBILE ACCESSORIES CO.
    (Circuit Court of Appeals, Sixth Circuit.
    April 9, 1925.)
    No. 4190.
    1. Copyrights <®=»2 — Statute may he applied to new situations.
    The ■ statute giving exclusive rights in copyrighted publications may be applied to new situations, not anticipated by Congress, if fairly construed, such situations come within its intent and meaning. ‘
    2. Copyrights <®=»66 — Broadcasting song by advertising radio station held public performance for profit.
    The broadcasting by radio of a copyrighted musical composition by a manufacturing corporation, which maintained and operated the broadcasting station for advertising purposes, héki a public performance for profit, and an infringement of the copyright.
    Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hick-enlooper, Judge.
    Suit in equity by Jerome H. Remiek & Co. against the American Automobile Accessories Company. Decree for defendant (298 F." 628), and complainant appeals.
    Reversed and remanded.
    Thomas G. Haight, of Jersey City, N. J., and John W. Peek, of Cincinnati, Ohio (Peek, Shaffer & Peek and John W. Weinig, all of Cincinnati, Ohio, and Nathan Burkan, of New York City, on the brief), for appellant.
    Marston Allen and Alfred M. Allen, both of Cincinnati, Ohio (Adíen & Allen and Powell Crosley, Sr., all of Cincinnati, Ohio, on the brief), for appellee.
    Before DENISON, MACK, and DONAHUE, Circuit Judges.
   MACK, Circuit Judge.

The plaintiff brought bill in equity to enjoin defendant from reproducing by radio broadcasting a musical composition entitled “Dreamy Melody,” the copyright of which is owned by plaintiff. The bill alleged that defendant manufactured and sold radio products and supplies for pecuniary profit; that it maintained a radio broadcasting station in Cincinnati as a medium of advertising and publicity, and as a means of bringing its radio products and supplies to the attention of the public, and of stimulating the sale thereof, and that the maintenance of the station was effective for these purposes; that the license from the United States Department of Commerce, Bureau of Navigation Radio Service, to operate as a commercial station, was issued upon application to operate for commercial purposes; that defendant announced its programs to the public by newspaper advertisements and bulletins, and that it started and ended its programs with the announcement, “Station WLW, Crosley Manufacturing Company, Cincinnati, Ohio.” The bill further alleged that the defendant charged on its books the radio broadcasting service to its advertising and publicity account. It prayed for injunction and damages. Motion to dismiss the bill was'sustained.

The question presented is whether, under, the circumstances stated, the broadcasting of a copyrighted musical composition is an infringement of the statutory copyright. By Act March 4,1909, c. 320, § 1, 35 Stat. 1075 (Comp, St. § 9517), “any person entitled thereto, upon complying with the provisions of this act, shall have the exclusive right * “ * to perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit.”

While the fact that the radio was not developed at the time the Copyright Act (Comp. St. §§ 9517-9524, 9530-9584) was enacted may raise some question as to whether it properly comes within the purview of the statute, it is not by that fact alone excluded from the statute. In other words, the statute may be applied to new situations not anticipated by Congress, if, fairly construed, such situations come within its intent and meaning. Thus it has been held both in this country and England that a" photograph was a copy or infringement of a copyrighted engraving under statutes passed before the photographic process had been developed. Gambart v. Hald, 14 C. B. N. S. 303; Rossiter v. Hall, 5 Blatchf. 362, Fed. Cas. No. 12,082. While statutes should not be stretched to apply to new situations not fairly within their scope, they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries.

Bills have been introduced in both House and Senate to permit broadcasting without infringing copyrights. The rights of composer, producer, performer, and the public under this new method of reproduction are eminently matters for considered legislation; but, until Congress shall have specifically determined the relative rights of the parties, we can but decide whether and to what extent statutes covering the subject-matter generally, but enacted without anticipation of such radical changes in the method of reproduction, are, fairly construed, applicable to the new situation.

A performance, in our judgment, is no less public because the listeners are unable to communicate with one another, or are not assembled within an inclosure, or gathered together in some open stadium or park or other public place. Nor can a performance, in our judgment, be deemed private because each listener may enjoy it alone in the privacy of his home. Radio broadcasting is intended to, and in fact does, reach a very much larger number of the public at the moment of the rendition than any other medium of performance. The artist is consciously addressing a great, though unseen and widely scattered, audience, and is therefore participating in a public performance.

That, under the Copyright Act, a public performance may be for profit, though no admission fee is exacted or no profit actually made, is settled by Herbert v. Shanley, 242 U. S. 591, 37 S. Ct. 232, 61 L. Ed. 511. It suffices,' as there held, that the purpose of the performance be for profit, and not eleemosynary; it is against a commercial, as distinguished from a purely philanthropic, public use of another’s composition, that the statute is directed. It is immaterial, in our judgment, whether that commercial use be such as to secure direct payment for the performance by eaeh listener, or indirect payment, as by a hat-checking charge, when no admission fee is required, or a general commercial advantage, as by advertising one’s name in the expectation and hope of making profits through the sale of one’s products, be they radio or other goods.

In Pastime Amusement Co. v. M. Witmark & Sons (C. C. A. 4), 2 F.(2d) 1020, decided December 20, 1924, affirming (D. C.) 298 F. 470, Jerome H. Remick & Co. v. General Electric Co., S. D. N. Y., decided September 30, 1924, and M. Witmark & Sons v. L. Bamberger & Co. (D. C.) 4 F.(2d) 160, 291 F. 776, the courts have reached this same result. Cf. Kalem v. Harper, 222 U. S. 55, 32 S. Ct. 20, 56 L. Ed. 92, Ann. Cas. 1913A, 1285. There is nothing in White-Smith Music Co. v. Apollo, 209 U. S, 1, 28 S. Ct. 319, 52 L. Ed. 655, 14 Ann. Cas. 628, that affects our conclusion. There the question was whether a perforated music roll was a publishing or copying of music that had been copyrighted. The court expressly stated that the question whether the manufacturers of such perforated music rolls, when sold for use in public performance, might be held as contributory. infringers, was not involved. The question as to what constituted a public performance did not arise.

Reversed and remanded.


author: MOORMAN, Circuit Judge.

text:
    UNITED STATES, to Use of GOODENOW v. ÆTNA CASUALTY & SURETY CO.
    (Circuit Court of Appeals, Sixth Circuit.
    April 6, 1925.)
    No. 4216.
    United States <@=>67(3) — Action on bond of contractor for public work may be brought against surety alone.
    An action on 'the bond of a contractor for public work, under Act Aug. 13, 1894, as amended by Act Feb. 24, 1905 (Comp. St. § 6923), to recover for labor and materials furnished, may be maintained against the surety alone without joining the contractor.
    In Error to the District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge.
    Action at law by the United States, to the Use of Charles P.< Goodenow, against the .¿Etna Casualty & Surety Company.' Judgment for defendant, and plaintiff brings error.
    Reversed.
    Dean S. Face, of Grand Rapids, Mich. (Jewell, Raymond & Face, of Grand Rapids, Mich., on the brief), for plaintiff in error.
    Edgar H. Johnson, of Grand Rapids, Mich. (Travis, Merrick, Warner & Johnson, of Grand Rapids, Mich., on the brief), for defendant in error.
    Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.
   MOORMAN, Circuit Judge.

This is a suit against the surety on a bond executed by Alvin R. Morrison, under Act of Congress of August 13, 1894, as amended by Act of February 24, 1905 (Comp. St. § 6923), for .the faithful performance of a contract for the construction of a coast guard dwelling at Grand Haven, Mich. The District Court, without stating reasons therefor, sustained a motion to dismiss the proceeding, the grounds of which were that the petition did not show the plaintiff had title to the labor and material claims set out therein, and also because of defect of parties in that the contractor was not made a party defendant.

The petition alleges that on June 24, 1922, and at divers times after that.date and before the date of final settlement between the contractor and the government, plaintiff supplied the contractor, at the city of Grand Haven, with labor and material “used by him in the construction of said building and accessories in the prosecution of the work provided for in said contract.” A statement of the value of the labor and materials alleged to have been supplied and not paid for was attached to the petition as “Exhibit C.” This sets forth various sums designated as payments to named persons for materials and wages.

Goodenow’s name does not appear on the exhibit, in view of which it is assumed by counsel for defendant that plaintiff’s claim is for money loaned to the contractor, to be used by him in paying for the labor and materials, from which it is argued that the statute is inapplicable. The assumption, in our opinion, is unwarranted, for the exhibit does not purport to show the conditions under which the materials were furnished and the wages paid. It is not, therefore, contradictory of the essential averments in the petition. When considered in connection with them, there is no detraction from their full import, which meets the requirements of the statute. Hence the question insisted upon is not presented.

The statute provides, among other things, that any person who has furnished labor and material on public work, who has not been paid, may intervene in any action instituted by the United States on a bond, and, if no suit is brought on the bond by the United States within six months from the completion and final settlement of the contract, then one who has supplied the contractor with labor .and material and has not been paid therefor is authorized, upon complying with certain specified terms, to bring suit in the name of the United States against the contractor and his sureties in the district in which the contract was to be performed and executed for his use and benefit.

The right of action given the plaintiff is statutory, and is enforceable only in the manner prescribed by the act. It is contended by defendant that the. phrase “against said contractor and his sureties” required plaintiff to sue both the contractor and surety, and that his suit against the surety alone, although in every other respect well founded, cannot be maintained. The point has not heretofore been decided. But a recovery by a creditor who had claims for material and labor against a contractor, in a suit against the surety alone, was permitted in United States v. American Surety Co., 200 U. S. 197, 26 S. Ct. 168, 50 L. Ed. 437, and, under the Act of February 28,1899 (30 Stat. 906), modeled after the Act of August 13, 1894, in Equitable Surety Co. v. United States, 234 U. S. 448, 34 S. Ct. 803, 58 L. Ed. 1394. Recoveries have also been allowed in proceedings wherein the contractor and surety were both sued, but only the surety was before the court. United States v. Schofield (C. C.) 182 F. 240; United States Fidelity & Guaranty Co. v. United States, 231 U. S. 237, 34 S. Ct. 88, 58 L. Ed. 200.

The first ease, it is said, would lack analogy, if otherwise applicable, because under, the old act there was no limitation upon the number of actions that could be brought by creditors, whereas the amendment of 1905 provided that only one action should be brought. We do not think this difference is substantial in effect. In the other cases cited, as in the first, the question was not raised. It is therefore a question of initial construction adaptable to the full purposes of the act; and with this in view a reasonably liberal interpretation is permissible. United States v. American Surety Co. of New York, 200 U. S. 197, 26 S. Ct. 168, 50 L. Ed. 437; Equitable Surety Co. v. United States, 234 U. S. 448, 34 S. Ct. 803, 58 L. Ed. 1394; Illinois Surety Co. v. John Davis Co., 244 U. S. 376, 37 S. Ct. 614, 61 L. Ed. 1206.

In construing this statute, the courts have frequently stated that the purpose of Congress in enacting it was to protect those who furnish labor and material for the prosecution of public work. Indeed, the various provisions of the act clearly manifest that purpose, for the terms imposed upon suing creditors, including the provision that only one action shall be brought, all look to the protection of the creditors of the contractor and in no wise seem to have in view the safeguarding of the contractor or his bondsman. It is difficult to see how that purpose in every instance could not be carried into effect in a suit aganist the bondsman alone. If it be thought that the contractor might interpose a defense that would be helpful to the bondsman or some creditor, established rules of procedure are available for making him a defendant. The creditor’s right is permissive. He is given the right to sue “the contractor and his sureties.” In the opinion of a majority of the court, it would be too narrow a construction to say that he is forbidden by the language quoted from bringing his action against the surety alone.

Judgment reversed. -