text:
    CROKER et al. v. CROKER et al.
    No. 5942.
    Circuit Court of Appeals, Fifth Circuit.
    June 30, 1931.
    See also 9 F.(2d) 409.
    J. T. G. Crawford and George C. Bedell, both of Jacksonville, Fla., and Frederick R... Ryan, of New York City, for appellants.
    George M. Powell, of Jacksonville, Fla.,F. T. Faneher, B. F. Paty, C. H. Warwick, Jr., and R. E. Robinson, all of West Palm Beach, Fla., F. P. Fleming and C. H. Lieh-liter, both of Jacksonville, Fla., and C. D. Blackwell, of West Palm Beach, Fla., for appellees.
    Before FOSTER, SIBLEY, and HUT-CHESON, Circuit Judges.
   HUTCHESON, Circuit Judge.

Appellants, children of Richard Croker, deceased, by this appeal bring into question the correctness of a decree of the court below denying their claim as heirs under the homestead sections of the Florida Constitution, to property described by them in their brief, as about “one mile of valuable ocean front nqw in the town of Palm Beach, Florida, owned by the late Richard Croker at the time of his death.”

There are three appellees: (1) Bula Croker, widow of Richard Croker, Sr., who claims all of the property, claiming to have acquired it in one of three ways, by deed in. Croker’s lifetime, by prescription under the-deed, or by his will; and (2) J. B. McDonald and Palm Beach Estates, together claim- ■ ing part of the property by purchase fronn Bula and Richard Croker in his lifetime.

The District Judge found generally against the appellants on the issue of homestead and dismissed their bill. He did not find it necessary, nor do we, since we agree with his conclusion on the homestead issue, to determine whether Bula Croker acquired her title by deed, by prescription, or by will; or the correctness of the claim made by McDonald and the Palm Beach Estates that they acquired title to part of the property by deeds from Croker and wife. See Croker v. Croker (D. C.) 7 F.(2d) 218, 219; Bula Croker v. Palm Beach Estates, 94 Fla. 171, 114 So. 225.

We have been greatly aided by the excellent briefs which have exhaustively collected and collated the significant features of the evidence and the applicable authorities. While these briefs have made it clear that the matter must be disposed of ultimately as a question of fact, they have also made it plain that there are certain legal principles which must be kept in mind in apprehending, relating, construing, and giving significance to the primary facts which the voluminous record discloses. A brief statement of these principles will serve, we think, to explain and support the conclusion that the land in question was not “a homestead * * * * owned by the head of a family residing in this State,” and that therefore there was no homestead exemption inuring to the appellants as heirs of Richard Croker.

Primarily it must be borne in mind that while the courts of Florida have construed most liberally the inurement provision of article 10, § 2, of the Florida Constitution in favor of the heirs of a homestead owner, resident in the state, whether these heirs are themselves adult or infant, resident or nonresidents on the homestead or in the -state (Norton v. Baya, 88 Fla. 1,102 So. 361), the Florida courts, in line with the uniform current of American authorities upon homestead exemptions, are very firm in maintaining, “The Constitution does not contemplate that the exemptions allowed shall extend to any title, right, or interest in property that is not owned by the head of a family residing •iit -this state:” Pasco v. Harley, 73 Fla. 819, 75 So. 30, 33; Lanier v. Lanier, 95 Fla. 522, 116 So. 867.

It is also clearly settled by the Florida decisions that while “the provisions of the homestead laws should be carried oiit in the liberal and benefieient spirit in which they were enacted, but at the same time great care -.should be taken to prevent them from becoming the instruments of fraud,” Jetton Lbr. Co. v. Hall, 67 Fla. 61, 64 So. 440, 51 L. R. A. (H. S.) 1121, those decisions strictly declare that, “The ‘exemptions’ allowed do not attach to real estate that is not occupied as the home of the family.” The place must be not a theoretical, but a real place of residence. Solary v. Hewlett, 18 Fla. 756; Matthews v. Jeacle, 61 Fla. 686, 55 So. 865; Pasco v. Harley, 73 Fla. 819, 75 So. 30, 32.

Under the Florida decisions, actual occupancy of a home with intention to remain there and make it the home of the family, the place of their actual use and occupancy, is essential to the homestead right. Loring v. Wittich, 16 Fla. 498; Oliver v. Snowden, 18 Fla. 823, 43 Am. Rep. 338; Drucker v. Rosenstein, 19 Fla. 191. Further, the right to the exemption may be lost after it accrues by the owner ceasing to be the “head of a family residing in this state,” Matthews v. Jeacle, 61 Fla. 686, 55 So. 865, 867; Herrin v. Brown, 44 Fla. 782, 33 So. 522, 103 Am. St. Rep. 182; or by the abandonment of the property as the home of the family, Murphy v. Farquhar, 39 Fla. 350, 22 So. 681; Pasco v. Harley, 73 Fla. 819, 75 So. 30, 33.

In these respects the decisions of Florida but emphasize and confirm that public policy which underlies this institution of purely American origin, that it is designed to secure and does secure to residents of the state the secure protection of a family home; or as ’stated in Stanton v. Hitchcock, 64 Mich. 316, 31 N. W. 395, 8 Am. St. Rep. 821, quoted with approval in Tromsdahl v. Nass, 27 N. D. 441, 146 H. W. 719, 721, 52 L. R. A. (N. S.) 746: “The state’s guaranty of the right of homestead was designed to protect those who had subjected themselves to its laws, and acted in reliance on them, but not to treat as homes what are not homes, or give powers to nonresidents which could not, under any circumstances, be of use to them personally.”

It is also true that in Florida, as elsewhere, one may be the head of a family residing in the state without being a citizen thereof, and one may be a citizen of a state without being the head of a family residing there. State v. Adams, 45 Iowa, 99, 24 Am. Rep. 760; Hauenstein v. Lynham, 100 U. S. 483, 25 L. Ed. 628; Minor Conflicts of Law, § 21, p. 60; State v. Jackson, 79 Vt. 504, 65 A. 657, 8 L. R. A. (N. S.) 1245, citizenship not being an essential to but one of the factors in determining the question of permanent residence vel non .within the state. If permanent residence in the state is coupled with the ownership of property which is adapted to be and is used as a family home, the exemption secured by the Constitution exists in favor of the home owner, whether under nice distinctions “the place where he lives be called his domiciliary residence or merely his residence.”

For it is not the nice distinctions inherent in legal words, but the fact of actual use and occupancy of the home with the intention of permanency, which gives the exemption. Chitty v. Chitty, 118 N. C. 647, 24 S. E. 517, 32 L. R. A. 394; Smith v. Croom, 7 Fla. 81.

In this view while we do attach great evidentiary significance to the facts regarding Gleneaim, the Irish estate of Croker, we think these facts should be considered as part of the full stream and not as having the great particular legal significance that appellees would, on the theory of the law of domicile of origin, attach to them. We do think, however, that taken as a part of the deepening stream of his life they show and form the current of it, and irresistibly carry the mind to the conclusion that if Gleneaim in Ireland was not his home, he had no home.

The briefs of the parties cite many authorities. Both rely upon Jacobs on Domicile, while for the appellees emphasis is placed upon Marks v. Marks (C. C.) 75 F. 321; Munro v. Munro, 7 C. & F. 891; Udny v. Udny, 1 H. L. 441; 9 Eng. Ruling Cases, 782; Moorehouse v. Moorehouse, 10 H. L. Cases (Eng.) 272; Somerville v. Somerville, 5 Ves. 750, also reported in First Am. Ruling Cases 284 to 302. Other American cases relied on by appellees are McKowen v. McGuire, 15 La. Ann. 637; Smith v. Croom, 7 Fla. 81; Pickering v. Winch, 48 Or. 500, 87 P. 763, 9 L. R. A. (N. S.) 1159; Mitchell v. U. S., 21 Wall. 350, 22 L. Ed. 584.

Appellants on their part cite Ennis v. Smith, 14 How. 400, 14 L. Ed. 472; Desmare v. U. S., 93 U. S. 605, 23 L. Ed. 959; Mitchell v. U. S., 21 Wall. 350, 22 L. Ed. 584; Gilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502; Duke v. Duke, 70 N. J. Eq. 135, 62 A. 466; Maxwell v. McClure, 22 H. L. 7; Chitty v. Chitty, 118 N. C. 647, 24 S. E. 517, 32 L. R. A. 394; Smith v. Croom, 7 Fla. 81.

It will not serve any purpose to discuss or analyze these eases. All of them are really fact eases wherein conclusions are reached upon the controlling facts therein, and the same judge would, upon their varying facts, have decided all of them in principle in the same way.

Coming to a consideration of this case on the facts, we think it must be said that the difficulty in this, as in all other cases involving the question of domicile or residence, arises out of the fact that the controversy springs in a collateral way; that is, it exists where persons are seeking to apply to border line cases a term which, designed for plain cases, has to have its limitations pricked out in case by ease. In the plain cases if litigation ever does arise in them, no stretching or pulling of the term is needed. No presumptions need be resorted to, no difficulties arise. In the border line cases, that is, where the acts and/or the statements relied on to prove the fact of residence are in themselves equivocal, subject to being resolved either way, or where the result of a series of acts and statements is equivocal because, though the individual acts and statements themselves may each in itself be unequivocal and of plain meaning, the aggregate of them presents a confused and contradictory mass, equivocal as a whole. Then in order to properly determine the question which must in the end control, of what in fact was the place of residence, it becomes necessary to marshal all of these equivocal and contradictory acts and statements and the equivocal situations which they produce in an effort to discover some current which runs through and gives final character to them all.

To the claim that Croker had repatriated himself, which appellees sought to establish by proof of his long residence in Ireland, the establishment of his great estate there, the expression of his intention and desire to become a citizen of the Irish Free State, contained in the document so bitterly contested as spurious, appellants oppose the great facts establishing Croker’s continued American citizenship, his early naturalization here as an American citizen, his long, intimate, and powerful connection with American life, business and political, the fact that his fortune was made here and that his investments, outside of his stables, were always here maintained.

While we think, appellants have greatly the best of it on this issue of citizenship, we also think it plain that the point has only small bearing’ upon the real issue here, which is not citizenship, but residence in Florida as the owner and occupier of á home. Whether or not Croker was a citizen of the United States and the state of Florida, or of the Irish Free State or of Great Britain, we think is per se wholly immaterial. Whether he was a homestead owner residing in the state of Florida is the question.

When, the record upon that question is examined in the light of the tremendously important fact that all of the plaintiffs, the children of Croker, have in the bitterly contested litigations in which they involved their father in his later years declared in their pleadings and under oath time and time again that he was a resident not of Florida, but of Ireland, and in the ease at bar none of them have taken the stand to retract or explain away the sworn statements which they made, we think the conclusion easy that they were right there and wrong here. Men often find themselves hoist on their own petards when, having one objective in mind, they take á course to reach it which runs counter to another course they might have taken, and which it turns out later would have been a more effective one. Having done this, the end still unattained, they find themselves either because of a real estoppel unable to retrace their way, or no real estoppel present, evidentially embarrassed by the solemn affirmation once of that which they would now deny.

Nor is there anything inequitable in the flowing of such a result from such a situation. Not that the acts, the pleadings, and the affidavits of the plaintiffs in those eases may be taken now against them as real estoppels to assert against his widow, he being dead, the contrary of what they asserted against him living, but that just as family history constitutes one of the great .exceptions to hearsay, and things are taken to be as families represent them among themselves to be, it must be as a fact considered prima facie true that Richard Croker did live in Ireland when every one of his children, with whom until his second marriage he was friendly and for whom he had made generous provision, and all of whom had lived for a time with him at his family home in Ireland, have stated, both sworn and unsworn, that he did live there. When they now come in to assert the contrary, but do not themselves take the stand to testify to a single fact which would explain or rebut their former statements made deliberately and under oath, it should, we think, stand as proven, unless the contrary is by clear and convincing evidence established, that the facts are as to their father’s residence, what they have so persistently at other times said they were.

Apart from this, we think the whole record, viewed not piecemeal but in bulk, shows that Ireland was his home. It is true there are many facts in this record which have individual significance to the contrary. Things done and said by Croker, an old man, with an old man’s vagaries, his inconsistencies, his instabilities, which giving momentary glimpses of his mind, tend to point to an intention there the contrary of what we find. These are but flecks of light, flickering through a lowered shade which distort and magnify the things they show. The real truth lies within, and since we cannot enter there, it must be sought in those facts disclosed by the record, which give a larger view of the whole content of his life.

One of these facts is the place Gleneaim. It stands like a lighthouse, illuming this whole record. There his pride and' affection centered. There had he built himself on an estate of seven hundred acres, a great house of Irish granite for the purpose as he declared, of establishing a home for the Croker family for all time. In the study there at his direction had been, carved above the mantel, “East or West, home is best.” It was to this place that he returned from America after his fierce struggle there to maintain against his children, the affirmative of that imperious query, “Is it not lawful for me to do what I will with mine own?” It was to this place, the litigations over, the property placed in McDonald’s hands for disposition, he returned for the rest and peace that home alone can give. It was here he drew his last breath; it was here, when he died, that they buried him. Here is the mausoleum built under his own directions for his last resting place, and, “Here he lies, where he longed to be; home, the sailor, home from the sea; the hunter home from the hill.”

We think the District Judge was right in denying plaintiffs’ claim of homestead. The evidence in our opinion does not establish that Richard Croker ever had a home in Florida. It certainly establishes that if it was ever there it was only his temporary one, and was permanently abandoned for his Irish home some time before his death.

The judgment of the court below is affirmed.


source: Caselaw Access Project

author: HICKS, Circuit Judge.

license: Public Domain

text:
    PROCTOR v. PREFERRED ACC. INS. CO. OF NEW YORK. SAME v. TRAVELERS’ INS. CO.
    Nos. 5721, 5722.
    Circuit Court of Appeals, Sixth Circuit.
    June 30, 1931.
    J. Franklin Fairleigh, of Louisville, Ky. (J. J. Kavanaugh and M. D. Elston, both of Louisville, Ky., on the brief), for appellant.
    Nathan Kahn and H. W. Coleman, both of Louisville, Ky. (Harris W. Coleman and Trabue, Doolan, Helm & Helm, all of Louisville, Ky., on the brief), for appellees.
    Before DENISON, HICKS, and HICK-ENLOOPER, Circuit Judges.
   HICKS, Circuit Judge.

These suits were upon accident policies issued on behalf of Nelson W. Proctor, who died while the policies were in force. Ap-pellees are not liable if the insured committed suicide,, and the issue was whether his death was effected through accidental means or by suicide. By stipulation the cases were heard together.

Appellant insists that she was denied the right of a trial by jury in violation of the Seventh Amendment to the Constitution and section 770 of the Judicial Code (title 28, § 770, U. S.' C., 28 USCA § 770), in that the jury heard no testimony in open court as provided by section 635 of the Judicial Code (title 28, § 635, U. S. C., 28 USCA § 635). This matter came up as follows:

There had been a previous trial, and when the case came on the second time the court announced that if the evidence for plaintiff should be the same or substantially the same as on the former trial the court would direct a verdict for the defendants. Counsel for all parties responded that in so far as they were informed the evidence would be substantially tbe same. Thereupon plaintiff and defendants stipulated that the evidence would he the same or substantially the same as upon the former trial and that the testimony heard on the former trial should be the evidence upon the present trial. The bill of exceptions continues:

“Thereupon without tbe hearing of oral testimony or examination of witnesses in open court, and without the Court or jury hearing any testimony from either plaintiff or defendant Court upon the evidence aforesaid peremptorily instructed the jury to find for the defendant in each case, and accordingly the jury in each case found a verdict for the defendant.

“The evidence aforesaid heard upon the former trial in this case ‘and by stipulation heard on this trial of the ease is in words and figures as follows: * * * ”

Neither the quoted portion of the bill of exceptions nor tbe record entries make it exactly clear whether the evidence taken upon tbe former trial was actually read in tbe presence of tbe jury. We assume that it was not, but that tbe court directed a verdiet upon bis own recollection of tbe evidence. Whatever tbe fact is, tbe whole procedure grew out of the stipulation that the testimony heard on the former trial should be the evidence in the ease. This stipulation was entered into after the parties had been advised by the court that in such case it would direct a verdict for defendant. Appellant’s counsel were present, participated in the trial, and, so far as the record indicates, fully acquiesced .in the procedure. They neither raised objection nor took exception to any feature of it. We think therefore that the matters complained of were clearly waived and any supposed irregularity therein cannot now be taken advantage of. Kearney v. Case, 12 Wall. 275, 285, 20 L. Ed. 395. Judgment was rendered on November 12, 1929, and no further steps were taken until February 7, 1930, when appellant moved the court to set aside the verdict and judgment upon the ground that they were each void and were rendered contrary to law. We regard this as nothing more than a motion for a new trial. It suggested no specific error, was overruled, and is not reviewable.

A directed verdict was proper. The undisputed testimony is that the insured, 48 years old, an attorney having a substantial income, happily married for 16 years, in good health and fair financial'circumstances, would occasionally go on á drunken carousal lasting from a night to a few days. He left home on the morning of July 3, 1928, and never returned alive. He spent'the afternoon -and evening of July 3d drinking and driving about Louisville in a taxicab accompanied by a woman who joined him during the day. Later in the evening he quarreled with the woman, they separated, he was driven to a garage, and the proof indicates that he spent the night there. On the 4th he rented another taxicab and drove about the; city the entire day making, at intervals, at least two visits to his offiee. He continued to. drink and spent a portion of the afternoon asleep in the car. In the evening a drinking party composed of the insured, a taxi driver, Wetzel, Mrs. Wetzel, and a Miss Smallwood, drove to a road house in Indiana where.they remained until about 2 o’clock. They then returned! to Wetzel’s home, where they slept until morning. On July 5th the same persons drove with insured to his office, where he used the telephone, procured some money, and then the party drove to Twin Lakes, a resort near the city, where they remained until about-half past 2 on the morning of July 6th, when they returned to a garage -in the city where they stayed the remainder of the night. About 6 o’clock in the morning deceased telephoned his wife that he would be at home in about half an hour. However, he was then driven to his office where he procured some money and was driven by one Givens, another taxi driver, to Givens’ home, where he ate breakfast, shaved slept awhile, talked but little, and appeared to be troubled. While there he procured a loaded pistol from Mrs. Givens and retained it in spite of efforts to take it away from him. There is substantial evidence that he kept this pistol in his inside coat pocket throughout the day. About 10 o’clock he was again driven to his offiee, then returned to the Givens’ home, had lunch, tried to drink whisky, reclined a short time upon a bed, and about 1 o’clock a party composed of the insured, a taxi driver, Givens, and his wife, and one Mrs. McCord, again drove to the office of the insured and thence to Twin Lakes. Finding nothing to drink there, insured became restless and the party soon returned to the city. Upon their way in insured insisted that he wanted beer and was told that it could be procured at the home of Mrs. McCord. It appears that she was engaged in the sale of “home-brew” and whisky. The party drove to the McCord home, the insured was given a seat in an arm chair in a comer of the living roop, was given beer to drink, and was left there by the taxi driver and his wife. Soon thereafter Lizzie Moran, in an adjoining room, heard a shot, scented the odor of something burning, went to the door, saw that the insured’s shirt was on fire, put the blaze out and took a pistol from his right hand. This was the same pistol he had procured from Mrs. Givens. Insured wore no vest, his coat was unbuttoned, his shirt and undershirt were both open in front, the pistol was still gripped in his right-hand inside his shirt next to the flesh. His skin appeared as if the pistol had -been against the flesh when fired. The flesh was powder-burned. Insured had slumped down in the chair and was dead. The ball entered about two inches to the left of the median line and about three inches below the nipple and the point of exit was about two inches lower and four inches further to the left. No one except insured was in the room at the time he was shot. There was no indication that he was shot from the outside. The undisputed testimony is that the smoke from the shot came out of one of the windows. The insured was last seen alive by one Markwell, whom he had sent for some cigarettes about five minutes before he was shot. On two or three occasions during this continued “spree” insured telephoned home but persistently refused to be taken there. He said to his companions and others that he had been drinking and was afraid to go home and that he intended to kill himself. He had asked at least four witnesses for a pistol with which to kill himself before he finally- procured the revolver from Mrs. Givens.

Upon this uneontradicted testimony we think that all fair-minded jurymen must undoubtedly conclude that the insured took his life intentionally; there is no room for any inference or presumption to the contrary. Mutual Life Ins. Co. v. Gregg, 32 F.(2d) 567, 568 (C. C. A. 6); Von Crome v. Travelers’ Ins. Co., 11 F.(2d) 350, 352 (C. C. A. 8); New York Life Ins. Co. v. Weaver, 8 F.(2d) 680, 682 (C. C. A. 5); New York Life Ins. Co. v. Bradshaw, 2 F.(2d) 457, 458 (C. C. A. 5).

The only other assigned error discussed in the brief or upon the argument is upon the admission of testimony, but no objection was made or exception taken to any portion thereof, and this assignment is therefore overruled.

Judgment affirmed.


author: PARKER, Circuit Judge.

text:
    COLLIER, United States Marshal, v. VAC-CARO.
    No. 3067.
    Circuit Court of Appeals, Fourth Circuit.
    June 17, 1931.

      Albert F. Flint, of Boston, Mass., and Huntington Cairns, of Baltimore, Md., for appellant.
    Stanley E. Hartman, Asst. U. S. Atty., of Baltimore, Md., for appellee.
    Before PARKER and NORTHCOTT, Circuit Judges, and WATKINS, District Judge.
   PARKER, Circuit Judge.

This is an appeal from an order entered in a habeas corpus proceeding discharging one Sarro Vaeearo from the custody of the United States marshal for the district of Maryland. Vaeearo was arrested under an extradition warrant procured by the British Consul at Baltimore on complaint of the Canadian government, charging him with having committed the crimes of murder, kidnapping, and larceny within the Province of Quebec. A hearing was had before a commissioner specially appointed for the purpose, and Vaeearo was committed on the charges of murder and kidnapping but not on the charge of larceny. He then sued out a writ of ha-beas corpus and, upon a hearing before the District Judge, was discharged on the ground that the evidence before the commissioner was not sufficient to sustain the commitment. From the order discharging him the marshal has appealed.

• The facts are fully stated in the opinion of the court below reported in 38 F.(2d) 862, and need not be repeated in detail. Vaeearo was an informer working with one Mertz; a narcotic agent of the United States government. He and Mertz had been operating in Canada under an arrangement entered into between the American and Canadian authorities and were endeavoring to secure evidence as to the operations of a smuggling ring supposed to be headed by one R. A. Price. They had made contact with Price and had arranged with him and one Bilodeau to deliver certain narcotic drugs in the United States, On the day fixed for the delivery, Vaeearo and Mertz went with Bilodeau to West Stew-artstown, Vt., where the drugs were delivered and Bilodeau placed under arrest. Price, fearing to accompany them into the United States because of his having been deported for prior violations of law, had left them at an inn or “line house” on the border, near Canaan, Vt., where he was awaiting their return.

After Bilodeau had been placed under arrest, he agreed to return to the line house with Vaeearo and Mertz and assist them in enticing Price across the national boundary line. All three accordingly returned and engaged Price in conversation, but Bilodeau, instead of helping to entice him across the line, warned him that Vaeearo and Mertz were officers and attempted himself to escape from them. Mertz thereupon shot Bilodeau, and Vaeearo forcibly arrested Price and brought him into the United States. There is quite a dispute as to where the shooting of Bilodeau and the arrest of Price occurred, but there was substantial evidence that both took place in Canada; and the learned judge below held .that the commissioner was justified in so finding. He thought, however, that there was no sufficient evidence to connect Vacearo with the killing of Bilodeau by Mertz and that Vaecaro was justified in arresting Priee and bringing him across the boundary into the United States.

We agree with the judge below in his conclusion as to the charge of murder. Assuming without deciding that Mertz was guilty of murder in the slaying of Bilodeau, we do not think that there is any evidence that Vacearo in any way aided or abetted Mertz in the slaying. The fact that Vaecaro was present, that he was armed, that he told Mertz to get Bilodeau and not let him get away — none of these things when considered in the light of the surrounding circumstances is any evidence that Vacearo counseled, aided, or otherwise participated in the slaying of Bilodeau. Vaecaro and Mertz were cooperating in a perfectly lawful enterprise, the detection and apprehension of men engaged in crime. And to fasten criminal liability upon Vacearo for the slaying of Bilodeau, it is necessary to show that he stepped aside from the lawful enterprise in which he was engaged and participated in or abetted unlawful conduct of Mertz which resulted in Bilodeau’s death. We do not think that there is any substantial evidence of this sort in the record. Even if what Vacearo did amounted to counseling Mertz to make an arrest in Canada which he had no right to make, there is nothing to show that he had anything to do with the shooting of Bilodeau or that he had reason to anticipate that Mertz would shoot him to prevent his escape.

We think that the learned judge erred, however, with respect to the kidnapping charge. At common law kidnapping is “the forcible abduction and carrying away of a man, woman, or child from their own country and sending them to another.” 4 Black Com. 259; Sutton v. State, 122 Ga. 158, 50 S. E. 60 ; 35 C. J. 903. In Canada it is defined by section 297 of the Criminal Code (Rev. St. of 1927, vol. 1, ch. 36, see. 297), which provides:

“Every one is guilty of an indictable offense and liable to twenty-five years imprisonment who, without lawful authority,
“(a) kidnaps any other person with intent * * *
“(11) to cause such other person to be unlawfully sent or transported out of Canada against his will.”

Kidnapping is an extraditable offense under the provisions of the Webster-Ashbur-ton Treaty of 1842 (article 10, 8 Stat. 572, 576 [see Treaty of 1899, art. 1, 26 Stat. 1508]), provided there is such evidence of criminality as according to the laws of the place where the fugitive is found would justify his commitment for trial if the crime had been there committed. Turning then to the statutes of Maryland, we find that, just as in Canada, the common-law crime of kidnapping has been denounced by a statute (Bag-by’s Annotated Code of Maryland 1924, vol. 1, art. 27, § 316) which provides: “316. Every person, his counsellors, aiders or abettors, who shall be convicted of the clime of kidnapping and forcibly or fraudulently carrying or causing to be carried out of this State any person with intent to have such person carried out of this State, shall be sentenced to the penitentiary for not more than twenty-one years.”

There is evidence to support the contention of the Canadian government that Vacearo forcibly arrested Price in Canada and forcibly carried him across the boundary into the United States. Even if he had the right to make the arrest in Canada for crime committed in his presence, he had no right to carry Price forcibly out of Canada and into the United States; and, if he did so> he violated the statute against kidnapping. To arrest a man for crime is one thing; to carry him out of his country and away from the protection of the laws of his domicile is another and very different thing. An arrest may be made upon a warrant issued by a peace officer and in proper cases without a warrant. It may be made by minor officials and in some eases even by persons who are not officers at all. A person may be carried out of the country to answer for crime, however, only by the authority of the highest executive officials and in accordance with treaty provisions governing extradition. An unlawful arrest is merely an offense against the peace and dignity of the state; an unlawful carrying of a citizen beyond its boundaries to be dealt with by the laws of another state is a violation of the sovereignty of the former.

And it is no defense to the crime of kidnapping that an accused may have thought that he had a right to arrest and carry the person arrested out of the country or that he did not intend to violate the law. The gist of the offense is the forcible carrying out of the state; and where this intention is shown to have existed, it is immaterial that accused may have thought that he was acting within the law. Ignorantia legis neminem exeusat. See 35 C. J. 904; 8 R. C. L. 297; Com. v. Blodgett, 12 Metc. (Mass.) 56, 81; State v. Holland, 120 La. 429, 45 So. 380, 14 Ann. Cas. 692; Ker v. Illinois, 119 U. S. 436, 7 S. Ct. 225, 30 L. Ed. 421.

It is contended in behalf of petitioner that he should be discharged because all of the evidence offered to show the commission of the crimes whereof he stands charged was by deposition. The argument is that while the depositions would be admissible under Rev. St. § 5271 (18 USCA § 655), to connect the defendant with a crime shown to have been committed in a foreign country, the fact that the crime was committed in such foreign country must be established aliunde. We cannot accept such a distinction. The statute in question provides:

“Evidence on hearing. In all cases where any depositions, warrants, or other papers or copies thereof shall be offered in evidence upon the hearing of any extradition ease under this chapter, such depositions, warrants, and other papers, or the copies thereof, shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposition, warrant or other paper or copies thereoí, so offered, are authenticated in the manner required.”

There is nothing in the language of this section which would justify the distinction urged upon us. On the contrary, it expressly provides that depositions “shall be received and admitted as evidence on such hearing for all the purposes of such hearing”; and, of course, one of the purposes of the hearing is to determine whether there is reasonable ground to believe that a crime has been committed against the laws of the complaining country as well as whether there is reasonable ground to believe that the accused is guilty of the crime. To hold that it is incumbent upon the foreign government to produce witnesses to show that the crime was committed within its territory would circumscribe the operation of the statute without reason and would defeat the very purpose for which it was enacted. As said by the Supreme Court in Bingham v. Bradley, 241 U. S. 511, 517, 36 S. Ct. 634, 637, 60 L. Ed. 1136: “It is one of the objects of section 5271 to obviate the necessity of confronting the accused with the witnesses against him; and a construction of this section, or of the treaty, that would require the demanding government to send its citizens to another country to institute legal proceedings, would defeat the whole object of the treaty. Rice v. Ames, 180 U. S. 371, 375, 21 S. Ct. 406, 45 L. Ed. 577, 581; Yordi v. Nolte, 215 U. S. 227, 231, 30 S. Ct. 90, 54 L. Ed. 170; 172.”

We think that there was error, therefore, in the action of the court below in holding that there was no evidence to sustain the charge of kidnapping. It is for the commissioner, or other committing magistrate, to determine whether upon the evidence adduced before him there is reasonable ground to believe that the crime charged has been committed, and the writ of habeas corpus cannot be used for reviewing what the magistrate has decided with regard thereto. Upon such writ the only matters open to inquiry are whether the committing magistrate had jurisdiction, whether the offense charged is within the treaty, and whether there was competent legal evidence warranting the finding that there was reasonable ground to believe the accused guilty.- Fernandez v. Phillips, 268 U. S. 311, 312, 45 S. Ct. 541, 69 L. Ed. 970; Collins v. Loisel, 259 U. S. 309; 315, 42 S. Ct. 469, 66 L. Ed. 956; Ornelas v. Ruiz, 161 U. S. 502, 508, 16 S. Ct. 689, 40 L. Ed. 787; In re Stupp, 12 Blatch. 501, 23 Fed. Cas. page 296, No. 13,563.

This does not mean, of course, that the Secretary of State must surrender petitioner to the Canadian authorities. It means merely that the courts may not upon a writ of habeas corpus review the evidence and discharge the prisoner where he is charged with an offense covered by the treaty, where the committing magistrate had jurisdiction to commit him, and where there was competent legal evidence before such magistrate which warranted him in finding that there was probable ground to believe the prisoner guilty. Notwithstanding the discharge of the writ, the Secretary of State may review the evidence before the magistrate and decide whether the ease presented is one calling for the surrender of the accused to the authorities of the foreign country. Rev. St. § 5272 (18 USCA § 653); 17 Ops. Attys. Gen. 184. In this ease he may, and no doubt will, give consideration to the contention that accused, in attempting to apprehend Price, was operating under instructions of Ms superior and that he had been sent to work in Canada with the sanction of the Canadian authorities. This, however, is a matter for the executive to pass upon and not for the courts. If petitioner should be surrendered to answer the charge of kidnapping, there is no ground to apprehend that he will be tried on the charge of murder, as to which we have held that there was no substantial evidence of guilt. We cannot assume that a friendly government, in violation of article III of the Treaty of July 12, 1889 (26 Stat. 1509), would try the accused on any other charge than that for which "he was surrendered to be tried. Bingham v. Bradley, supra, 241 U. S. 511, 514, 36 S. Ct. 634, 60 L. Ed. 1136; Kelly v. Griffin, 241 U. S. 6, 15, 36 S. Ct. 487, 60 L. Ed. 861.

So far as the order below released petitioner from custody under commitment on the charge of murder, it will be affirmed. So far as it. released Mm under the commitment on the charge of kidnapping, it will be reversed.

Affirmed in part; reversed in part.


author: WATKINS, District Judge.

text:
    HANDLAN v. BENNETT (two cases).
    Nos. 3087, 3097.
    Circuit Court of Appeals, Fourth Circuit.
    June 22, 1931.

      A. E. Bryant, of Wheeling, W. Va., for appellant.
    W. E. Haymond and Haymond & Fox, all of Sutton, W. Va., for appellee.
    Before PARKER and NORTHCOTT, Circuit Judges, and WATKINS, District Judge.
   WATKINS, District Judge.

The single question for determination herein is presented to this court both by appeal and by appeal to superintend and revise in matter of law. Appellee bas moved to dismiss the appeal in No. 3087. Both eases were argued together and counsel’s briefs by consent treated the two eases as one. The controversy arose out of the following facts:

On April 20, 1928, one Agra B. McKinley was adjudged bankrupt and, in due course, appellant was elected trustee of his estate. On January 12, 1929, appellant, who will hereafter be referred to as trustee, under proper order of the court, sold to appel-lee certain of the bankrupt’s real estate and in due course this sale was confirmed. During the administration of the estate and before the sale the trustee received the stun of $8,074.89 as rentals and royalties on certain oil and gas leases, the terms of which extended for various periods beyond the date of the purchase of bankrupt’s real estate by appel-lee. Under the terms of these leases the rentals and royalties were due and payable in advance and, as they fell due, were collected by the trustee to the amount above mentioned prior to the date of appellee’s purchase. . Notwithstanding his admission that these rentals and royalties became due before his purchase and were collected according to the terms of the leases, appellee elaims that in equity he is entitled to such pro rata of same as were in fact earned after his purchase of said real estate. The lands were sold by the trustee subject to the oil and gas leases. It is admitted that $2,723.08 of the total sum of $8,074.89, above mentioned, was earned while the property was in the custody of the trustee and before its sale to appellee, whose claim, therefore, is for the sum of $5,-351.81. The Referee denied appellee’s claim but the Referee was overruled by the District Judge, and the full amount of the claim was allowed.

1. The motion to dismiss the appeal in No. 3087 is based on the ground that the District Court had no power to grant the appeal since the claim did not arise under section 25 of the Bankruptcy Act (11 USCA § 48), which provides for an appeal, among other things, from a judgment allowing or refusing a debt or claim in the amount of $500 or more. We agree with appellee that the claim involved in this ease is not such a one under contemplation of the act as would permit an' appeal under the particular section referred to. The claim did not arise until after the adjudication and grew out of the sale of the bankrupt’s real estate.

Under section 24a of the Bankruptcy Act, 11 USCA § 47 (a), a controversy arising in bankruptcy is reviewable on appeal by the appellate courts and such an appeal does not have to be allowed by the appellate court. It was held in the ease of Taylor v. Voss, 271 U. S. 180, 46 S. Ct. 461, 463, 70 L. Ed. 889, that: “'Controversies arising in bankruptcy proceedings’ referred to in section 24a, include those matters arising in the course of a bankruptcy proceeding, which are not mere steps in the ordinary administration of the bankrupt estate, but present, by intervention or otherwise, distinct and separable issues between the trustee and adverse claimants concerning the right and title to the bankrupt’s estate.” Under this definition, the matter in dispute in this case is undoubtedly a “controversy arising in bankruptey proceedings” as distinguished from “the proceedings” of a court of bankruptcy, and is, therefore, appealable as a matter of right, under section 24a of the act.

“Proceedings” in bankruptcy referred to in section 24b, 11 USCA § 47 (b) has been defined by the Supreme Court in the case of Taylor v. Voss, supra, as “those matters of an administrative character, including questions between the bankrupt and his creditors, which are presented in the ordinary course of the administration of the bankrupt’s estate.” An appeal involving “proceedings” in bankruptcy must be allowed by the Circuit Court of Appeals unless it relates to one of the three matters specified in section 25 (11 USCA § 48), viz., a judgment adjudging or refusing to adjudge bankrupt, from a judgment granting or denying a discharge from debts, and from a judgment allowing or rejecting a debt or claim of $500 or over, any of which questions may be appealed without the allowance of the appellate court. Baer v. Security Trust Co. et al. (C. C. A.) 33 E. (2d) 861. See also 8 Remington on Bankruptcy, p. 122, § 3740, p. 138, § 3757, and September, 1930 Supplement thereto; Collier on Bankruptcy, 1930 Supplement, p. 220 et seq.

2. In determining the controversy as to purchaser’s claim to the pro rata amount of rents and royalties earned from the date of sale to the expiration of the periods for which they had been collected in advance, it will ■be observed that there is no claim of any express agreement. The common-law rule governing the rights of landlord and tenant in such case must, therefore, control unless modified by statute. In 1 Thompson on Real Property, p. 325, § 251, it is said: “By the general rule of the common law, rent was apportioned as to estate but not as to time. While there may be an apportionment of rent as to estate, there can be none as to time, for the contract is entire — the rent for the period of time agreed upon is regarded as an indivisible item. The rule that rent can not be apportioned as to time applies only in the absence of a statute. * * * This rule has been constantly and repeatedly recognized.” Under this rule in the absence of express contract or statutory provision, the owner of the title at the time of the falling due of rent became entitled to its collection. 36 Corpus Juris, p. 366, § 1208, and numerous authorities therein cited. Instances frequently occurred under which a landlord at the beginning of the year leased premises, particularly agricultural lands, for a rental to be paid after the crops were matured and harvested, and thereafter died before the rent became due. In such cases, there being no apportionment of rent as to estate, the successor to the title and not the personal representative of the landlord became entitled to collect the rent for the whole term, even though the greater portion had been earned before the death of the landlord. It was to relieve cases of this character and other analogous cases that the Virginia statute, which later was incorporated as section 1, chapter 95 of the Code of West Virginia, was adopted. That section reads as follows: “On the determination by death or otherwise, of the estate or other thing, from or in respect of which any rent, hire or money, coming due at fixed periods, issues or is derived, or on the death of any person interested in such rent, hire or money, the person or the personal representative or assignee of the person who would have been entitled, but for such death or determination, to the rent, hire, or money coming due at any such period, shall have a proportion thereof, according to the time which shall have elapsed of the time for which the said rent, hire, or other money was growing due, including the day of such death or determination, deducting a proportional part of the charges.” (Italics ours.)

Appellee relies upon this statute and the Virginia decisions thereunder as sustaining his right to apportionment of the rents. He also cites 35 Corpus Juris, p. 86, § 134, under the title “Judicial Sales,” where it is stated: “Where rent paid in advance for a term which does not expire until after the completion of the purchase, the purchaser is entitled to a pro rata portion thereof.” The sontonee quoted is supported in the text by the citation of a New York case which stated that the allowance „was made under the specific provisions of the New York Code. The Virginia case of Taylor v. Cooper, 10 Leigh, 377, 34 Am. Dec. 737, holds that, after a sale is confirmed, the confirmation relates back to the sale_ and from that date the purchaser is entitled to all rents which become due afterward. Any claim that the West Virginia statute enlarges the common-law rights of the purchaser to rents is based upon a misconception of both the terms and the purpose of the act. The rights therein conferred are awarded to the person or personal representative or assignee of the person from whom the title is derived and not upon those newly acquiring it. The act makes no attempt to apportion rent already due and collected, but only rent “coming due” and “growing due.” It relates to eases in which rent earned had not become due and had not been collected as of right.

It must be remembered that the doctrine of caveat emptor applies in all its force to judicial sales and that it will be conclusively presumed that the purchaser agrees to take the title such as it is and that if he permits the sale to be confirmed without objection, he cannot afterward refuse to pay the purchase money because of imperfection of title or for. errors or irregularities in the proceedings under which he purchased. This rule prevails in bankruptcy sales unless the order of sale itself otherwise provides. 3 Thompson on Real Property, p. 871, § 2718; 6 Remington on Bankruptcy, p. 48, § 2566.

. Por the reasons above stated, the order of the District Court appealed from is reversed.

No. 3087 reversed.

No. 3097 dismissed.


author: SIMONS, District Judge.

text:
    FEDERAL SURETY CO. et al. v. A. BENTLEY & SONS CO. A. BENTLEY & SONS CO. v. FEDERAL SURETY CO. et al.
    Nos. 5599, 5604.
    Circuit Court of Appeals, Sixth Circuit.
    July 2, 1931.

      Herman R. Miller, of Toledo, Ohio, for Federal Surety Co.
    Ray Martin, of Toledo, Ohio (Marshall, Melhorn, Marlar & Martin, E. G. Davies, and Crary Davis, all of Toledo; Ohio, on the brief), for A. Bentley & Sons Co.
    Before DENISON and MOORMAN, Circuit Judges, and SIMONS, District Judge.
   SIMONS, District Judge.

While in form the appeals entitled as above are separate and independent, and have come to this court upon two separate records and two sets of briefs, and while some difficulty was experienced at the outset in apprehending the relationship to each other of the two causes, there being no apt explanation introductory to either set of briefs, it becomes clear upon consideration that the appeals seek to review the decision in the same ease below, and are appeals from a single decree therein entered. They will therefore be treated together as appeal and cross-appeal, as in fact they are.

The Bentley & Sons Company was the plaintiff below. It filed its bill in equity-against the Federal Surety Company and other defendants, seeking equitable relief in the way of accounting, marshaling and ascertainment of liens, impounding of funds, and injunction, and also money damages for breach of contract. The defendant filed a cross-petition in the nature of a counterclaim. The cause was by consent referred to a master, and, upon the return of the master’s findings, exceptions were filed by each of the parties above named, and upon hearing thereon the decree, which is by each of the parties appealed from, was entered. No. 5599 is the appeal of the Surety Company, defendant below. No. 5604 is the plaintiff Bentley’s cross-appeal. All claims by and against other parties to the suit have been settled in accordance with the decree of the trial court, and they are not here involved.

The original suit grew out of the construction of the United States Veterans’ Bureau Hospital at Battle Creek, Mich., in 1923 and 1924. Bentley entered into a contract with the government to build the hospital, which consisted of some twenty-nine buildings. All were to be heated by a central steam heating plant, and the general contract price was approximately $2,000,000. The general contractors sublet the contract for the mechanical work, including plumbing and heating equipment, trench excavation, and concrete work, to S. W. Rittenhouse fol* about $400,000. Rittenhouse indemnified Bentley against loss or damage directly arising out of his failure faithfully to perform his contract by a surety bond in the penal sum of $100,000, with the Federal Surety Company as surety. Rittenhouse entered upon the performance of his contract on or about March 27, 1923. Some time thereafter, he needed financial aid, and in August, 1923, the Surety Company financed him, and Rittenhouse assigned to it monies due and to become due him thereafter under his subcontract. Under this arrangement, he continued to perform until early in January, 1924, when he was declared in default, and notice of the said default was given to the surety. Following that, on January 10, 1924, the Surety Company undertook the completion of- the contract. The work under the subcontract was completed and accepted by the United States as of August 30, 1924. The final estimate due from Bentley to the Surety Company upon the completion of the subcontract was $86,942.90, which is not disputed. The amount covered by this final estimate was retained by Bentley to cover liens and as against damages claimed to be the result of the default of the subcontractor, Rittenhouse, and his successor, the Surety Company.

The principal issue centers about the findings of the master, that the Surety Company was liable in damages for delay in completing the heating system and the water system-in accordance with the directions of Bentley. The subcontract provided that all work should be completed on or before July 6, 1924. The heating and water systems having been installed before that date, it is argued by the Surety Company, subjeet to a concession hereinafter noted, that this was the only obligation of the subcontractor with respect to time of performance. Section 4 of the contract, however, reads as follows: “Supervision of contract. That the work herein contracted for shall be done under the jurisdiction and control of the contractor, the Quartermaster General of the Army, or such contracting Quartermaster as he may designate.”

The Surety Company concedes that by virtue of this provision the subcontractor could not conduct his work with absolute disregard of the progess of other work on the job, but that he was obliged to carry on his work in conformity with the general course of construction. It is claimed, however, that the control provided to be exercised by the contractor was a reasonable control, and not an unreasonable one; that Bentley having directed that the heating and water systems should be made operative for furnishing temporary heat and water during construction by November 21,1923, and such progress on the subcontract constituting by far the greater portion of the work specified in the subcontract, it was unreasonable to demand that the subcontractor do in seven months substantially the work that under the contract he was permitted to finish within sixteen months. To determine the merits of Bentley’s contention, it is necessary to consider other provisions in the contract, and other facts disclosed by the record. Incorporated in the principal contract of Bentley with the government were the War Department’s specifications. The subcontract between Bentley and Ritten-house was entered into with specific reference to such specifications. Paragraph 29, of the specifications, reads as follows: “If he (Bentley) so chooses he may complete the boiler house and its heating equipment and install service mains to the various buildings, and install and operate the heating elements therein, provided he turns them over on completion of the work in a perfect and undamaged condition.”

Another provision of the contract required ■ Bentley to keep the buildings sufficiently heated during the progress of the work in the winter season. On September 10, 1923, Bentley wrote to its subcontractor, Rittenhouse, urging upon him the necessity of the completion of the heating syst.em for temporary use. The letter contained, among other things, the following: “It is therefore the understanding that you are to push this portion of the work so as to be completed to, such a .point as will permit of the boilers, pipes and pipe trench being used in temporary heating this winter.”

In addition to this letter, the record shows that Rittenhouse at all times acquiesced in this construction of the contract, and boasted of his ability to perform the work in accordance with Bentley’s request'. The record further shows that if the work had been begun at the time of the receipt of the September 10th letter it could well have been completed in time to provide temporary heat for the buildings during the winter of 1923-1924, and also that the failure to do so was due not to the unreasonableness of the demand, but to the fact that the subcontractor was incompetent, and did not have sufficient financial ability to carry out the contract. It may be said parenthetically that since the record contains no statement of evidence, either in narrative or any other form, we must assume that all of the findings of fact made by the master and approved by the eourt are sustained by the evidence,, and conclusive upon the parties hereto.

From the facts so found, the trial judge was of the opinion that the construction of the contract as an entirety required that full force and effect be given .sections 4 and 29 of the contract, which provided for supervision and direction by the general contractor; that, this provision of the contract having been construed by the parties themselves, such practical construction was entitled to great weight; and that the Surety Company was liable in damages for delay in the performance of its contract in respect to the furnishing of water and temporary heat. We find no error in the holding of the court in this respect.

It is claimed, however, by the Surety Company, that, no specific date having been set in the contract for the completion of any specific item of the work, and no schedule of progress being attached to or referred to therein, the master erred in receiving oral evidence as to facts and circumstances bearing upon the execution of the contract and its later performance, and that the eourt was wrong in overruling the exceptions to the master’s report in that respect. We see no merit in the contention. The Surety Company concedes here, as it did below, that the performance of the contract by the subcontractor was subjeet to a reasonable control by the principal contractor. It must follow that, in the absence'of any standard of reasonableness being found in the contract, ah inquiry into the surrounding facts and circumstances is pertinent, and that the practical construction put upon the contract by the parties themselves should, in the absence of other controlling considerations, prevail, and the case is one where the existence of an ambiguity was so plain that the Surety Company’s obligation to perform must have contemplated the solution of the ambiguity by the established rules therefor.

It is further claimed by the Surety Company that, assuming it to be liable for failure to furnish within the time required temporary heat by the use of the permanent heating plant provided for by the contract, certain items of damage allowed by the master, because of injury to plaster, paint and mill-work resulting from the unsatisfactory and irregular heat furnished temporarily by means of stoves and salamanders, come under the head of special damage, and that, as its bond made it liable only for any loss or damage directly arising by the reason of the subcontractor’s failure to faithfully perform, its exceptions to the allowance of such items of damage should have been sustained. We are unable to say from this record, devoid of any statement of evidence as it is, whether the damages allowed arose directly or indirectly from the subcontractor’s failure to perform. We must, therefore, accept the master’s findings and the decision of the trial judge upon these items as conclusive.

Exception is taken to the allowance of interest to Bentley upon unliquidated damages. In the recent ease of Concordia Insurance Company v. School District, 282 U. S. 545, 51 S. Ct. 275, 278, 75 L. Ed. 528, the Supreme Court, following its own opinion in Miller v. Robertson, 266 U. S. 243, 45 S. Ct. 73, 69 L. Ed. 265, reiterated the rule which it had previously recognized, that “When necessary in order to arrive at fair compensation, the court in the exercise of a sound discretion may include interest or its equivalent as an element of damages.” Under this authority, the District Court could, in the absence of an authoritative decision construing a state statute to the contrary in the state court, apply the federal rule. No such state statute in Ohio is cited, nor any state decision purporting to construe any statute. We assume there is none. We see nothing in the record to warrant the conclusion that the court below, in the allowance of interest, abused its discretion.

The trial judge awarded one-half of the costs below to each of the litigants. This being an equity ease, the allowance of costs was within the discretion of the judge, and we are unable to say that in this respect his discretion was abused.

In Bentley’s cross-appeal, a number of exceptions are urged to the decree of the trial judge sustaining the findings of the master. In the state of the record already disclosed, it is only necessary to discuss one of them. Interest was allowed on the balance due under the Rdttenhouse contract and retained by Bentley at the rate of 6 per cent, per annum, this being the legal rate in Ohio, in the absence of agreement. It is Bentley’s contention that the contract, though made in Ohio, was to be performed in Michigan, and that the statutory rate in Michigan of 5 per cent, should have been applied, if any was. Reliance is plaeed upon Sloss-Sheffield Steel & Iron Company v. Tacony Iron Company (C. C.) 183 F. 645. In that ease, a contract to be performed in Alabama was made in Pennsylvania, where suit was brought. It was held that the Alabama rate controlled. We think the prevailing rule is, however, that where interest is not specified in the contract, but is awarded merely as damages for the breach thereof, the rate of interest is to be computed according to the law of the state where the court rendering judgment is located. Mather v. Stokely, 218 F. 764 (C. C. A. 1); Equitable Trust Co. v. Western Pacific Railway Co., 244 F. 485 (D. C. N. Y.); George M. Jones Company v. Canadian National Railway Company, 14 F.(2d) 852 (D. C.), affirmed 27 F.(2d) 249 (C. C. A. 6); Spanton & Co. v. Shipping Company, 279 F. 935 (C. C. A. 5); Eccles & Co. v. Strachan Shipping Co., 21 F.(2d) 656 (D. C. Ga.).

We agree with the conclusions of the trial court on all of the issues raised both by the appeal and cross-appeal, and the decree rendered below is hereby affirmed.


author: HUTCHESON, Circuit Judge.

text:
    GEORGE et al. v. MANHATTAN LAND & FRUIT CO. et al.
    No. 6079.
    Circuit Court of Appeals, Fifth Circuit.
    June 29, 1931.

      S. L. Herold, of Shreveport, La., for appellants.
    Edwin C. Hollins and Philip S. Gidiere, both of New Orleans, La., and Tinsley Gil-mer, of Shreveport, La., for appellee.
    Before BRYAN, SIBLEY, and HUTCH-ESON, Circuit Judges.
   HUTCHESON, Circuit Judge.

This appeal presents the question whether the trial court erred in finding as it did,' that appellee, Manhattan Land & Fruit Company, plaintiff below, was the owner of the mineral rights involved in this suit, and as such entitled to its decree against George and Nigh, appellants here, defendants in the court below.

Much testimony, both documentary and oral, was offered. The District Judge found that appellee had conveyed to George its land alone, reserving the mineral rights, and that Nigh was in no better position than George to claim the minerals, because the purported contracts and deeds of purchase between him and George to the mineral interest involved represented not a real, but a simulated, purchase.

It is contended here on the part of Nigh that these findings of the court are without evidence to support them, that George actually bought the minerals from the plaintiff, and that Nigh having purchased in reliance upon the record title to the minerals being in George, whether George did not in fact intend to buy the minerals, and whether Nigh knew that in fact he did not so intend, is equally immaterial. That the instrument in reliance upon which Nigh bought effecting a conveyance of the mineral interests of the appellee to George, Nigh’s binding contract with George for their purchase vested him with a right in them which no pri- or unrecorded facts and no after occurring facts or transactions could affect.

* Appellees on their part contend (1) that the court was right in finding as it did, that the minerals were not conveyed to George, and that the Nigh transaction was not real, but simulated. They further contend that if Nigh’s purchase was real and not simulated, it yet is not effective to make his position better than that of George, because the instrument on which he relied was neither as to the consideration, nor the description, such an instrument as would support the plea of purchase on the faith of the public record. And, third, they contend that the instrument on which George and Nigh rely as a conveyance of the mineral interests is so wanting in description and consideration as that the interveners Harry and the Humble Oil & Refining Company, who purchased the mineral rights from plaintiff in reliance upon their reservation in the deed to George, would be protected as against the instrument under which Nigh claims, as purchasers from the plaintiff upon the faith of a record showing the mineral interests in it.

It will be noted that no contention is here made that Nigh was a bona fide purchaser within the meaning of that term as understood in equity, nor under the statutes and decisions of Louisiana could such a contention be made. Appellant is right in his claim that it is absolutely settled under the jurisprudence of Louisiana that one dealing with lands in Louisiana may look alone to, and fully rely upon, the public records, Dalbey v. Continental Supply Co., 165 La. 636, 115 So. 807; Breaux v. Royer, 129 La. 894, 57 So. 164, 38 L. R. A. (N. S.) 982; McDuffie v. Walker, 125 La. 152, 51 So. 100; and that under this rule knowledge or notice of the true status of the title or of the existence of contracts or understandings affecting it, but not of record, in no manner prevents the acquisition of full title to the realty by one who is a real purchaser on the faith of the public record. John T. Moore Planting Co. v. Morgan’s L. & T., 126 La. 840, 53 So. 22.

It is also true that the same principle applies with equal force in favor of him who acquires a real right, such as a contract of sale, as of the one who buys the legal title itself, Herndon v. Wakefield-Moore Realty Co., 143 La. 724, 79 So. 318; Coyle v. Allen, 168 La. 504, 122 So. 596, for in the state of Louisiana the authorities give to him who holds a contract of sale with the right to specifically enforce it, to all intents and purposes the rights of him who holds a deed, Barfield v. Saunders, 116 La. 136, 40 So. 593; Lehman v. Rice, 118 La. 975, 43 So. 639; Girault v. Feucht, 117 La. 276, 41 So. 572; Baldwin v. Morey, 41 La. Ann. 1105, 6 So. 796.

Appellant correctly states the law of Louisiana upon a purchase on the faith of the record, when he says in his brief: “The question is not what kind of a right the defendant has, or what are the equities of his situation; the question is whether the plaintiff has a right which was spread upon the record, since 'it is settled, as a matter of public policy of the State, that in the absence of record such rights are wholly non-existent as to third persons. This nullity is not relative ; it is absolute. It is not in favor merely of the holder of the legal title, it is in favor of third persons. Accordingly any one claiming any right in immovable property in Louisiana is protected against interference on the part of a plaintiff asserting a right not of record.” Baker v. Atkins, 107 La. 490, 32 So. 69.

If therefore the instrument on which Nigh relies as a conveyance of the mineral rights to George had in law that effect, and if Nigh’s purchase was real and not simulated, the decree was wrong, though the fact be as the record plainly shows that it was, that the instrument upon which he relied was not intended to have the effect he claims for it, and he knew it was not so'intended. On the other hand, it is perfectly plain that one who has a claim of right recorded is protected against any dealings which others may attempt to have in derogation of that right, and that those who would assert against a clear reservation of mineral interests duly recorded, as was the case here, the claim of having dealt on the faith "of a public record with another as the owner of those interests, must point to a record which by clear and definite description conveys them, and must prove either by the record or aliunde that this conveyance was upon a real consideration, not one merely nominal.

Since it is our view that the instruments executed and delivered by the plaintiff to and recorded by George as integral.parts of one transaction construed together make it perfectly plain that the record title to the mineral interests at the time of Nigh’s purported purchase was not in George but in plaintiff, we find it unnecessary to determine whether the District Judge was right in finding the transaction not real, but simulated, though the facts in evidence, particularly the telegram of George, dated June 7, to the president of the land company, “Did you re-tían eighth royalty in Plaquemines property; If so, will you s.ell all or part. Answer collect,” sent twelve days after May 25th, the date on which Nigh claims to have contracted for the mineral rights from George, nine days after May 28th, the date on which Manhattan had sold the mineral rights to Harry, and on the very day Nigh claims to have made the purchase from George, strongly tend to support his finding. This view makes it also unnecessary to determine the effect upon Nigh’s rights of the mineral lease from Manhattan to Harry.

We may assume, without deciding, that the Nigh purchase was a real transaction. We declare it ineffective as to plaintiff, because the instrument on which, if real, it was based was wholly ineffective both when construed by itself, and especially when construed with the instrument which was executed along with it, to vest George with any title of record in the minerals involved. Since upon the assumption that Nigh was a real purchaser he cannot be affected by any oral understandings or agreements, we do not find it necessary to set out any of the evidence except the substance of the four papers executed at the time George made his trade with Manhattan Land and ¡Fruit Company, and the tax redemption certificate filed for record with them.

A brief survey of the jurisprudence of Louisiana will, we think, sustain the position we have taken.

It is the law of Louisiana, just as imperative as the principle above adverted to, that a purchase on the faith of the record protects A purchaser against off record equities and claims; that such purchaser must be able to point to a record which upon serious consideration and by clear description conveys the specific property in controversy. It has been held in Louisiana, Reinerth v. Rhody, 52 La. Ann. 2029, 28 So. 277; McLellan v. Penick (G. C. A.) 289 F. 366, 369, that the recitation of one dollar or five dollars and other considerations is not a sufficient recitation of consideration to support the deed. The instrument upon which defendant Nigh relies recites, “Now therefore, in consideration of the sum of one dollar and other good and sufficient considerations.” A conveyance of land in Louisiana without description, or boundary or location, but merely as “ ‘all other lands owned by the vendor in the State of Louisiana/ is inoperative as notice to the public of any particular tract conveyed, if not void for want of description.” Green v. Witherspoon, 37 La. Ann. 751; Succession of Mrs. Bradley, 8 La. App. 260; Ideal Savings & Homestead Ass’n v. Gould, 163 La. 442, 112 So. 40; Simar v. Ledoux (La. Sup.) 132 So. 125; Hargrove v. Hodge, 9 La. App. 434, 121 So. 224.

The instrument relied on by Nigh contains no description of any specific property, the only description being “all its present right, title and interest in and to all its lands in the Parish of Plaquemines, in the State of Louisiana.” We think there can be no question but that such a description would not be sufficient to seize hold of particular property and support a claimed purchase of that property in reliance upon the public record.

We do not understand appellant to controvert the view that the instrument, taken by itself, was indefinite both in point of consideration’ and of description. We understand his position to be that it must be taken in connection with the quitclaim deed to George, dated December 21st, but really executed on the same day and filed for record with it. That that deed contains a full description of the land together with a reservation of the mineral rights in them, and shows a consideration of $1,000. That the instrument dated December 23d on which he relies, reciting the fact that the lands had been quit-claimed and agreeing to execute and deliver such other instruments as may be necessary to quitclaim to and vest in George all its lands in the parish of Plaquemines, must, in order to be given any effect, be construed as intending to convey and conveying the reserved mineral rights for a part of the $1,-000 consideration. That the two instruments thus eons’trued together, the one supplies and obviates the deficiencies of the other.

We agree with appellant that the instruments should be construed together, Lowish v. Rowland, 86 Ind. App. 597, 158 N. E. 913; Carr v. Hays, 110 Ind. 408, 11 N. E. 25, and that persons dealing with the record are charged with the information as to the state of the title which both together give. We do not agree that as so construed together they furnish any basis for the claim put forth by Nigh that they either intended or effected a conveyance of the mineral interests which they expressly reserved to the grantors. Instruments, to arrive at their full intent and meaning, must be construed as a whole. In such construction neither word nor clause in an instrument may live if it runs counter to the purport and tenor of the whole. Clement v. Dunn, 168 La. 394, 122 So. 122. In that case though the instrument in one clause expressly declared that it conveyed a fourth interest in the land, the court, construing the instrument as a whole, determined that its plain purpose was to convey title to one-fourth of the mineral interests only and refused to give effect to this plainly aberrant clause.

It is the law in Louisiana as elsewhere that a conveyance of land by specific description, nothing else appearing, will convey the mineral rights of the grantor whether the mineral estate was then joined with or dismembered from.the land. Powell v. Roy, 14 La. App. 663, 130 So. 629. It is also we think entirely plain that where a transaction such as the one in question here occurs, with a distinct reservation to the grantor of his oil and mineral rights, thus effecting a dismemberment of the ownership .and separating it into two estates, one a real ownership in the land, the other an incorporeal ownership of a real right in the nature of a servitude not a real immovable, but classed as such because of the nature of the thing to which it adheres, Shaw v. Watson, 151 La. 893, 92 So. 375, 377; Frost-Johnson v. Sailing’s Heirs, 150 La. 756, 91 So. 207; Strother v. Mangham, 138 La. 437, 70 So. 426; Hanby v. Texas Co., 140 La. 189, 72 So. 933; VanderSluys v. Finfrock, 158 La. 175, 103 So. 730; Wilkins v. Nelson, 155 La. 807, 99 So. 607; Bodcaw Lumber Co. v. Cox, 159 La. 810, 106 So. 313; Iberville v. Texas Co., 14 La. App. 221) 128 So. 304; Palmer Corporation v. Moore (La. Sup.) 132 So. 229; Arent v. Hunter (La. Sup.) 133 So. 157; Wemple v. Nabors, 154 La. 483, 97 So. 666, no reasonable or fair construction of the second instrument in the light of the first could give it the effect of a conveyance upon consideration, or an agreement upon consideration to convey the mineral interests so carefully and fully reserved in the deed executed as a part of the same transaction, and upon the consideration which it recited of $1,000.

Appellant thus finds himself as to his instrument of reliance in the situation, if he relies upon it alone, of having an instrument ineffective for want both of consideration and of description, while if he looks to the other also, with the result that the defect in description is supplied, he finds the entire consideration absorbed by the terms of that deed with nothing left over for the seeond deed; and more — finds himself fully charged by the record with knowledge of the fact that carefully and completely plaintiff has reserved from sale all of the mineral rights in the lands involved.

Whether then the case is disposed of by consideration of the second instrument alone, or by consideration of both together, the instrument of reliance has not the effect claimed for it, and appellant cannot prevail.

The judgment of the court below is affirmed.

       (1) A quitclaim deed from Manhattan Land & Fruit Company to George dated December 21, describing and conveying the lands in controversy subject to unpaid taxes, for a consideration of $1,000 reserving and excepting from the deed, however, all gas, oil, and other minerals.
      (2) Three papers bradded together as one, each dated December 23, each referring to the quitclaim deed above as executed on the same day with it. (a) An instrument referring to the quitclam deed above and reciting, “In consideration of the foregoing and $1 and other good and sufficient considerations it is agreed” “That Manhattan Land & Fruit Co. will execute and deliver such other instruments as maybe necessary to quitclaim to and vest in the said Samuel George all its present right, title and interest in and to all its lands in the Parish of Plaque-mines, State of Louisiana,” and it is further agreed that Manhattan gives George the right to redeem the lands from tax sale and take title in the name of the company, appointing him its agent to do so and further agreeing that a mandatory injunction may be had to enforce the agreement, (b) An affidavit of the president of Manhattan Land & Fruit Company that the company was the owner subject to tax sales of certain lands described in the deed first above set out. That; the land is neither mortgaged nor incumbered and that he has the authority to execute the deed, (c) Consent by the stockholders to the execution of the quitclaim deed first above described.
      (3) Certificate dated January 25, 1928, from the state land office that the Manhattan Land & Fruit Company had through George paid the delinquent taxes on the land described in the quitclaim deed first above, and that the lands are redeemed to Manhattan Land & Fruit Company.


author: PHILLIPS, Circuit Judge.

text:
    DARBY-LYNDE CO. v. COMMISSIONER OF INTERNAL REVENUE.
    No. 399.
    Circuit Court of Appeals, Tenth Circuit.
    June 18, 1931.
    Chas. P. Gotwals, of Muskogee, Okl. (John T. Gibson, Wm. A. Killey, and James D. Gibson, all of Muskogee, Okl., on the brief), for appellant.
    F. Edward Mitchell, of Washington, D. C. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key and John H. MeEvers, Sp. Assts. to Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and William E. Davis, Sp. Atty., -Bureau of Internal Revenue, both of Washington, D. C., on the brief), for appellee.
    Before COTTERAL, PHILLIPS, and MeDERMOTT, Circuit Judges.
   PHILLIPS, Circuit Judge.

For several years prior to January 1, 1924, Lynde and Darby, a partnership consisting of C. F. Lynde andN J. F. Darby, owned and operated certain oil and gas leases. Each of the partners owned a one-half interest in the partnership. About January 1, 1924, they incorporated, under the laws of Delaware, the Darby-Lynde Company with 10,000 shares of non-par value stock, with its principal office and place of business at Tulsa, Oklahoma. On January 21, 1924, the partnership conveyed all of its assets, including such oil and gas leases to such corporation in exchange for its capital stock. Such stock was issued to the following named persons in the following amounts: C. F. Lynde 4,750 shares, Elizabeth W. Lynde 250 shares, J. F. Darby 4,999 shares, and Carl Purcell one share.

In its income tax return for 1924, the corporation added $89,481.52 to its reserve for depletion based upon discovery value of the oil and gas leases, under section 204 (e), Revenue Act 1924 (43 Stat. 260 [26 USCA § 935 note]). The Commissioner disallowed the depletion deduction based upon discovery value and determined a deficiency accordingly. The action of the Commissioner was affirmed by the Board of Tax Appeals.

A taxpayer is not entitled, as a matter of right, to make any deductions from income for depletion on account of oil extracted and sold during a taxable year. Stanton v. Baltic Mining Co., 240 U. S. 103, 36 S. Ct. 278, 60 L. Ed. 546; Burnet v. Thompson O. & G. Co., 283 U. S. 301, 51 S. Ct. 418, 75 L. Ed. 1049; United States v. Biwabik Min. Co., 247 U. S. 116, 38 S. Ct. 462, 62 L. Ed. 1017; Stratton’s Independence v. Howbert, 231 U. S. 399, 34 S. Ct. 136, 58 L. Ed. 285. Authority for such deduction must be found in the applicable statutes. Burnet v. Thompson O. & G. Co., supra.

Section 204 (e), supra, in part provides:

“The basis upon, .which depletion, exhaustion, wear and tear and obsolescence are to be allowed in respect of any property shall be the same as is provided in subdivision (a) or (b) for the purpose of determining the gain or loss upon the sale or other disposition of such property, except that in the case of mines, oil and gas wells, discovered by the taxpayer after February 28, 1913, and not acquired as thd result of purchase of a proven tract or lease, where the fair market value of the property is materially disproportionate to the cost, the basis for depletion shall be the fair market value of the property at the date of discovery or within thirty days thereafter; but such depletion allowance based on discovery value shall not exceed 50 per centum of the net income (computed without allowance for depletion) from the property upon which the discovery was made, except that in no case shall the depletion allowance be less than it would be if computed without reference to discovery value.”

The partnership and the members thereof and the corporation were essentially different entities. Marr v. United States, 268 U. S. 536, 45 S. Ct. 575, 69 L. Ed. 1079. The corporation is the taxpayer. The oil and gas wells in question were not discovered by such taxpayer but by its predecessor, the partnership, and were acquired by the taxpayer as a result of the purchase of proven leases. It follows that the basis for the allowance of depletion must be the same as is provided in section 204 (a), Revenue Act 1924, (43 Stat. 258 [26 USCA § 935 and note]), for the determination of gain or loss upon the sale or other disposition of such leases.

Section 203 (b) (4), Revenue Act 1924 (43 Stat. 256, 26 USCA § 934 (b) (4), provides that, where property is transferred to a corporation by one or more persons solely in exchange for stock or securities in such corporation and, immediately after the exchange, such person or persons are in control of the corporation and, in ease the exchange is by two or more persons, the amount of stock or securities received by each is substantially in proportion to his interest in the property prior to the exchange, no gain or loss shall be recognized from the transaction. Section 203 (i), Revenue Act 1924 (43 Stat. 258, 26 USCA § 934 (i), provides that “control” means the ownership of at least 80% of the voting stock and of at least 80% of the total number of shares of all other classes of stock of the corporation. The transaction between the partnership and the corporation clearly falls within the purview of section 203 (b) (4), supra.

Section 204 (a) (8), Revenue Act 1924 (43 Stat. 259, 26 USCA § 935 (a) (8), reads as follows:

“If the property (other than stock or securities in a corporation a party to a reorganization) was acquired after December 31, 1920, by a corporation by the issuance of its stock or securities in connection with a transaction described in paragraph (4) of subdivision (b) of section 203 (including, also, cases where part of the consideration for the transfer of such property to the corporation was property or money in addition to such stock or securities), then the básis shall be the same as it would he in the hands of the transferor, increased in the amount of gain or decreased in the amount of loss recognized to the transferor upon such transfer under the law applicable to the year in which the transfer was made.”

The sale to the corporation in the instant ease took place in 1924. The 1924 act provides that no gain or loss shall be recognized to the transferor from such a transaction. Section 203 (b) (4), supra.

Therefore, the basis for computing gain or loss from the sale or other disposition of the leases, under section 204 (a) (8), is the same as it would have been were the leases in the hands of the partnership, that is, the cost of the oü and gas leases to the partnership. It follows that the basis for computing depletion is the cost of the oil and gas leases to the partnership.

We conclude that the basis of computing depletion for 1924 is neither the discovery value nor the cost of such leases to the corporation, but the cost thereof to the partnership.

The judgment is accordingly affirmed.


text:
    CHASE v. BUSINESS MEN’S ASSUR. CO. OF AMERICA.
    No. 375.
    Circuit Court of Appeals, Tenth Circuit.
    June 18, 1931.
    Joseph E. Evans, of Ogden, Utah, for appellant.
    Solon T. Gilmore, of Kansas City, Mo. (John Gilmore, of Kansas City, Mo., and Thatcher & Young, of Ogden, Utah, on the brief), for appellee.
    Before LEWIS, PHILLIPS, and .Me-DERMOTT, Circuit Judges.
   PHILLIPS, Circuit Judge.

This is an action on a policy of health and accident insurance. The amended complaint in part alleged:

• “That between June 21, 1929, and July 19, 1929, at Ogden, Utah, said A. Harris Chase was totally and continuously disabled from performing any and every kind of duty pertaining to his occupation, and that on said July 19, 1929, he died, .and that said disability and death were caused by typhoid fever which was occasioned by and resulted from bodily injuries effected solely through accidental means, to-wit, by his drinking polluted and contaminated water, to-wit, water containing typhoid bacilli, at Ogden, Utah, on or about June 13,1929, believing such water to be pure and fit for drinking purposes, being uninformed of tbe polluted condition of such water and being ignorant of the fact that it contained typhoid bacilli.”

The trial court sustained a demurrer to the amended complaint on the ground that it did not state facts sufficient to constitute a cause of action. Plaintiff declined to plead further and the court entered a judgment of dismissal.

The insuring clause of the policy in part provided:

“Business Men’s Assurance Company of America hereby insures A. Harris Chase, whose occupation is Manager, against loss resulting from bodily injuries effected solely through accidental means, and against loss resulting from sickness contracted after fifteen days from the date hereof, subject to the provisions and limitations hereinafter contained.”

Art. I of the policy provided for temporary or permanent loss of time from sickness.

Art. II provided for temporary or permanent loss of time from bodily injuries.

Art. Ill in part provided:

“If such injuries shall totally and continuously disable the insured from date of accident from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous total disability, but within five years from date of accident, shall result, independently of all other causes, in any one of the losses enumerated below, or within ninety days from the date of the accident, irrespective of' total disability, result in like manner in any one of such losses, the Company will pay the sum set opposite such loss, which sum shall include any claim for disability.
“Indemnity for Loss of Life shall be Payable to Doris M. Chase (wife), Benefiei-ary.
“Principal sum $5,000.00
“For Loss of — Life The Principal Sum.”

Art. VII provided:

“Blood poisoning or septicemia resulting from bodily injuries shall be deemed to be included in said term, bodily injuries.”

Art. XII in part provided:

“The accident insurance under this policy does not cover any injury, fatal or otherwise * * * caused directly or indirectly * * * by any disease or medical or surgical treatment therefor. * ' * * The health insurance under this policy does not cover « -5 « disability for any period for which the insured has either made claim or may become entitled to indemnity from this or any other company, on account of injuries by accidental means. * * * The term, bodily injuries, wherever used in this policy, shall be understood to be the bodily injuries effected as described in the insuring clause.”

It is clear, from the foregoing provisions, that it was intended the policy should insure against disability caused by sickness and by bodily injuries, and for death resulting from “bodily injuries effected solely through accidental means”; and that it should not insure against death resulting from disease.

The rule is well settled in the national courts that contracts of insurance, like other contraéis, should be construed according to the sense and meaning of the terms which the parties have used, and that those terms ought to be taken, understood and given effect in their plain, ordinary and popular sense, and that it is only where, because .of ambiguity in the language employed, the contract is fairly susceptible of two interpretations — one favorable to the insured and the other favorable to the insurer — that the rule of liberal construction in favor of the insured may be applied. Liverpool & London & Globe Ins. Co. v. Kearney, 180 U. S. 132, 135, 136, 21 S. Ct. 326, 45 L. Ed. 460; Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 462, 463, 14 S. Ct. 379, 38 L. Ed. 231; New Amsterdam Casualty Co. v. Central National Fire Ins. Co. (C. C. A. 8) 4 F.(2d) 203, 207-209; Hawkeye Commercial Men’s Ass’n v. Christy (C. C. A. 8) 294 F. 208, 211, 40 A. L. R. 46; United States F. & G. Co. v. Centropolis Bank of Kansas City, Missouri (C. C. A.) 17 F.(2d) 913, 53 A. L. R. 295; Firemen’s Ins. Co. v. Lasker (C. C. A. 8) 18 F.(2d) 375, 379; United States F. & G. Co. v. McCarthy (C. C. A. 8) 33 F.(2d) 7, 10, 70 A. L. R. 1447; East & West Ins. Co. v. Fidel (C. C. A. 10) 49 F.(2d) 35; United States F. & G. Co. v. Guenther, 281 U. S. 34, 50 S. Ct. 165, 74 L. Ed. 683.

The policy expressly provided that the insurance against loss of life should cover only when death resulted “from bodily injuries effected solely through accidental means” and that the “accident insurance * * * ¿oes not cover any injury, fatal or otherwise, * * * caused directly or indirectly * * * by any disease.”

Therefore, the question is whether the death of the insured, caused by typhoid fever contracted by drinking water contaminated with typhoid bacilli without his knowledge of such contamination, resulted “from bodily injuries effected solely through, accidental means,” rather than from disease.

It is difficult, if not impossible, to draw an exact line of demarcation between bodily injuries and bodily disease. The two concepts are not always exclusive of each other; they often overlap. Pathogenic bacteria or disease germs may be taken into the system through the nose, the mouth or other normal channels of entry. Usually the absorption into the system is incidental to a normal bodily process. In such cases where disease follows, common understanding looks upon, and common speech describes the introduction of such germs into the system as the contracting of a disease rather than the suffering of an accidental injury. On the other hand, where the channel of infection is abnormal in that it results from trauma, — a bruise, a cut, a wound — the layman views, and in his everyday speech describes the -event as an accident. Connelly v. Furniture Co., 240 N. Y. 83, 147 N. E. 366, 39 A. L. R. 867.

It" is true that where an accidental injury to the body brings about or causes a disease, which in turn causes death, the eases generally hold the accidental means is the cause of such death. Western Commercial T. Ass’n v. Smith (C. C. A. 8) 85 F. 401, 404, 40 L. R. A. 653; New Amsterdam C. Co. v. Shields (C. C. A. 6) 155 F. 54; 1 C. J. p. 430. In such a ease, the disease is an effect of the accident, the incidental means produced and used hy the original cause, the accident, to bring about its fatal effect, a mere link in the chain of eausation between the accident and the death; and the death is attributable to the aeeident. Western Commercial T. Assn. v. Smith, supra. But there is a clear distinction under this policy between bodily injuries accidentally incurred resulting in disease which causes death, and disease accidentally contracted resulting in bodily impairment which causes death. In the instant ease, there were no accidental means effecting a bodily injury which brought about or caused the disease from which death resulted. Rather, there was an unintentional introduction of typhoid bacilli into the body, which set up the disease of typhoid fever, and which itself caused physical impairment resulting in death. There-was no bodily injury caused by accidental means. On the contrary, there were bodily injuries caused by.disease which were excluded from the coverage of the policy.

Counsel for plaintiff contends that the introduction of typhoid bacilli by insured into his system was accidental in the sense that it was unintentional and that an infectious disease, such as typhiod fever, injures the body, and that, therefore, as the effeet of such aeeident, insured suffered bodily injuries resulting in his death. In the ordinary sense of the words, we do not regard the contracting of an infectious disease, through the normal consumption of food, air or water infected with the bacilli which causes such disease, as the suffering of bodily injuries from accidental means. We regard it, rather, as the contracting of a disease. In their ordinary and popular sense, the phrase “bodily injuries” conveys the idea of a cut, a bruise or a wound rather than a physical impairment caused by disease.

But, even if we assume that typhoid fever or a typhoid infection is a bodily injury, the policy by its express terms provides that the accident insurance shall not cover any injury caused directly or indirectly by any disease. See Lincoln Nat. Life I. Co. v. Erickson (C. C. A. 8) 42 F.(2d) 997; Bacon v. U. S. Mut. Accident Ass’n, 123 N. Y. 304, 25 N. E. 399, 9 L. R. A. 617, 20 Am. St. Rep. 748. It may be that there is no scientific basis for drawing a distinction between a bruised finger as a bodily injury and typhoid fever as a disease, but the policy provision, last referred to, draws a clear distinction between bodily injury and disease. Likewise, the ordinary man makes a distinction between them in his common speech. And, in construing this insurance contract, we are concerned not with scientific definitions but with the ordinary meaning of common words. The policy, therefore, does not cover death resulting from typhoid fever not caused or brought about by accidental bodily injuries, unless it was intended that the word “disease” should not include infectious and contagious diseases. The language of the policy discloses no intent to so limit the meaning of the word “disease.” On the contrary, the provisions of Art. VII, which expressly provided that “blood poisoning or septicemia resulting from bodily injuries shall be deemed to be included in said term ‘bodily injuries.’ ” clearly indicates, under familiar rules of construction, the intent to exclude from the coverage “bodily injuries” caused by any other infectious disease. Moreover, the fact that the parties wrote in such express provision with. reference to septicemia indicates that they were of the’ opinion the general language in other provisions of the policy excluded from the coverage injuries caused by infectious diseases.

• To hold otherwise, we must construe the policy, which provided that it does not insure against bodily injuries caused directly or indirectly by disease, as insuring against death resulting from all infectious and contagious diseases, because a normal person will «not intentionally expose himself to the bacteria which cause such diseases, and the contracting thereof will always be accidental.

We have carefully considered the cases relied upon by counsel for plaintiff. In some of such cases, the insured suffered bodily injuries as the result of accident which in turn •caused a disease from which he died. In others, there were no contractual provisions similar to those in the instant case, limiting the coverage. Others were eases of ordinary poisoning, not usually regarded as a disease. We think they are distinguishable from the instant case.

It is our conclusion that death resulting from typhoid fever is not -within the coverage of this policy. The judgment is therefore affirmed.