author: GIBSON, District Judge.

text:
    McMURRAY et al. v. BROTHERHOOD OF RAILROAD TRAINMEN et al.
    No. 2454.
    District Court, W. D. Pennsylvania.
    Jan. 14, 1931.
    Van A. Barrickman and Daniel S. Horne, both of Pittsburgh, Pa., for plaintiffs.
    E. E. McMonigle and E. B. Strassburger, both of Pittsburgh, Pa., for defendants.
   GIBSON, District Judge.

The defendants have moved to dismiss the amended bill of complaint, basing their motion upon the contention that it does not set forth a case within the equitable powers of the court.

The bill is quite long and somewhat confusing. It-sets forth one side of a controversy between two subordinate lodges of the Brotherhood of Railroad Trainmen, which was heard before all the tribunals of the brotherhood, with varying results, but with plaintiffs’ lodge finally losing before the brotherhood’s board of appeals. The dispute was, and is, in respect to seniority rights upon a “run” upon the Pennsylvania Railroad between Pittsburgh and Dennison, Ohio. The run in question is one known as an inter-seniority district run, that is, one not wholly within one seniority district. By regulations established by mutual agreement between the Pennsylvania Railroad and the Brotherhood of Railroad Trainmen, trainmen are entitled, ability and fitness being equal, to promotion or choice of runs according to seniority in service. The railroad is divided into a number of seniority districts, and each trainman, as a general proposition, is possessed of seniority rights only within his own district. The exception to this rule is found in connection with interseniority district road runs. As to such runs, a regulation, adopted April 1, 1927, by the railroad management and the Brotherhood of Railroad Trainmen and Order of Railroad Conductors, sets forth:

“3-C-l. (a) When inter-seniority district road runs are established, trainmen of the seniority districts over which such runs operate, will participate on the basis which the ratio of mileage in each seniority district bears to total mileage in such service.”

Plaintiffs all reside within what is known ..among trainmen employed by the Panhandle Division of the Pennsylvania Railroad as the Carnegie Scully seniority district, and, 38 per cent, of the disputed run being within that district, under the regulation quoted, they .claim seniority rights on the Dennison-Pitts-burgh through run to the extent of 38 per cent., that is, that the Scully district employees should handle 38 per cent.. of the through freight between Pittsburgh and Den-nison.

The persons whose interests are in conflict with those of the plaintiffs, none of whom have been joined as defendants, are trainmen who are members of Local Lodge No. 421 of the Brotherhood of Railroad Trainmen located at Dennison, Ohio. The bill of complaint is quite discursive and does not set forth a clear and continuous history of the freight operations on the Panhandle Division between Pittsburgh and Dennison prior to 1922 or 1923. As we read it, however, the bill states that immediately prior to the years last mentioned a large part of the freight was relayed at Collier yard (the limit of the Scully seniority district), and the rest was carried by through trains operated by trainmen of the Dennison district. In 1922 or 1923, the superintendent of the division discontinued a number of “regular assigned freight service crews” between the Carnegie Scully District and Dennison, and by that action it is alleged the tonnage to be carried was “automatically diverted” to the Denni-son East Pool, and the Camegie-Seully trainmen wfere deprived of all the through runs between Pittsburgh and Dennison. Local Lodge No. 571, of which plaintiffs are members, protested to the Railroad Management in respect to this action of the Superintendent, and asked a reinstatement of the former arrangement. Objection having been made (the bill does not state by whom) to this request, the controversy “was referred to the trainmen themselves, in order to reach an adjustment of the conditions existing, the conclusion reached to be submitted to the management of said railroad for their concurrence.” Pursuant to this reference, a committee of the Brotherhood of Trainmen, with a subcommittee of the Order of Railroad Conductors and the Enginemen and' Firemen, considered the matter and reported against the contention of Lodge No. 571 (plaintiffs). That lodge appealed to the full general committee of the brotherhood, which sustained plaintiffs’ contentions. The Dennison East Trainmen, Lodge No. 421, thereupon appealed to the board of directors of the brotherhood, which sustained the action of the general committee., From this decision a further appeal was taken to the board of appeals of the brotherhood, the court of last resort within the order. By the constitution of the brotherhood (attached to bill), it is' provided: “Such decision (of Board of Appeals) shall be the final adjudication of any and all rights and questions included in the appeal.” The board of appeals sustained the contention of the opponents of Lodge No. 571, to which plaintiffs belong, and reversed the decision of the general committee, in the following words:

“After careful consideration of all the evidence in the case, it was the opinion of the Board of Appeals that the action of the full general committee in apportioning thirty-eight (38%) per cent, of the work to the Scully District, under application of regulation 3-G — 1, established retroactive seniority on through runs in operation before the inception of regulation 3-C-l. Therefore, the Board sustains the appeal.”

From the decision of the board of appeals thé plaintiffs are, in effect, appealing to this court. Apparently recognizing the rule to the effect that courts will not interfere with the internal operations of trades unions or like associations unless the ag-‘ grieved member has been deprived of a pecuniary right by irregular procedure within the association or by fraud, plaintiffs have declared that deprivation of their seniority rights constituted an unlawful taking of their property rights, and that the decision of the board of appeals “was the result of a corrupt, wilful, fraudulent and unlawful conspiracy between the members of Local Lodge No. 421 of the East Dennison District and the Board of Appeals of the Brotherhood of Railroad Trainmen to deprive the trainmen of the Carnegie Scully District, including the plaintiffs herein, of their seniority rights to serve as trainmen out of the Said Carnegie Scully District in the operation of through trains on the Pan Handle Division * » ■* and to deprive them of their livelihood and to assure for the trainmen of Lodge No. 421 the runs secured to the trainmen of the Carnegie Scully District on said Pan Handle Division of the Pennsylvania Railroad.” The allegations as to deprivation of a property right and fraud were not in the original bill, but were inserted by amendment after motion to dismiss had been made. The bill of eomplaint prays this court to make an order setting aside the decision of the board of appeals, and to declare it null and void; also to enjoin the defendants from putting the order into operation.

As presented by the bill, the matter in dispute is one of interest only to members of the Brotherhood of Trainmen. The Penn-, sylvania Railroad, although the right to operate certain of its trains is in dispute, is declared to have no part in the controversy and consequently, it is stated, has not been joined as a party to the suit. Assuming the truth of, this contention for the purpose of argument, and that the railroad is not an essential party herein, we have a dispute between members of the Brotherhood of Trainmen in respect to the gcope of rights or privileges which came to them only through and from their order. Ordinarily, in such controversies the disputants are concluded by the final order of their association; the power which gave can take away. But, claim plaintiffs’ counsel, the bill in the instant case presents an exception to the rule in that it alleges that the pecuniary rights of plaintiffs are involved, and that such rights have been taken away by fraud.

As to the charge of fraud, an examination of the bill will disclose that it is exceedingly vague, and sets forth a conclusion rather than fact. It alleges no fraud on the part of any'of the defendants named, but asserts that the decision of the board of appeals was the “result” of a conspiracy between the board and Lodge No. 421, neither the lodge nor the members of the board being defendants herein. Even if they had been made defendants, the charge of fraud is insufficient.

As to the claim of pecuniary injury, it is at least doubtful whether the seniority rights which are based upon the joint agreement between the brotherhood and the Pennsylvania Railroad are property rights of such a nature as to justify the court in intervening in the internal operations of the brotherhood. The railroad and the brotherhood, by mutual consent, can vacate the seniority regulations at any time, and either party can withdraw from them after thirty days notice to the others. The right is, therefore, somewhat intangible.

Passing by, however, the questions as to the sufficiency of the charge of fraud and of the claim of deprivation of property rights, it seems plain to us that the bill of eomplaint must be dismissed by reason of its failure to inelude essential parties.

The plaintiffs base their claims to seniority rights upon the through runs between Dennison and Pittsburgh upon regulation 3-C-l, which was adopted by agreement between the railroad and the brotherhood. Where the scope and effect of that regulation is a subject of inquiry, it would seem that the railroad should be given the opportunity to be heard, and especially so in view of the fact that the personnel of its train crews is to be affected by the conclusion reached.

It may be that the railroad is not concerned in the subject-matter of the instant ease, as stated in the bill of eomplaint, but the same statement certainly cannot be made in respect to the members of Local Lodge No. 421 of the Brotherhood of Trainmen. If the railroa’d is not interested, the members of that lodge are the only persons, other than plaintiffs, who are concerned in the decree in the instant matter. The present defendants certainly have, no interest in the subject-matter of this action other than the possible desire to maintain the power of the board of appeals to make final decisions in controversies between members of the brotherhood, or between subordinate lodges. But the members of Lodge No. 421 have just the same claim of right, as appears from the bill, as have the plaintiffs. Such members, the bill discloses, have contested the claims of plaintiffs in every tribunal of the brotherhood, and have been ultimately successful therein, and they cannot properly be excluded from participation in an action which is, as heretofore stated, in effect an appeal from the'final court of the brotherhood. Plaintiffs have claimed,. and their suit is founded thereon, that seniority rights upon the through runs are property rights. If so, this court cannot well make a decree which will wipe out the claimed property rights of the members of Lodge No. 421 without giving them an opportunity to be heard. The Dennison trainmen are probably not resident within this district, and so cannot be made parties in the instant aetion. It seems quite possible that they, with the present defendants, could he joined in another district; but whether this be correct or not, they are essential parties, and a court of equity can properly make no effective order unless they be joined as defendants. Ex parte Equitable Trust Co. (C. C. A.) 231 F. 571, 592; California v. S. Pac. Co., 157 U. S. 229, 15 S. Ct. 591, 39 L. Ed. 683.

The bill of complaint must be dismissed.


source: Caselaw Access Project

author: DAWKINS, District Judge.

license: Public Domain

text:
    UNITED STATES v. HOSIER et al.
    No. 5895.
    District Court, W. D. Louisiana, Shreveport Division.
    Feb. 10, 1931.
    Philip H. Mecom, U. S. Atty., and E. A. Mottet, Asst. U. S. Atty., both of Shreveport, La.
    Thomas W. Robertson, of Shreveport, La., for defendants.
   DAWKINS, District Judge.

In the above numbered and entitled cause defendants have filed motions for a bill of particulars and to quash the indictment.

The charge is one of conspiracy, and the motion for particulars asks that the government be required to “name all the persons with whom said conspiracy was alleged to have been entered into,” and “that the date' on which said conspiracy is alleged to have been formed and entered into be given,” the time it is alleged to have existed, place where same was committed, and where it was begun or started; and, further, whether the government will attempt to introduce proof as to other overt acts than the twelve alleged in the indictment; that, on failure so to do, its proof be limited to those alleged; and, finally, “if any search warrant were used that same be produced and filed.”

The reason for seeking to quash the bill is, as alleged by defendants, that Hosier and Renno were charged to have conspired with some fifteen other defendants, who were not indicted, and, in view of this fact, that “said named parties other than the said movers, are alleged to be co-defendants, and therefore cannot be used as witnesses against your movers.”

The motions were submitted December 5, 1930, on briefs to be filed within twenty days, but up to this time none have been furnished by either side. Inasmuch as the regular term of court convenes on the 16th of February, 1931, the matter will now be disposed of.

As to the motion for a bill of particulars, the same does name specifically fifteen of the persons with whom defendants are alleged to have conspired, and “with divers other persons to your grand jurors unknown.” If the “other persons” are really unknown to the prosecution, this would not prevent it from making proof of their existence and activities, but, should the defendants be taken by surprise, they will be afforded reasonable opportunity to meet the proof offered by the government. The date of entering into the conspiracy is also sufficiently alleged, in that it is charged to have commenced on June 1, 1924, and continued until “about August 1, 1930,” and the place set forth is Bossier parish, within the jurisdiction of this court. The government does not have to allege the details of its evidence, and, if it proves the alleged unlawful agreement, and that the same was made in Bossier parish, this would be sufficient. The prosecution will, of .course, be entitled to offer proof of any of the twelve overt acts alleged, and my appreciation of the law is that others may be shown, but only as corroborative of those charged, but the defendants could not be convicted, unless the prosecution successfully established at least one of the acts alleged. If any search warrant was used, the defendants may ascertain that fact from the records of the Commissioner, as well as the prosecution, but there is no motion to suppress any of the evidence before the court, and hence the relevancy of a search warrant at this times does not appear.

The motion for particulars will therefore be overruled.

With reference to the motion to quash, it was within the judgment of the grand jury as to who should be indicted and over which the court has no control. Whether or not the other persons named and not indicted may be used as witnesses will be determined at the proper time when the case is tried. ■

The motion to quash will also be overruled.

The rights of the defendants are reserved to present and have settled bills of exception or other matters necessary to properly present these rulings to the appellate court.


text:
    McCLURE v. NEW YORK LIFE INS. CO. COMMERCIAL NAT. BANK OF SHREVEPORT v. PRUDENTIAL INS. CO. McCLURE v. GUARDIAN LIFE INS. CO. OF AMERICA.
    Nos. 1954, 1955, 1958.
    District Court, W. D. Louisiana, Shreveport Division.
    Feb. 9, 1931.
    Pugh, Grimmet & Boatner and P. Simon, all of Shreveport, La., for plaintiffs.
    Thatcher, Browne, Porteous & Myers, of Shreveport, La., for defendant New York Life Ins. Co.
    Melvin P. Johnson, of Shreveport, La., for defendant Prudential Ins. Co.
    Hardy & Hardy, of Shreveport, La., for defendant Guardian Life Ins. Co.
   DAWKINS, District Judge.

The above suits were brought by the widow of J. D. McClure, deceased, and the tutor of his minor children, the Commercial National Bank of Shreveport, upon the double indemnity provisions of life insurance policies, providing that, in event of his death resulting directly and independently of all other causes, from bodily injury, effected solely through external, violent, and accidental causes, the insurer should pay twice the face of the policies.

The defendants have filed in each case similar motions to dismiss, asking that the plaintiff be required to furnish further particulars as to the manner of the death of McClure, as fpllows:

“(a) The place and time.
“(b) What were the circumstances under which the deceased lost his life.
“(c) The exact manner of his death or of finding the body.
“(d) The manner of and circumstances surrounding the alleged accidental discharge of the shot-gun.
“(e) The agency" by which the discharge was fired.”

The allegation as to death in each petition is as follows: “That on the 24th day of October, 1929, petitioner’s husband, the said John Dale McClure, died, his death resulting from bodily injury effected directly, and independently of all other causes, through the accidental discharge of a shot-gun, causing immediate death, and that due proof of such injury and death has been furnished to said - Insurance Company.”

It will be noted that the plaintiff does not allege that the gun by which McClure was killed was discharged in the hands of some one else, or by some accidental manner, in the hands of the deceased. If the former were true, there might arise, as a matter of defense, the question of whether McClure was the aggressor in a personal difficulty with some other person, whereas, in the latter event, it might plead suicide. Then, too, I think the defendants are entitled to know the place where the alleged accident occurred; otherwise the information demanded seems to me to involve mere details of evidence which the plaintiff does not have to allege. Of course, if the plaintiff does not know whether the gun was discharged by some one else or in the hands of the deceased, she could simply allege the circumstances of the finding of the body, weapon, etc. In that event, it would be a question of fact for the jury to decide whether the death was accidental within the meaning of the policy, as neither suicide nor murder will be presumed from the bare fact of the killing of an individual by a gunshot wound. Missouri State Life Insurance Co. v. Roper (C. C. A.) 44 F.(2d) 897.

The plaintiff will therefore be required to amend, by naming the place, that is, on what part of the premises McClure was killed, and whether, if she knows, by some one else, and, if not, the circumstances surrounding the finding of the body.


author: JOHNSON and WATSON, District Judges.

text:
    In re PETITION FOR SPECIAL GRAND JURY.
    District Court, M. D. Pennsylvania.
    May 28, 1931.
   JOHNSON and WATSON, District Judges.

We have before us the petition of a number of citizens of Luzerne county alleging violations of the prohibition and other laws of the United States of America, and requesting the impaneling of a special federal grand jury from Luzerne county, to be se lected by certain persons and organizations from Luzerne county. This court is in hearty sympathy with the desire of the petitioners to secure the enforcement of the laws of the United States, and will use the proper legal methods to enforce these laws.

This petition suggests the selection of the special grand jury by certain citizens and organizations of Luzerne county. Such method of selection is not permitted by the laws of the United States. The law requires that the selection of names to go into the jury box be made by the commissioner of jurors and by the clerk of the court. Section 412, United States Code Annotated, ti-tie 28. No other person or official has the right to participate in such selection. U. S. v. Murphy (D. C.) 224 F. 554.

The petition further suggests that the special grand jury be selected from Luzerne county. While a grand jury may be selected from a particular section of the district, such method of selection should not be employed unless found necessary; such method of selection has never been used in this district, and it might result in a prejudiced grand jury, and an unfair investigation, and create an unwise precedent. Heretofore, grand juries of this district have been selected from the entire district, and they have always performed their duties in making special investigations and in acting on bills of indictment. We are therefore of the opinion that the regular method of selection of the grand jury from the entire district is the proper method of selection. .

The petition alleges general violations of the federal laws, but does not set forth facts, or the possession of facts, sufficient to authorize this court to impanel a special grand jury to make a special investigation, which is an extraordinary procedure employed only in cases of urgent necessity. Case of Lloyd & Carpenter, 3 Clark (Pa.) 188. The Prohibition Administrator of this district is making systematic and extensive investigations and arrests of violators of the national prohibition laws in Luzerne county by trained and equipped federal officers of the department of justice, and the United States attorney of this district is preparing informations and indictments of these violators, and this court is trying and sentencing them, and .the premises in which violations occur are being padlocked.

If the petitioners have any facts not now in the possession of the United States attorney or the Prohibition Administrator, on which the general statements of the petition are based, and will present the same to the United States attorney of this district, and they are found sufficient on which to base an investigation by a grarid jury, the United States attorney will then use his office to co-operate with the petitioners to prepare the evidence for submission to a grand jury, and this court will direct a grand jury investigation of the violations. Any other procedure at the present time may seriously interfere with or hamper the orderly and efficient investigations and prosecutions by the federal Prohibition. Administrator.

The position taken by this court has been thoroughly discussed with the United States attorney, Andrew B. Dunsmore, and Prohibition Administrator John D. Pennington, who are in entire accord with it, and approve and recommend the plan and suggestions contained herein.


author: KNIGHT, District Judge.

text:
    SHATTUCK et al. v. PENNSYLVANIA R. CO.
    District Court, W. D. New York.
    May 14, 1931.
    See, also, (D. C.) 48 F.(2d) 346.
    Levi Ginsburg, of Elmira, N. Y., for plaintiffs.
    Diven & Diven, of Elmira, N. Y., for defendant.
   KNIGHT, District Judge.

The action is in negligence. Issue was joined on December 29, 1930. Thereafter, application was made by the defendant to take the testimony of Flank J. Spear at Tampa, Ela. Taking of such testimony was adjourned from time to time by consent of the parties until April 22, 1931. On April 20, 1931, -on application of the plaintiffs, an order was granted by this court returnable May 4, 1931, directing defendants to show cause why an order of discontinuance of the action should not be granted, and staying the proceedings to take the testimony of said Frank J. Spear until a reasonable time after the hearing and final determination of such motipn.

It is well settled by a long line of decisions in the federal courts and the courts of New York State that the right of a plaintiff to discontinue is not absolute. It may not be denied arbitrarily. The court may grant, the application upon reasonable terms. Vide: Winans v. Winans, 124 N. Y. 140, 26 N. E. 293; Matter of Waverly Waterworks Co., 85 N. Y. 478; Palmer v. Delaware, L. & W. R. R. Co. (D. C.) 222 F. 461.

The defendant does not oppose the granting of the order of dismissal, provided it is made upon the condition that the defendant be permitted to take and preserve the testimony of the said witness Spear. In view of the circumstances this seems to be a reasonable condition.

The affidavit of plaintiff Bertha M. Shat-tuck asserts that she is without means to pay the expenses of an attorney to represent her in the taking of the testimony of the witness Spear. The likelihood that another action may be brought, the apparent importance of the testimony of the witness Spear, and the possible difficulty in obtaining the testimony in ease another action is brought, afford a reasonable ground for granting the application to discontinue, on the conditions asked by the defendant. The granting of the order on these conditions necessarily will require appearance by the plaintiff Bertha M. Shat-tuek by an attorney for the taking of such testimony, and it likewise seems equitable that the defendant pay a reasonable sum in. aid of the employment of such an attorney for the said plaintiff.

An order may be entered granting the discontinuance of the action, on condition that within sixty days from the date of the entry of the order hereon the defendant take the testimony of the witness Spear; that this action shall be construed as continuing, pending the taking of such testimoiiy within the sixty days aforesaid, and provided, further, that the .defendant pay to the plaintiff the sum of not to exceed $50 in payment of expenses to be incurred by the plaintiff Bertha M. Shattuek for an attorney’s services in connection with the taking of the testimony aforesaid.

That the order aforesaid be settled at any time upon consent of the parties or on two •days’ notice by a judge of this court.


author: JOHNSON, District Judge.

text:
    In re LEPPE.
    No. 6824.
    District Court, M. D. Pennsylvania.
    June 12, 1931.
    Keith & Sheely, of Gettysburg, Pa., for trustee.
    Robert E. Wible and Eugene V. Bulleit, both of Gettysburg, Pa., for claimant.
   JOHNSON, District Judge.

On June 24, 1930, Bish Brothers filed their petition to reclaim from the trustee in bankruptcy seven acres of growing wheat which Clinton W. Leppe, more than four months prior to his bankruptcy, sold to Bish Brothers by a written agreement of sale for a valuable consideration. The referee in bankruptcy refused the petition, and this is a proceeding to review his order.

The question for decision is whether the sale of growing wheat for a valuable consideration, by a person who later becomes a • bankrupt, more than four months prior to the filing of the petition in bankruptcy, but without delivery or other notorious act of ownership, constitutes a valid sale against the trustee.

The referee granted a rule on the trustee to show cause why the growing grain should not be surrendered to the petitioners. On October 27, 1930, after hearing, the referee held that no open or notorious act was done by the petitioners to indicate ownership of the growing grain, although the transfer may have been binding between the parties, the attempted sale of the growing grain, without a delivery of possession, was fraudulent as to the creditors of the bankrupt, and the referee discharged the rule.

The petition in bankruptcy was not filed until June 18, 1930, more than four months after the date of the written agreement of sale which was, therefore, not fraudulent under section 67e of the Bankruptcy Act (11 USCA § 107(e).

The trustee in bankruptcy under section 17a (2) of the Bankruptcy Act (11 USCA § 75 (a) (2), is vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings on the property of the bankrupt, and also as to all property not in the Custody of the bankruptcy court shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied.

The specific question for decision, therefore, is whether the mere execution of the written agreement of sale constitutes such a constructive delivery of the possession of the growing grain as to pass the title to Bish Brothers against the creditors of the bankrupt. The referee relied upon the case of Welsh v. Bekey, 1 Pen. & W. 57. In that ease there was an attempt to mortgage one-half of forty-eight acres of wheat and rye in the ground, but there was not any open, notorious act done by the purchaser of the growing grain, and Chief Justice Gibson held that the sale of the growing grain was fraudulent as to the creditors.

The Pennsylvania decisions have established the rule that a transfer of possession in the sale of personal property, either actual or constructive, must take place so as to give notice to the public in order to transfer title to the purchaser as against innocent purchasers or creditors for value. Clow v. Woods, 5 Serg. & R. 275, 9 Am. Dec. 346; Welsh v. Bekey, 1 Pen. & W. 57; Shipler v. New Castle Paper Products Co., 293 Pa. 412, 143 A. 182.

In the present case, nothing was done to give notice of the transfer of the grain and, therefore, the transfer is void against the trustee who represents the creditors of the bankrupt. Some record or publication of the agreement of sale should have been made or act of possession taken, such as posting notice. The order of the referee must be sustained.

And now, June 12) 1931, the order of the referee sustaining the right of the trustee to the grain in question is sustained, and the petition for review of the .referee’s order is dismissed.


author: BLAND, Associate Judge.

text:
    VAN CAMP SEA FOOD CO., Inc., v. ALEXANDER B. STEWART ORGANIZATIONS.
    Patent Appeal No. 2708.
    Court of Customs and Patent Appeals.
    May 27, 1931.
    Albert J. Fihe, of Chicago, Ill., for appellant.
    James M. Naylor, of San Francisco, Cat (Charles E. Allen, of Washington, D. C., and Wm.S, Graham, of San Francisco, Cal., of counsel), for appellee.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   BLAND, Associate Judge.

This is an appeal from the decision of the Commissioner of Patents, affirming the action of the Examiner of Interferences, dismissing the opposition, and adjudging the applicant, appellee, entitled to the registration for which application had been made.

The applicant seeks to register the term “White Chicken,” used upon canned tuna.

The opposer sets up a prior use of the term “Chicken of the Sea,” as a trade-mark for tuna fish, and shows ownership of registration No. 97,192, granted May 19, 1914, for the mark. According to the reeord, the “Chicken of the Sea” trade-mark has been used by opposer and its predecessors since 1914, and opposer spends approximately $60,000 annually in advertising this brand' of tuna. Its sales, amounting to approximately five million cans annually, are made in all parts of the United States, and in Hawaii and Canada.

Appellee has used the term “White Chicken” on its goods since October 14, 1926. The Commissioner held that the goods of the two parties were identical, and that the only question involved for his decision was the question of confusion. He states:

“ ‘ In the ruling in the adjudicated case of Van Camp Sea Food Co., Inc. v. Westgate Sea Products Co., 28 F.(2d) 957 (C. C. A. 9th Cir.) it was finally determined that the notation ‘Breast o’ Chicken,’ was not confusingly similar to the opposeris mark ‘Chicken of the Sea.’ The court found that the word ‘chicken’ had been widely used in a descriptive sense in connection with various foods, including fish, and that the opposer was not entitled to claim exclusive rights to the use of this word alone. Since the mark of the applicant here .‘White Chicken,’ is obviously no more similar to the opposeris mark than is the mark of the defendant in the adjudicated case, the finding of the court in that case is regarded as determinative of the question of similarity of the’ marks involved in the instant proceeding.”

The reeord shows that the Van Camp Sea Food Company Ine., brought suit in the United States District Court for the Southern District of California against Westgate Sea Products Company for infringement of its mark “Chicken of the Sea,” and alleged that the defendant’s infringing mark was “Breast o’Chicken.” The District Court dismissed the bill without hearing evidence. Appeal was taken to the Circuit Court of Appeals, Ninth Circuit, which court held [Van Camp Sea Food Co., Inc., v. Westgate Sea Products Co., 28 F.(2d) 957, 958] that the trial judge had the right to dismiss the bill without taking evidence. The Circuit Court of Appeals stated, evidently inadvertently, that the West-gate Products Company caused its “Breast o’ Chicken” trade-mark to be registered. It is conceded that the term had not been registered. The court then held as follows:

“Were the word ‘chieken,’ common to the two trade-marks, a purely fanciful term, and made equally prominent in both, we might have a case of sufficient doubt to warrant a hearing of evidence. But, as registered, the two combinations are similar neither in appearance nor in sound, and if, as appellant contends, it be conceded that ‘chicken’ is the dominant word in its combination, it cannot be said to have such prominence in that of the defendant. Moreover, ‘chicken,’ as used by the plaintiff, is not a purely fanciful term, but is measurably descriptive. Truei in its primary or most popular meaning, it designates the young of the domestic hen, and less, commonly, the young of wild birds, but it is sometimes used to denote living things of the sea as well as of the land. Its application has been so extended apparently because in a figurative sense it has come to signify something young and tender.
“At page 336 of volume 2 of Murray’s New English Dictionary of the Philological Society it is stated that, since early in the 1700’s, ‘chicken’ has been so used as denoting a young and inexperienced person, and in Farmer and Henley’s Dictionary of Slang and Colloquial English it is said that ‘tender as chicken’ dates backs to the fourteenth century. In the Century Dictionary it is referred to as a name applied with qualifying adjectives to various fishes. In the same work chicken halibut is defined as ‘a halibut weighing from ten to twenty pounds.’ And in the edition published as early as 1889 chicken lobster is said to be ‘an undersized lobster,’ too small to be legally marketable under the laws of some states. It will thus be seen that the term is not only more or less' generally applied to sea life, but, when so used, it is understood to be descriptive of class or quality. We are not to be understood as necessarily holding that plaintiff’s trade-mark is invalid; the combination as a whole may have validity. But, in view of 'the considerations just suggested> appellant cannot, as in effect it seeks to do, abandon all but tbe word ‘chicken’ and claim that as its trade-mark. ‘Chicken,’ when applied to tuna, would, as when applied to halibut or lobster, denote young and tender meat, and hence would be descriptive of quality. That terms merely descriptive of quality cannot be appropriated as trademarks is too well settled to require citation of authorities. On the point that generally a registered trade-mark is to be considered as an entirety, see John Morrell & Co. v. Hauser Packing Co. (C. C. A.) 20 F.(2d) 713; Ostermoor & Co. v. Rose Spring & Mattress Co., 55 App. D. C. 307, 5 F.(2d) 268; Loughran v. Quaker City, etc. (C. C. A.) 296 F. 822; Beckwith v. Commissioner of Patents, 252 U. S. 538, 40 S. Ct. 414, 64 L. Ed. 705.”

The record shows that, after the decision by the Circuit Court of Appeals, supra, a suit by the Van Camp Sea Food Company was begun against the appellee herein in the United States District Court for the Southern District of California, Central Division, and that in September, 1930, that court held in substance, among other things, that there was not sufficient similarity between the alleged trade-marks to produce confusion, and that the mark “White Chicken” did not infringe “Chicken of the Sea,” and that the defendant had not committed acts of unfair competition against the plaintiff. It also held that the term “of the Sea,” when used on a fish product, designated the place from which the product came, and added nothing to the descriptive word “chicken,” and that the legend “Chicken of the Sea” was therefore invalid when used as a trade-mark for tuna.

Under the statute, our duties in reviewing decisions of the Commissioner of Patents in trade-mark cases are quite different from those of a District or Circuit Court of Appeals in actions such as have been hereinbefore referred to. We determine the correctness of the Commissioner’s ruling on the registrability of the trade-mark. The District and Circuit Courts of Appeals, in the above cases, were not concerned with this question. Our jurisdiction involves the question of the right to register, while the jurisdiction in the eases above referred to involves the right to use. California Packing Corp. v. Tillman & Bendel, 40 F.(2d) 108, 17 C. C. P. A. 1048; B. F. Goodrich Co. v. Hockmeyer, 40 F.(2d) 99, 17 C. C. P. A. 1068.

Section 5 of the .Trade-Mark Act of February 20, 1905 (15 USCÁ § 85) provides definitely that a trade-mark shall not be registered if such mark is so similar to a mark owned and used by another, when used upon goods of the same descriptive properties, as to be likely to cause confusion. It also provides definitely that the mark shall not be registered if it consists merely in words which are descriptive of the goods with which it is used or of the character or quality of such goods.

While the decisions of the District Court and the Circuit Court of Appeals, supra, involved issues which differ from those at bar, it is true that in their decisions they made certain findings with which we are concerned. We do not understand that their decisions on the subject of the descriptive quality of the term “Chicken of the Sea” or their findings on the question of similarity between “Chicken of the Sea” and “Breast o’Chieken” in an infringement action are to be considered by us as res adjudieata or controlling of the issue of the registrability of the term “White Chicken.” Decisions of this character, when applicable, ought to be and are entitled to great respect here and by the Patent Office tribunals. They are, however, to be regarded as persuasive but not conclusive.

If “Chicken of the Sea” is descriptive of the goods, it is, of course, an invalid trademark, and should not have been registered, and, under the authority of the Trade-Mark Act, it could be cancelled upon, proper petition. If “Chicken of the Sea” is descriptive, certainly “White Chicken” is more so. But, in view of our conclusion reached herein, it will not be necessary for us to determine whether or not “White Chicken” is either descriptive or misdeseriptive.

The Commissioner of Patents should have refused registration of the term “White Chicken” for the reason, if for no other, that it was confusingly similar to “Chicken of the Sea,” both marks being applied to goods of the same descriptive properties, and the word “Chicken” being the predominant word of the terms in sound, appearance, and significance. The Commissioner of Patents in his decision, in determining the question of confusion, was, evidently, erroneously influenced by the same consideration that seemed to influence the decisions in the District Court and Circuit Court of Appeals above referred to, that is to say, that the word “Chicken” is descriptive, and, when the same is eliminated, there was no confusion between the word “White” and the words “of the Sea,” and that “Chieken,” being descriptive, should not be taken into consideration in determining the question of confusion. In this view of the case, it is regarded as proper for us to consider, somewhat in detail, the characteristics of the mark “Chieken of the Sea” with respect to whether it is descriptive or suggestive, not with a view, however, of passing judgment upon the validity of appellant’s mark.

While “Chicken of the Sea” is somewhat suggestive, we cannot conclude that it is descriptive. We think it is an arbitrary and fanciful mark. Furthermore, the word “Chicken,” when used in connection with the words “of the Sea,” is, in our opinion, not descriptive. If used alone on tuna, it is urged that it might be descriptive or misdescriptive. It is not used alone in appellant’s mark, and should not be eliminated from consideration in the determination of the question of confusion. There is not one syllable of proof or one word of printed authority pointed out which supports a conclusion that there is such a thing as a chieken tuna. True enough, as has been suggested in the quoted portion of the opinion of the Circuit Court of Appeals, in some instances the word “Chieken” connotes immaturity. This is no doubt true when the word is applied to halibut, turtles, lobsters, and to female members of the human family, but, unless it is descriptive of tuna, it does not fall within the prohibition of the statute. The only testimony in the ease on this question is by a witness, connected with the appellant fish canning firm, who is familiar with the mark, and is to the effect that the word suggests white-meated tuna which is in layers like pressed chieken, and that some people think that the flavor of a certain kind of tuna resembles the flavor of the white meat of chieken. “Chicken of the Sea” is surely not even suggestive of a fowl. It is well settled in adjudicated eases that a valid trademark may be highly suggestive (in our opinion cftimes the best ones are), without being offensively descriptive.

In Le Blume Import Co. v. Coty (C. C. A.) 293 F. 344, 351, the court said:

“The Trade-Mark Act of February 20, 1905 (section 5 [15 USCA § 85]), denies registration to a mark which consists merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods. It was claimed at the argument that Coty’s trade-mark is descriptive, within the meaning of section 5, and so was incapable of registration. The general rule is unquestionable that a word which is descriptive of the article upon which it is used, of its ingredients, quantities, or characteristics, cannot be a valid trade-mark. Standard Paint Co. v. Trinidad Asphalt Manufacturing Co., 220 U. S. 446, 31 S. Ct. 456, 55 L. Ed. 536. The rule, however, is not without qualification. The cases show that the courts under certain circumstances protect the use of words as trade-marks, even though they suggest the ingredients, qualities, or characteristics of the goods. The distinction is between words which are ‘descriptive’ and those which are merely ‘suggestive.’ Neither is it necessary that words to be available as trade-marks should cany no suggestion of any meaning. The line of demarcation may not be easy to draw but it exists. See Nims on Unfair Competition and Trade-Marks (2d Ed.) §§ 200-202.”

In Orange Crush Co. v. California Crushed Fruit Co., 54 App. D. C. 313, 297 F. 892, 893, the court said:

“The Trade-Mark Act * * * prohibits the registration of a mark which consists ‘merely in words or devices which are descriptive of the goods with which they are used, or of the character or quality of such goods.’ In this provision Congress evidently intended to draw a distinction between descriptive and merely suggestive marks. Marks of the former character, as we many times have declared, are not suspeetible of exclusive appropriation, while those of the latter class may be. The difficulty is not so much in the statement of the rule as in its application to the facts of a particular case.” '

In United Lace & Braid Mfg. Co. v. Barthels Mfg. Co. (D. C.) 221 F. 456, 461, we think the correct rule of distinction between trade-marks that are merely descriptive and those that are suggestive is stated in the following language:

“The utmost that can be said is that the term ‘beaded,’ as applied to these tips, is somewhat suggestive of their appearance. In other words, it is used figuratively. This, however, is not enough to take it out of the range of lawful appropriation as a trademark. Every good trade-mark is suggestive; once seen or heard, its association with the product is readily fixed in the mind. If there were no association of ideas between the two, it would require an independent effort of memory to recall the connection. It is not necessary to the validity of a trade-name that it should be utterly devoid of aptitude. It is enough that it leaves open to every one all words that are really descriptive.”

While appellee here concedes that both trade-marks at bar are not descriptive, it certainly produces an anomalous situation for appellee to contend in an infringement suit that it has the right to use the term because it is descriptive and to contend in the Patent Office that it is not descriptive and is registrable. It is obvious that appellee seeks to reap where it has not sown. Doubts are resolved against the newcomer in trade-mark registration proceedings. Appellee is the newcomer, and in selecting its mark it should select one, not with a view of profiting by the confusion that would result, but with the purpose of avoiding confusion. There is no such poverty of words in the language of commercial men as to require the selection of a term as a trade-mark which confuses the public and invades property rights. California Packing Corp. v. Tillman & Bendel, supra; B. F. Goodrich Co. v. Hockmeyer, supra; Rotex Surgical Appliance Co. v. Ko-tex Co., 44 F.(2d) 879, 18 C. C. P. A.-; Lever Bros. Co. v. Riodela Chemical Co., 41 F.(2d) 408, 17 C. C. P. A. 1272.

The decision of the Commissioner of Patents is reversed.

Reversed.

       Statements above are derived from the conclusions of law filed with the findings of fact. No opinion was written in this case. ■


author: PER CURIAM.

text:
    In re ACQUISITION OF ORIGINAL LOT 14, and ASSESSMENT AND TAXATION LOT 800, in SQUARE 128, WASHINGTON, D. C.
    No. 1784.
    Court of Appeals of District of Columbia.
    Argued May 12, 1931.
    Decided May 13, 1931.
    Joseph I. Miller, George W. Offutt, and Roger J. Whiteford, all of Washington, D. C., for petitioner.
    Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
   PER CURIAM.

This case relates to a proceeding brought 'by the United States in the Supreme Court ■of the District of Columbia seeking the condemnation of original lot 14, and assessment and taxation lot 800, in square 128, in the city of Washington, District of Columbia, for the use of the United States in accordance with Acts of Congress, respectively approved ■on May 25, 1926, 44 Stat. 630 (40 USCA §§ 341-347); January 13, 1928, 45 Stat. 51 (40 USCA §§ 341 note, 348); March 1, 1929 (45 Stat. 1437); and March 31, 1930 (Pub. No. 85, 71st Cong.); which condemnation ■proceeding is now upon hearing in that court.

The present petition is filed in this court by parties owning the property in question •or interests therein, and praying that a writ ■of prohibition be issued herein prohibiting the United States, together with the lower ■court, from proceeding with the condemnation cause, or exercising any jurisdiction therein, and that a writ of supersedeas be issued by this court staying all further proceedings in said cause until this court may hear and decide petitioners’ appeal taken from the proceedings in that cause.

Upon a hearing duly had upon the petition, this court denies the prayer of the petitioners for a writ of prohibition or super-sedeas herein. It is noted, however, that counsel for the United States in open court announce that the improvements now upon the -described premises shall not be removed or disturbed until after a view thereof may be had by the jury impaneled or to be impaneled in the condemnation ease, and this court approves of such action thus assured, it being within the authority of the lower court to grant an application for such purpose if presented by any party possessing an interest in the property.


author: MARTIN, Chief Justice.

text:
    CATALOG ASS’N v. A. EBERLY’S SONS, Inc.
    No. 5130.
    Court of Appeals of District of Columbia.
    Argued May 6, 1931.
    Decided June 1, 1931.
    William J. Hogan, Jr., and Wilfred Hearn, both of Washington, D. C., for plaintiff in error.
    Nathan Levin, H. Winship Wheatley, and H. Winship Wheatley, Jr., all of Washington, D. C., for defendant in error.

      Before MARTIN, Chief Justice, and ROBB, HITZ, and G-RONER, Associate Justices.
   MARTIN, Chief Justice.

The Catalog Association, as plaintiff, filed a declaration in the municipal court against A. Eberly’s Sons, Inc., as defendant, claiming judgment against the defendant in the sum of $755 upon allegations, in substance^ as follows: That in November, 1926, the A. Eberly’s Sons, Inc., instituted an action at law against the Catalog Association in the municipal court of the city of Chicago, a court of record, that the Catalog Association filed a set-off in the case, and recovered a judgment thereon in the sum of $755, that the same is a valid and outstanding judgment against defendant, and is wholly unpaid; that in the Chicago action the name of' A. Eberly & Sons Co., Inc., was used as defendant’s title instead of the correct name of A. Eberly’s Sons, Inc. An attested copy of the judgment and parts of the record of the Chicago ease is annexed to the declaration, showing, among other things, that the plaintiff in that case was represented by Harris, Reinhardt & Russell, as attomeys.-

In answer to the declaration, the defendant below filed a plea wherein it denied that it ever instituted any action against plaintiff in the municipal court of Chicago, or sued plaintiff dr prosecuted the alleged cause of action under the name of A. Eberly & Sons Co., Inc., or that a set-off was filed and judgment thereon recovered against it in the sum of $755, or any other sum; and defendant denied that it was the plaintiff in the Chicago ease, and denied that any one had authority to file such a suit on its behalf.

At the trial of this issue in the municipal court, the plaintiff offered in evidence the.deposition of J._ J. Russell, who. testified that he was an attorney at law practicing in the city of Chicago, associated with the firm of Harris, Reinhardt & Russell, attorneys of -that city, and that his firm had filed various papers in the municipal court of Chicago in the case entitled A. Eberly & Sons Co., Inc., v. The Catalog Association, including a praecipe, statement of claim, affidavit of claim, and also an affidavit of merits to the set-off filed by the Catalog Association. The witness further testified that the suit was brought in the name of A. Eberly &-Sons Co., Inc., instead of A. Eberly’s Sons, Inc., through “inadvertence on the part of the stenographer.”

Thereupon various questions were propounded to the witness calling for answers tending to prove that the Chicago firm of lawyers had been employed and authorized by A. Eberly’s Sons, Inc., to institute and conduct the action in question in the Chicago court. The questions were objected to, and the court sustained the objection upon the ground of “privileged communications due to relationship of lawyer and client.” Answers tending to prove the alleged employment were duly tendered and refused, and exceptions were noted to the rulings. Thereupon, letters written by A. Eberly’s Sons, Inc., received by the Chicago lawyers, tending to prove their employment as attorneys in the case were tendered in evidence, but were ruled out by the court as privileged communications.

The record discloses that the rejected testimony did not include any “communications,” except- such as tended to prove the employment of the Chicago lawyers as. attorneys for the defendant below.

The contention of the defendant was somewhat anomalous, inasmuch as it denied that' the relation of client and attorney existed between itself and the Chicago lawyers, and at the same time claimed that the communications passing between them were privileged as confidential communications between client and' attorney. We think the -lower court erred in sustaining this claim. ■

“The rule making communications between attorney and client privileged from disclosure does not ■ ordinarily apply where the inquiry is confined to the fact of the at•tomey’s employment and the name of the . person employing him. The privilege presupposes the relationship of client and attorney and therefore does not attach to its creation.” 28 R. C. L. p. 563. “A counsel or attorney is not a competent witness, to testify as to facts communicated to him hy his client, in the course of the relation subsisting between them, but may be examined as to the mere fact of the existence, of that relation.” Chirac v. Reinicker, 11 Wheat. 280, 6 L. Ed. 474. “An attorney may be required to testify who his client was, in a certain suit; and letters written to the attorney are.competent evidence against their author to show that he was the client for whom the attorney brought and conducted the suit.” Harriman v. Jones, 58 N. H. 328. “The law .very properly protects certain professional communications between attorney and client as confidential, on grounds of public policy. This does not apply to matters openly com-munieated or disclosed in the presence of third parties, and it has often been decided that an attorney may be required to disclose by whom he is employed in a judicial proceeding.” Mobile & M. Railway Co. v. Yeates, 67 Ala. 164, 167.

The record presents a second question which should be noticed. At the trial in the municipal court the plaintiff tendered in evidence an authenticated copy of the judgment rendered by the Chicago court. The copy, however, while including the judgment did not include all the other papers or proceedings in the ease. This tender was rejected upon the ground that the record was incomplete, and it was not admitted in evidence. In our opinion, this was error. The sole actual dispute in this case is whether the Chir cago lawsuit was brought on behalf of A. Eberly’s Sons, Inc., by attorneys thereunto duly authorized. If so the defendant cannot dispute the jurisdiction of the Chicago court which it had invoked, and, therefore, there would be little necessity for proof of more than the judgment entered upon the set-off. The tendered record was sufficient for this purpose. 34 C. J., “Judgments,” p. 1121.

The decision of the municipal court is reversed, with costs, and the cause is remanded for further proceedings not inconsistent herewith.


author: GRONER, Associate Justice.

text:
    HOAGE, Deputy Com’r, United States Employees’ Compensation Commission, et al. v. MURCH BROS. CONST. CO. et al.
    No. 5010.
    Court of Appeals of District of Columbia.
    Argued May 5, 1931.
    Decided June 1, 1931.
    W. B. Wright and Leo A. Rover, both of Washington, D. C., for appellants.
    Edwin A. Swingle and Ernest A. Swin-gle, both of Washington, D. C., for appel-lees.
    Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
   GRONER, Associate Justice.

On December 3, 1928, Turner Sutton, a resident of the District of Columbia, while employed as a laborer by Mureh Bros. Construction Company, one of appellees, received injuries from which he died. Thereafter a claim for compensation under the District of Columbia Workmen’s Compensation Act was filed with the Compensation Commission by Sadie Turner Sutton, as his surviving common-law wife. A hearing was had; the injury, death, and notice were admitted, as well as the relationship of employer and employee and that the services then being performed by deceased were incidental to his employment. At the conclusion, the commissioner found as a fact “that Sadie Turner Sutton and deceased had lived together in good faith for a period of about three years as husband and wife, and had held themselves out to the public as husband and wife, and were generally known as such, and that at the time of deceased’s death, she was his surviving wife living with him and dependent upon him for her support.” The award is contested by the employer and the insurance carrier on the ground, first, that the evidence did not sustain the commissioner’s findings; and, secondly, that, if it did, the relationship of common-law marriage does not exist in the District of Columbia. The lower court allowed a permanent injunction on the ground that the finding that appellant had entered into a common-law marriage in the District of Columbia did not entitle her to compensation because no such marriage is legal under the laws of the District.

We think that the findings of fact of the deputy commissioner were supported by substantial evidence, and that, in such circumstances, such findings cannot be disturbed by this court. Wheeling Corrugating Co. v. McManigal (C. C. A.) 41 F.(2d) 593.

We come, therefore, to consider whether or not a common-law marriage is valid in the District of Columbia. At' common law, no formal ceremony was essential to a valid marriage. Chancellor Kent states the doctrine thus: “No peculiar ceremonies are requisite by the common law to the valid celebration of the marriage. The consent of the parties is all that is required; and as marriage is said to be a contract jure gentium, that consent is all that is required by natural or public law. The Roman lawyers strongly inculcated the doctrine, that the very foundation and essence of the contract consisted in consent freely given, by parties competent to contract. Nihil proderit signasse tabulas, si mentem matrimonii non fuisse eonstabit. Nuptias non concubitus, sed consensus facit. This is the language equally of the common and canon law, and of common reason. If the contract be made per verba de praesenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage in the absence of all civil regulations to the contrary, and which the parties (being competent as to age and consent) cannot dissolve, and it is equally binding as if made in facie ecelesise.”

In England so-called common-law marriages were forbidden after 1753, and, by act of Parliament, it was provided that all subsequent marriages not celebrated according to the formalities therein prescribed should be invalid. Act 26 George II, c. 33. But, so far as we can determine, this act was never adopted in any of the states of the United States. However, in the case of Reg. v. Millis, 10 Cl. & Fin., 534, it was declared that by the law of England, as it existed at the time of the passage of the Marriage Act (Act 26 George II), a contract of marriage per verba de praesenti was a contract indissoluble between the parties themselves, affording to either of the contracting parties, by application to the spiritual court, the power of compelling the solemnization of an actual marriage, but neither in the American colonies nor in the states of the United States has there ever been any ecclesiastical tribunal with power to enforce the solemnization of marriages between parties contracting per verba de prassenti, and so in this country it has been generally held that a marriage according to the common law is valid and binding, in the absence of a statute prohibiting or declaring void a marriage not solemnized in accordance with its provisions, and also it has been held, by the greater weight of authority, that statutory provisions as to solemnizing marriages, not .containing words of nullity, are directory merely, and do not affect ihe validity of common-law marriages. Meister v. Moore, 96 U. S. 76, 78, 24 L. Ed. 826. But in the state of Maryland it was decided otherwise in Denison v. Denison, 35 Md. 361, and it is quite true we held in DeForest v. U. S., 11 App. D. C. 458, that, by the Act of February 27, 1801 (2 Stat. 103), the laws of the state of Maryland as of that date were continued in force in the District of Columbia, and we need not stop to inquire whether, by the change in chapter 3, .tit. 1, of the Code of 1929, in which all reference to the laws of Maryland is omitted, this is no longer true. The fact remains that Congress has enacted a complete set of divorce and marriage laws for the District of Columbia, and it is to these laws, rather than to those preserved out of the past relationship with the state of Maryland, that we must look for guidance and control in the determination of the question now before us, and hence we do not think we can safely follow the decision of the Court of Appeals of Maryland in Denison v. Denison, supra, in which it was held that under the Maryland Marriage Act of 1777, to constitute a lawful marriage, “there must be superadded to the civil contract, some religious ceremony,” for this is not true under the marriage laws of the District.

In Meister v. Moore, supra, in which the validity of common-law marriages in Michigan was involved, the Supreme Court, in passing upon an instruction of the lower court to the effect that a marriage was invalid if neither a minister nor a magistrate was present, said: “It certainly withdrew from the consideration of the jury all evidence, if any there was, of informal marriage by contract per verba de prsesenti. That such a contract constitutes a marriage at common law there can be no doubt, in view of the adjudications made in this country, from its earliest settlement to the present day. Marriage is everywhere regarded as a civil contract. Statutes in many of the States, it is true, regulate the mode of entering into the contract, but they -do not confer the right. Hence they are not within the principle, that, where a statute creates a right and provides a remedy for its enforcement, the remedy is exclusive. No doubt, a statute may take away a common-law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed. A statute may declare that no marriages shall he valid unless they are solemnized in a prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license, or publication of banns, or be attested by witnesses. Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present assent. And such, we think, has been the rule generally adopted in construing statutes regulating marriage. Whatever directions they may give respecting its formation or solemnization, courts have usually held a marriage good at common law to be good notwithstanding the statutes, unless they contain express words of nullity.”

And in the more reeent ease of Travers v. Reinhardt, 205 U. S. 423, 440, 27 S. Ct. 563, 51 L. Ed. 865, the doctrine announced in Meister v. Moore, was reaffirmed and approved.

We think, therefore, that it cannot ■ now be controverted that an agreement between a man and woman per verba de prffisenti to be husband and wife, consummated by cohabitation as husband and wife, constitutes a valid marriage, unless there he in existence in the state in which the agreement .is made a statute declaring the marriage to be invalid unless solemnized in a prescribed manner, and we think it equally true that the rule now generally recognized is that statutes requiring a marriage to he preceded by a license, or to be solemnized by a religious ceremony, without express words of nullity as to marriages contracted otherwise, are directory merely, and failure to procure the license or -to go through a religious ceremony does not invalidate the marriage. See 79 Am. St. Rep. 362; Ann. Cas. 1912D, 598; 7 Ann. Cas. 784; 124 Am. St. Rep. 122— where the cases on the subject are fully collected. In this view, we must have recourse to the provisions of the marriage laws in the District of Columbia in order to answer the question upon which the decision turns.

Title 14, page 139, Code D. C. 1929, section 1 of chapter 1, under the title “Marriage,” makes void ab initio marriages contracted between persons of certain degrees of relationship, and persons who have been previously married and not divorced, or the marriage state otherwise terminated. It likewise avoids marriages between idiots, parties below the age of consent, or parties' incapable from physical causes. Section 6 provides: “For the purpose of preserving the evidence of marriages in the District, every minister of the gospel appointed or ordained according to the rites and ceremonies of his church * * * may be authorized by any justice of the supreme court of the District of Columbia to celebrate marriages in the District. And marriages may he celebrated in the District by any judge or justice of any court of record”; and provides further that marriages of the members of any church or religious society which does not by its custom require the intervention of a minister for the celebration of marriages may be solemnized in any manner prescribed by such society. Section 7 prescribes a penalty for the performance of a marriage by an unauthorized person, and section 8 prohibits any person celebrating the rites of marriage without having had first delivered to him a license issued therefor. There is nothing in the statute which declares that a marriage shall not be valid unless solemnized in the prescribed manner, nor does it declare any particular thing requisite to the validity of the marriage. The act confines itself wholly with providing the mode of solemnizing the marriage and to the persons authorized to perform the ceremony. Indeed, the statute itself declares the purpose underlying the requirements to be to secure registration and evidences of the marriage rather than to deny validity to marriages not .performed according to its terms, and, since the legislative intent to abrogate the eornmon-law right may not be presumed, unless clearly expressed (Meister v. Moore, supra), we are necessarily brought to conclude that the decision of the lower court that common-law marriages in the District are invalid is not supported by law, and is wrong. The ease of Meister v. Moore was decided in 1877, and Travers v. Reinhardt in. 1907, and we must assume that Congress, knew of these cases. Much water has since passed over the dam, and the statutes on the subject in the District have remained unchanged, and if, as was said by the Court of Appeals of Virginia in Offield v. Davis, 100 Va. 250, 40 S. E. 910, the doctrine of common-law marriage is contrary to public policy and public morals, it is for Congress and not the courts to do what is needful by appropriate legislation to declare such unions null and void.

The decree of the lower court is therefore reversed, with costs, and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: VAN ORSDEL, Associate Justice. ROBB, Associate Justice

text:
    TUROFF v. BURCH.
    No. 5019.
    Court of Appeals of District of Columbia.
    Argued Feb. 9, 1931.
    Decided June 1, 1931.
    ROBB, Associate Justice, dissenting.
    Alfred M. Schwartz, of Washington, D. C., for appellant.
    Charles W. Darr and H. Clay Espey, both of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
   VAN ORSDEL, Associate Justice.

Appellee, Agnes Burch, defendant below, was sued by the plaintiff for personal injuries sustained through the alleged negligent operation of her automobile. She owned the automobile in question, which she provided for the use and pleasure of the members of her family. On this occasion, Kenneth Burch, her son, who was in the habit of using the automobile, was not operating it at the time the accident occurred. It is alleged, in substance, that on September 25, 1926, while the automobile was being operated for the pleasure and use of the son by his friend LeRoy Stewart, Burch being seated in the automobile with him, plaintiff was struck while crossing New Hampshire avenue and seriously injured by the alleged negligent operation of the automobile.

Defendant, the owner of the automobile, testified that she had no knowledge that Stewart had ever driven the ear, or that he was to accompany her son or drive the ear on the present occasion. It appears that the son, on this occasion, took the ear and called for Stewart, and then drove to the home of a lady friend. When he came out to the car with the lady, Stewart was sitting at the wheel, and said: “I will drive.” Burch and the lady got in the front seat and they proceeded, Stewart driving, to the point where the accident occurred.

The trial justice in his charge to the jury properly eliminated all question of the direct liability of the owner for operating.the. car, and her liability for the operating of the car by a member of her family, since it was conceded that neither of these conditions obtained in the case.

On the question of liability for the operation of the ear by Stewart, the court charged the jury: “The question then arises, was Stewart operating it with her authority? You have all the circumstances in evidence before you; you have the history of the use of the car by her son; you have the history of the relationship between her son and Stewart, and the history of the use of the car by her son when Stewart was with him, and you have the evidence with regard to how far she knew about that matter and about using the car together. She says that she did not know that Stewart had ever driven the car. It' is a question of fact then for you, considering the ease, of the previous use of the car, and what knowledge the defendant had of it, whether, when Stewart was driving the car, he was doing it with her implied permission. There is no evidence that she had expressly permitted him but it is a fair question of fact upon which all the circumstances of the case. ' — whether she had or had not given him the implied permission to drive it. Did she understand, or ought she to have understood from the circumstances which have been detailed to you in evidence, that if it was more convenient for Stewart to drive the ear at a given time than for her son to do it, her son would allow him to do it, and was she willing that that should occur? If you find so, by a fair preponderance of the evidence, then Stewart, in driving the car, simply took the place of her son in driving the car and she would be liable as much as if her son would have been driving.”

In other words, the case was submitted on the question of whether or not Stewart was the agent of the owner in the operation of the car at the time the accident occurred. It becomes unnecessary for us to inquire as to the liability of the owner of a car kept for the use and pleasure of the members of his family, since the ear was not being operated by a member of the family on this occasion. Neither is it necessary for us to inquire as to the liability of an owner of a car who allows the car to be used by a third person with the owner’s permission, since the jury found from the evidence in this case that Stewart was not operating the car by the permission or direction of the owner.

The sole and only question left for our consideration is whether or .not the owner, in permitting her son to use the ear, was liable for the accident occasioned while the ear was being operated by Stewart, by permission of the son without her knowledge or consent.

A few cases have come.to our attention where the courts go to the extent of holding that, where a car is kept by the owner for the use and pleasure of his family, the owner is responsible for damages incurred through the negligence of a member of the family, whether the car is being driven by the member of the family or by a third party, with his permission, even though such 'third party is driving without the knowledge, consent, or direction, of the owner. Watts v. Lefler, 190 N. C. 722, 130 S. E. 630; Ulman v. Lindeman, 44 N. D. 36, 176 N. W. 25, 10 A. L. R. 1440; Kayser v. Van Nest, 125 Minn. 277, 146 N. W. 1091, 51 L. R. A. (N. S.) 970; Thixton v. Palmer, 210 Ky. 838, 276 S. W. 971, 44 A. L. R. 1379.

The rule upon which this extreme doctrine is based is illustrated by the facts set out in the Minnesota ease, as follows: “Defendant contends that, even if he is responsible for the acts of his daughter, he is not responsible for the acts of the third party who was operating the ear at the time of the accident. The daughter remained in the ear, and, although not personally operating it, had not relinquished control over it, nor turned it over to another to use for his own purposes. It was still being used in furtherance of the purpose for which she had taken it out. That the mere fact that the person authorized to operate the car permits another to operate it temporarily does not absolve the owner from responsibility,- under such circumstances, has already been determined in Geiss v. Twin City Taxicab Co., 120 Minn. 368, 139 N. W. 611, 45 L. R. A. (N. S.) 382.”

The “family purpose” doctrine which holds the owner of a ear, who gives it over to the use of his family and permits it to be operated by the members thereof, liable for injuries inflicted while being operated by a member of the family, is a departure from the doctrine of master and servant, and is based on the theory that an automobile is a dangerous instrumentality; and the rule by which it is attempted in a few states to extend this liability to accidents occurring through the agency of a third party, operating the car with the permission of a member of the family, without the authority, direction, or knowledge, of the owner, has not received the indorsement of many of the courts. Indeed, the more recent tendency of the courts seems to be against the so-called “family purpose” doctrine, as indicated in a very recent Illinois ease, Arkin v. Page, 287 Ill. 420, 123 N. E. 30, 5 A. L. R. 216, and in Van Blaricom v. Dodgson, 220 N. Y. 111, 115 N. E. 443, L. R. A. 1917F, 363.

Of course, these cases distinguish clearly a case where the member of a family is driving the father’s car on an errand or in the transaction of business for the father. Under those circumstances, the owner of the ear is liable on ordinary principles of agency, but these questions are not in this ease, and they are only cited as leading up to the extreme doctrine upheld in the Minnesota case, and which it is urged should be applied in the present ease. The cases seem to be uniform in holding that the owner of a ear is not liable for accidents occurring while the ear is in possession of a “gratuitous bailee,” provided the person to whom the car is loaned is a competent, qualified driver. 68 A. L. R. 1013; Babbitt on Motor Vehicles (3d Ed.) 1201.

We think that the extension of the “family purpose” doctrine of liability for the negligence of third persons, who have been placed in the operation of the ear by the member of the family using it, and without the knowledge, permission, or direction of the owner, is not warranted by the great weight of authority. Indeed, many of the leading states refuse to adopt the “family purpose” doctrine as contrary to the common-law rule of agency, unless the member of the family operating the car is engaged in the performance of a duty for the owner.

To extend the “family purpose”, rule to third persons, who are not operating the ear under the immediate direction of the owner, and in the performance of his work, merely upon the theory that an automobile is a dangerous instrumentality, is to establish a rule of liability unwarranted by modem conditions. The operation and use of automobiles has become so thoroughly established in vehicular traffic and use as to forbid the application of extraordinary rules of liability merely from the fact that if recklessly used it may become a dangerous instrumentality. It has become almost the exclusive vehicle in use, both for business and pleasure, and we think there is no occasion for such a wide departure from the established rules of liability of the principal for the acts of his agent, or of the master for the acts of his servant, as is contended for in this ease.

In other words, there is no reason for extending the liability beyond the well-established rule that where a servant or chauffeur is charged with the operation of the owner’s car in conducting and carrying out the owner’s orders, and permits a third person to temporarily operate the car, and injury is inflicted through negligent operation, the owner is held liable. This rule rests upon the well-established principle of negligence by an agent or servant in the discharge of the principal or master’s duty. This was the distinction underlying the decision in the much quoted English ease of Booth v. Mister, 7 Sergeant & Pettitt 66, 32 English Common Law Reports, 439. While some courts have confused the opinion of Lord Abinger in the English case with the “family purpose” doctrine, there is, in fact, no analogy whatever.

In the present ease, as stated in the charge of the trial court, the whole ease turns upon whether or not Stewart, while operating the car, was the agent or servant of the owner, and that depended not upon any principle involved in the “family purpose” doctrine, but on well-established principles of agency; and, unless it be shown either that Stewart was operating the car under the direction of the owner, or that the son, when he permitted Stewart to operate the ear, was engaged in the owner’s business, there could be no liability under any rule of agency. This issue the jury resolved in favor of the defendant.

The judgment is affirmed, with costs.

ROBB, Associate Justice

(dissenting).

Published statements of insurance companies disclose that in this country during the past year more than 32,000 persons were killed, and several hundred thousand injured by automobiles. In Schweinhaut v. Flaherty, 60 App. D. C. 151, 49 F.(2d) 533, 535, decided April 6, 1931, Mr. Justice Groner, speaking for the court, observed “that conditions in this respect are growing worse rather than better.” In District of Columbia v. Colts, 282 U. S. 63, 51 S. Ct. 52, 53, 75 L. Ed. 177, decided November 24, 1930, the Supreme Court declared that an automobile is, “potentially, a dangerous instrumentality.” In the hands of a careless or inexperienced person, an automobile is nothing short of a public menace. Public policy, therefore, demands that owners of automobiles be held to strict accountability for any negligence resulting in injury to others.

When a parent supplies an automobile for the use of members of his family, he is liable to third persons for injuries sustained through the negligent driving of one of such members. This liability is based upon the doctrine of agency; not upon family relationship. In such circumstances the automobile is being used for the purpose for which it was kept and, hence, in the parent’s business, the driver acting in furtherance of the parent’s purpose. King v. Smythe, 140 Tenn. 217, 204 S. W. 296, L. R. A. 1918F, 293; Schwartz v. Johnson, 152 Tenn. 586, 280 S. W. 32, 47 A. L. R. 323 (1926); Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59 ; Allison v. Bartelt, 121 Wash. 418, 209 P. 863 (1922); Denison v. McNorton (C. C. A.) 228 F. 401; Boyd v. Close, 82 Colo. 150, 257 P. 1079 (1927); Stickney v. Epstein, 100 Conn. 170, 123 A. 1 (1923); Chouinard v. Wooldridge, 102 Conn. 66, 127 A. 908 (1925); Griffin v. Russell, 144 Ga. 275, 87 S. E. 10, L. R. A. 1916F, 216, Ann. Cas. 1917D, 994; Landry v. Oversen, 187 Iowa, 284, 174 N. W. 255; Fullerton v. U. S. Casualty Co., 184 Iowa, 219, 167 N. W. 700, 6 A. L. R. 367; Graham v. Page, 300 Ill. 40, 132 N. E. 817; Gates v. Mader, 316 Ill. 313, 147 N. E. 241; Stowe v. Morris, 147 Ky. 386, 144 S. W. 52, 39 L. R. A. (N. S.) 224; Thixton v. Palmer, 210 Ky. 838, 276 S. W. 971, 44 A. L. R. 1379; Richardson v. Weiss, 152 Minn. 391, 188 N. W. 1008 (1922); Linch v. Dobson, 108 Neb. 632, 188 N. W. 227 (1922); Boes v. Howell, 24 N. M. 142, 173 P. 966, L. R. A. 1918F, 288; Watts v. Lefler, 190 N. C. 722, 130 S. E. 630 (1925); Foster v. Farra, 117 Or. 286, 243 P. 778 (1926); Mooney v. Gilreath, 124 S. C. 1, 117 S. E. 186 (1923); Way v. Guest (Tex. Civ. App. 1925) 272 S. W. 217; Cole v. Wright (Tex. Civ. App. 1929) 18 S.W.(2d) 242; Ambrose v. Young, 100 W. Va. 452, 130 S. E. 810 (1926).

In Kayser v. Yan Nest, 125 Minn. 277, 146 N. W. 1091, 51 L. R. A. (N. S.) 970, a father kept an automobile for the use of his family. A daughter, nineteen years of age, usually operated it. On the occasion of the accident, she permitted a cousin to operate the ear, she being present. The court said: “The daughter remained in the car, and, although not personally operating it, had not relinquished control over it, nor turned it over to another to use for his own purposes. It was still being used in furtherance of the purpose for which she had taken it out.” To the same effect are Thixton v. Palmer, 210 Ky. 838, 276 S. W. 971, 44 A. L. R. 1379; Ulman v. Lindeman, 44 N. D. 36, 176 N. W. 25, 10 A. L. R. 1440; Goss v. Williams, 196 N. C. 213, 145 S. E. 169.

So, here, on the occasion of the accident, the ear was being driven for the purpose for which it had been taken out, and in furtherance of the mother’s business. In legal contemplation, it was being driven by the son.

The suggestion that it would be a harsh rule to hold the parent under such circumstances is, in my view, without merit, and entirely overlooks the demands of public policy. If a parent finds that a member of the family is unwilling to obey instructions to permit no one not a member of the family to drive the ear, the remedy is simple, i. e., withdraw permission to drive from that member of the family. Innocent third parties should not be permitted to suffer injury because of the willfulness of a member of a family. It is all very well to suggest that the injured party would have recourse against the person permitted by the member of the family to drive the car, but it is common knowledge that in many instances sueh a person is financially irresponsible.

The judgment should be reversed.


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    PATTEN v. PINKNEY.
    No. 5357.
    Court of Appeals of District of Columbia.
    June 1, 1931.
    Austin F. Canfield and Walter J. Casey, all of Washington, D. C., for appellant.

      Leon Pretzfelder and Edward L. Marthill, both of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, and GRONER, Associate Justices.
   MARTIN, Chief Justice.

An appeal from a decree denying probate to a will.

The record discloses that Louisa P. Lucas, a resident of the District of Columbia, departed this life in February, 1980, and in the same month a paper writing purporting to be her last will and testament was filed in the probate court by Edmund A. Patten, the executor named in the will, with the prayer that the same be admitted to probate as the valid last will and testament of the decedent. A caveat was' thereupon filed by Isaac Pink-ney denying the validity of the proffered instrument, and praying that it be refused probate.

An issue was regularly framed, presenting among others the question whether the paper writing purporting to be the last will and testament of Louisa P. Lucas, deceased, was executed and attested in due form as required by law; and whether such paper writing was the last will and testament of the decedent.

At the trial of the issue the original paper writing was exhibited to the court and jury. It is written upon two sheets of paper tacked together. The first sheet or page of the instrument contains eight separate bequests to various persons of specified sums of money, the amounts of which are severally set down in figures only. For illustration, the first bequest is copied reading as follows: “I give, devise and bequeath to Benson Doyle Mitchell $300.00’.” The second sheet or page contains a residuary clause devising the entire residue of the estate to Edmund A. Patten, who is also named as executor of the will. The signature of testatrix and the attestation of the two witnesses are written in due form upon this page.

At the trial the proponent called as witnesses the two subscribing witnesses to the will, namely, Mary Robinson and John W. Green.

The first witness, Mary Robinson, upon being shown the will identified her- signature thereon, and testified that testatrix first signed the will, that witness then placed her signature immediately thereafter, and that the second subscribing witness, John W. Green, signed immediately after that, that the will was signed by the testatrix in the presence of the witnesses, that the witnesses signed at the request of the testatrix, in her presence, and in the presence of each other, that the will was not read in the presence of witness, and after it was signed it was handed to Mr. Patten, the testatrix saying, “Now I have remembered those I wan. to remember,” that witness did not read the will nor was it read to her, and that she did not notice any blank spaces in the will.

The second witness, John W. Green, likewise identified his signature as a witness upon the will, and testified that the testatrix requested him to act as a witness, that testatrix signed the will first, that Mary Robinson signed it next, and that witness signed it last, that the witnesses signed in the presence of testatrix and in the presence of each other.

The witness further testified that at the time when he signed the will the amounts of the different legacies mentioned in it were not set down nor written, but that blank spaces were left in the will where the amounts of the legacies were intended to be added afterwards; and that the testatrix said she would fill the amounts in later. The witness also testified, “Mr. Patten told me they were filled in a few weeks afterwards.” A motion was made by the proponent to strike out this answer; it was overruled subject to exceptions.

This testimony was not substantially contradicted, nor "was any effort made to prove a republieation of the will after the blank spaces were filled in with the amounts of the legacies. The court thereupon directed a verdict finding that the paper writing was not the last will and testament of the decedent, and a decree was entered accordingly. This appeal was then taken.

We agree with the ruling of the lower court. The burden of proving the formal execution of the will rested in the first instance upon the proponent. 40 Cyc. p. 1727. The testimony submitted for that purpose established the fact that the instrument when signed by the testatrix was; not complete, and that testatrix afterwards undertook to complete it without a republication thereof. The relative importance of the blank bequests in the will is shown by the fact that they amount to $2,055, and the estimated value of the entire estate was about $6,000. The paper writing accordingly was not “executed and attested in due form as required by law,” and was not the last will and testament of the deee-dent. Henry v. Fraser, 58 App. D. C. 260, 29 F.(2d) 633, 62 A. L. R. 1364.

The question raised by the proponent’s objection to the testimony of witness John W. Green, to the effect that Mr. Patten, the executor, had told witness that the blanks “were filled in a few weeks afterwards,” is not free from doubt. But this evidence was cumulative only, and if it were stricken out the remaining proof would nevertheless clearly establish the facts upon which the court’s ruling was based. We do not regard the question as controlling in this appeal.

The decree of the lower court is accordingly affirmed, with costs.

HITZ, Justice, took no part in the consideration or decision of this case.


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    BLAND v. HERSHEY.
    No. 5127.
    Court of Appeals of District of Columbia.
    June 1, 1931.
    D. Edward Clarke and S. H. Feldman, both of Washington, D. C., for plaintff in error.
    J. William Shea and Madison L. Hill, both of Washington, D. C., for defendant in error.
    Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.
   MARTIN, Chief Justice.

John M. Bland, the plaintiff in error, was plaintiff in the municipal court. In his declaration he claimed, damages from Oscar E. Hershey, defendant therein, for property loss and personal injuries sustained in an automobile collision caused as alleged by the negligent operation of an automobile by defendant.

It appears from the bill of exceptions that the plaintiff as the only witness at the trial testified that he was operating his automobile at the time of the collision, and was driving in a northerly direction along Third street, 5. W., that upon arriving at the intersection of Third street and Maryland avenue he slowed up, and then and there saw the defendant’s automobile some distance up Maryland avenue coming in the direction of Third street from his right; that defendant’s automobile when plaintiff saw it was 139 yards distant up Maryland avenue; that plaintiff proceeded across the street intersection, and after crossing the same, and when the front wheels of his automobile were at a distance of about 3 feet from the north curb of Maryland avenue, defendant’s automobile collided with plaintiff’s, striking it about tbe right rear door, knocking it a distance of ‘40 feet over and upon the northeast curb of Third street and Maryland avenue on the Third street side, to his damage in the sum of $197.-90. Plaintiff testified that his car was under control at the time of the accident, and could have been stopped at any time, also that his right front fender was damaged with other parts of his automobile.

Paragraph “e” of section 2, article II, of the Traffic Regulations in force in the District of Columbia, was read in evidence, as follows: “A vehicle approaching a street intersection shall slow down and be kept under such control as to avoid colliding with pedestrians or vehicles. Operators of vehicles approaching a street intersection shall give right of way to vehicles approaching from their right; provided, that a vehicle making a right or left hand turn shall give the right of way to through traffic.”

Thereupon the court, sitting without a .jury, ruled “as a matter of law and fact” that plaintiff was guilty of contributory negligence and could not recover, and judgment was entered for defendant with costs.

In our opinion the testimony of the plaintiff does not disclose contributory negligence either in law or fact. According to his statement he approached the street intersection carefully and looked to the right to see if any ear was approaching from that direction. He saw defendant’s ear coming toward the intersection, but at such a distance as to give plaintiff sufficient time to cross in safety if the defendant exercised reasonable care in operating his car. The defendant, however, according to plaintiff’s testimony, drove his ear toward the crossing at an unreasonable • and reckless rate of speed and thereby caused the collision.

Assuming these statements to be true, it would follow that defendant' was guilty of negligence, but not that plaintiff was guilty of contributory negligence.

A traffic regulation giving the right of way to the automobile approaching from the right is relative and not absolute in character, and must be applied according to the circumstances of the ease. The operators of all automobiles upon the city streets must at all times exercise reasonable care to avoid injury .to others. The exercise of such care at street crossings is glaringly important. This applies with equal force to the operator approaching from the right, notwithstanding that he is given the right of way at the street crossing. The driver on the left when arriving at a crossing must look to the right to see whether any approaching car is near enough to prevent him from .safely proceeding across. In most parts of the city it is practically certain that some such approaching cars will be in sight, but if none is near enough, if properly operated, to make it unsafe for the left hand ear to cross, it may rightfully do so. If a collision then resulte because of the reckless and negligent driving of the right-hand operator, the latter is liable and cannot defend upon the ground of contributory negligence.

“While it was incumbent upon the plaintiff to respect the rule giving the right of way, at street intersections, to vehicles approaching from the right (Code, art. 56, § 209), yet if the way for a safe distance was clear of traffic coming from that direction, he should not judicially be declared negligent in not providing against the possibility of collision with a car which could not come into dangerous proximity to his own, unless it were unlawfully operated.” Urner, J., in Taxicab Co. v. Ottenritter, 151 Md. 525, 531, 135 A. 587, 589.

“This right of way is not absolute. The statute is a road regulation and not an inflexible standai'd by which to decide questions which arise over collisions at intersections of roads. The law does not confer the right of way without reference to the distance of the vehicles from the intersecting point, their speed, and respective duties. Precedence is not given under all circumstances to a vehicle on the right against a vehicle from the left. No driver, and especially no driver of an automobile, has leave to approach an intersection without using reasonable watchfulness and caution to have his vehicle under control. When approaching a highway crossing, as elsewhere on the public ways, eternal vigilance is essential to the practical matter of driving automobiles.” Dunn, J., in Fitts v. Marquis, 127 Me. 75, 77, 140 A. 909.

“Provision of a city ordinance that vehicles on main thoroughfares going in a general east and west direction shall have the right of way, as applied to automobiles, means only that, when two ears are approaching a street intersection, one on the main thoroughfare and the other on a crossing street, the latter shall give way to the other; but if there is no ear on the main thoroughfare when one approaches it on an intersecting street, sufficiently near to demand this right of way, such provision has no application. It does not authorize reckless or careless driving on the main thoroughfares, without regard to the safety of crossing cars, and the driver of a car on an intersecting street has a right to assume that ears on the main thoroughfare will be operated in a lawful manner, at lawful speed, and with due care.” Bramley v. Dilworth (C. C. A. 6th Cir.) 274 F. 267.

Mark v. Fritsch, 195 N. Y. 282, 88 N. E. 380, 22 L. R. A. (N. S.) 632, 133 Am. St. Rep. 800; Primock v. Goldenberg, 161 Minn. 160, 200 N. W. 920, 37 A. L. R. 484; Estabrook v. Main, 110 Conn. 271, 147 A. 822; Ray v. Brannan, 196 Ala. 113, 72 So. 16; Paulsen v. Klinge, 92 N. J. Law, 99, 104 A. 95; Salmon v. Wilson, 227 Ill. App. 286, 288.

The judgment of the municipal court is reversed, with costs, and the cause is remanded for further proceedings not inconsistent herewith.