text:
    FRANKLIN v. BIDDLE, Warden of the United States Penitentiary at Leavenworth, Kan.
    (Circuit Court of Appeals, Eighth Circuit.
    April 8, 1925.)
    No. 6765.
    1. Habeas corpus <@=96 — Province of court on habeas corpus proceeding instituted by defendant convicted of crime.
    In habeas corpus proceedings by a petitioner who has been convicted of a crime, the question for the court id, not the sufficiency of the indictment--against a direct attack by demurrer or motion in trial court, or the soundness of the trial court’s decision as to the sufficiency of the indictment, but the sufficiency of the indictment to give the trial court jurisdiction to enter upon inquiry and make a decision.
    2. Poisons <@=4 — Provision of Anti-Narcotic Act denouncing possession without payment of special tax held applicable only to persons required to pay tax.
    Harrison Anti-Narcotic Act,' § 8 (Comp. St. § 6287n), making it unlawful for any person not registered under the provision of the act to have possession or control of narcotics without payment of special tax as required by section 1 (section 6287g), held applicable only to the classes of persons required by such section to pay such tax.
    3. Poisons <@=9 — Indictment charging possession of narcotics without payment of special tax must allege defendant member of class required! to pay tax.
    Indictment charging possession or control of narcotics without payment of special tax, in violation of Harrison Anti-Narcotie Act, § 8 (Comp. St. § 6287n), must clearly and affirmatively allege that defendant is a member of the class of producers, manufacturers, dealers, and distributors required by section 1 (section 6287g) to pay such tax.
    4. Habeas corpus <@=30(2) — Petitioner held not entitled to discharge from custody because of insufficiency of indictment not affecting jurisdiction.
    Defendant convicted of possession of narcotics in violation of Harrison Anti-Narcotic Act, § 8 (Comp. St. § 6287n), was not entitled to discharge merely because indictment was insufficient in that it failed to affirmatively allege that defendant was a member of a class required to pay such tax by section 1 (section 6287g), on theory that imprisonment deprived him of liberty in violation of Const. Amend. 6, because indictment did not inform him of the nature and cause of accusation in violation of Amendment 5, since insufficiency of indictment did not affect the court’s jurisdiction.
    5. Habeas corpus <@=4 — Writ of “habeas corpus cannot be made to perform office of writ of error.
    The writ of “habeas corpus” cannot be made to perform the office of a writ of error, but is available only to relieve a prisoner from the restraint imposed by a judgment or order that is absolutely void on the ground that the court was without jurisdiction to render it.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Habeas Corpus.]
    Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.
    Petition for writ of habeas corpus by Harry Franklin against W. I. Biddle, as Warden of the United States Penitentiary at Leavenworth, Kan. From an order dismissing the petition, petitioner appeals.
    Affirmed.
    Frans E. Lindquist, of Kansas City, Mo., and John B. Boddie, of Chicago, Ill., for appellant.
    Al. F. Williams, U. S. Atty., and Alton H. Skinner, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
    Before SANBORN and STONE, Circuit Judges, and SYMES, District Judge.
   SANBORN, Circuit Judge.

This is an appeal from an order of dismissal by the court below of a petition of Harry Franklin for a writ of habeas corpus on the ground that his petition did not set forth facts sufficient to invoke the jurisdiction of that court to grant the writ and discharge the petitioner. The facts set forth in the petition that it is necessary to consider are these: Franklin was indicted, tried, convicted, sentenced, and committed to the penitentiary at Leavenworth by the United States District Court of the Northern District of California, where he was held by the Warden under an indictment which charged that, in violation of section 8 of the Harrison Anti-Narcotic Act (section 6287n, Comp. St.), he was, about May 7, 1923, in the city of San Francisco unlawfully in possession of 32 grains of morphine and 10 grains of cocaine hydrochloride, “said defendant then and there being a person required to register and pay a tax under the provisions of the act aforesaid as amended, and said defendant not then and there having registered under the provisions of the said act, and not then and there having paid the special tax provided for by the aforesaid act on the said morphine” or hydrochloride. After setting forth this indictment, Mr. Franklin alleges “that he has not been, since the 1st day of March, 1915, a person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away opium or cocoa leaves or any compounds, manufacture, salt, derivative, or preparation thereof;” that his imprisonment deprives him of his liberty in violation of the Sixth Amendment to the Constitution, in that said indictment did not inform him of the nature and cause of the accusation against him; that the indictment charged no crime, and his imprisonment is without due process of law and in violation of the Fifth Amendment to the Constitution.

Counsel for the petitioner contend that the trial, conviction, and imprisonment of Mr. Franklin violated these amendments because the charge in the indictment, “said defendant then and there being a person required to register and pay a tax under the provisions of the act aforesaid as amended, and said defendant not then and there having registered under the provisions of the said act, and not then and there’having paid the special tax provided for by the aforesaid act,” failed to cause him to be informed “of the nature and cause of the accusation against him,” and that his trial and conviction thereunder deprived him of his liberty “without due process of law.” In support of this contention counsel have cited eases involving indictments that charged defendants with unlawful possession of opium under the Anti-Narcotic Act, and that on direct attack in the trial courts or on appeal from the decisions on such attacks have been held insufficient where those indictments contained no averment that the defendant or defendants was one of the class required to register and pay the tax, such as appeared in the indictment in the case in hand in the words “said defendant then and there being a person required to register * * * under the provisions of the act.” United States v. Jin Fuey Moy (D. C.) 225 F. 1003, 1005, 241 U. S. 394, 399, 400, 402, 36 S. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854; United States v. Carney (D. C.) 228 F. 163, 164, 165; Swartz v. United States (C. C. A.) 280 F. 115, 116; Lewis v. United States (C. C. A.) 295 F. 678, 679; Hampton v. Wong Ging (C. C. A.) 299 F. 289, 290. They have also cited United States v. Woods (D. C.) 224 F. 278, and Johnson v. United States, 294 F. 753, 754, 756, in which, the indictments contained such an allegation and demurrers to them were sustained by Judge Bourquin and by the Circuit Court of Appeals of the Ninth Circuit. On the other hand, in Miller v. United States, 288 F. 816, 817, the Circuit Court of Appeals of the Fifth Circuit overruled the demurrer to an indictment that “charged the defendant with unlawfully having in his possession and under his control on July 6, 1922, in the Jackson division of the Southern District of Mississippi, a quantity of morphine, being a derivative of opium, defendant not having registered and being a person required to register,” and said “that was sufficient. It fully charges an unlawful possession * * * by one not registered who was a person required to register.”

The question in this ease, however, is not the sufficiency of the indictment against Mr. Franklin against a direct attack by demurrer or motion in the trial court; it is its sufficiency to invoke the exercise of the jurisdiction of the court in California which tried him to decide, if it had been requested by'the defendant in the proper time so to do, whether or not that indictment was sufficient to require him to stand, trial thereunder. And the test of jurisdiction is not right decision but the right to enter upon the inquiry and .make some decision. Foltz v. St. Louis & S. F. By. Co., 60 F. 316, 318, 8 C. C. A. 635; King v. McAndrews, 111 F. 860, 864, 50 C. C. A. 29. The proceedings and the decisions of the courts in the cases already cited where the sufficiency of similar indictments in like cases was involved leave little doubt of the jurisdiction of the federal court in California to hear and decide the question of the sufficiency of the indictment against Mr. Franklin, and to answer the other questions that may have arisen at the trial in his case.

-The Anti-Narcotie Act and its judicial interpretation support that conclusion. Section 1 (section 6287g, Comp. St.) provides that every person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, -or gives away opium or cocoa leaves or any compound, manufacture, salt, derivative, or preparation thereof, shall register and annually pay a special tax. Section 8 (section 6287n), declares that it shall be unlawful for any person not registered under the provisions of that act, and who has not paid the special tax, to have in his posession or under his control any of the aforesaid drugs, with certain exceptions not relevant here. The indictment of Mr. Franklin was filed on May 15, 1923. It is now, was then, and has been ever since the decision of the Supreme Court in United States v. Jin Fuey Moy, 241 U. S. 394, 402, 36 S. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854, on December 7, 1915, the established judicial construction of that section that the words “any person not registered” therein referred to included only the members of the class required to register by section 1; that is to say, the producers, manufacturers, dealers, and distributors of the drugs. In the light of that construction the averment in the indictment against Mr. Franklin that he unlawfully had in his possession on May 7, 1923, the morphine and cocaine hydrochloride, “said defendant then and there being a person required to register and pay a tax under the provisions of the act aforesaid,” could hardly have failed to inform the court that tried him and the counsel who participated in the trial that he was charged with being a member of the class of producers, manufacturers, dealers, and distributors required to register by section 1, and not to be a mere consumer or addict or member of a different class. The averment of this fact in the indictment ought to have been embodied in a clear, positive, and affirmative statement. It ought not to have been left in the slovenly and reprehensible form in which it is found. Nevertheless, the allegation was not so obscure or unintelligible that its meaning was not readily perceptible to court and counsel, nor was it, or the indictment which contains it, insufficient lawfully to invoke the jurisdiction of the court to which it was presented and which tried and convicted the petitioner thereunder.

In his petition for the writ, Mr. Franklin states in effect that he has not been since the 1st day of March, 1915, a member of the class of producers, manufacturers, dealers, and distributors required to register by section 1. This fact is not material in this court to the only issue in this case, which is the jurisdiction of the court in California to hear, try, and determine the case against Mr. Franklin. The fact he thus avers in his petition would have been a fitting.defense to a charge that he was a member of the class he denies that he was a member of in the court that tried him, but the issue to which that fact is relevant is not within our jurisdiction now. If any error was committed relevant to this fact at the trial in the court in California, that error cannot be reviewed in this proceeding. A writ of habeas corpus cannot be made to perform the office of a writ of error. It is available only to relieve a prisoner from the restraint imposed by a judgment or order that is absolutely void on the ground that the court was without jurisdiction to render it. In re Debs, 158 U. S. 564, 600, 15 S. Ct. 900, 39 L. Ed. 1092; In re Nevitt, 117 F. 448, 449, 54 C. C. A. 622.

The construction to be put on the indictment- and its sufficiency were matters which rested primarily with the court that tried the petitioner. “If it erred in determining them, its judgment was not for that reason void, Ex parte Watkins, 3 Pet. 193, 203; Ex parte Parks, 93 U. S. 18, 20; Ex parte Yarbrough, 110 U. S. 651, 654, but subject to correction in regular course on writ of error. * * * And, if the petitioners permitted the time within which a review on writ of error might be obtained to elapse and thereby lost the opportunity for such a review, that gave no right to resort to habeas corpus as a substitute.” Goto v. Lane, 265 U. S. 393, 402, 44 S. Ct. 525, 527, 68 L. Ed. 1070.

This petition for the writ of habeas corpus failed to state facts sufficient to warrant the conclusion that the court that tried the petitioner was without jurisdiction to try, eon-viet, and sentence him. And the order of dismissal of the petition for the writ is affirmed.


source: Caselaw Access Project

author: SANBORN, Circuit Judge.

license: Public Domain

text:
    David DELLARI, Appellant, v. W. I. BIDDLE, as Warden of the United States Penitentiary at Leavenworth, Kan., Appellee.
    (Circuit Court of Appeals, Eighth Circuit.
    April 8, 1925.)
    No. 6764.
    Appeal from the District Court of the United States for the District of Kansas. '
    Frans E. Lindquist, of Kansas City, Mo., and John B. Boddie, of Chicago, Ill., for appellant.
    Al. F. Williams, U. S. Atty., and Alton H. Skinner, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
    Before SANBORN and STONE, Circuit Judges, and SYMES, District Judge.
   SANBORN, Circuit Judge.

The appeal in this ease is from an order of dismissal of the petition of appellant for a writ of habeas corpus on the ground that the petition did not state facts sufficient to warrant the court below in granting it.

The questions in this case were the same as those treated in No. 6765, Harry Franklin v. W. I. Biddle, as Warden, etc., 5 F.(2d) 19. They were submitted for decision on the same briefs, and the order of dismissal in this case is affirmed for the reasons stated in the opinion in that ease, which is filed herewith.


author: FOSTER, Circuit Judge.

text:
    ARKANSAS GRAVEL CO. v. WILLIAMS ENGINEERING SERVICE, Inc.
    (Circuit Court of Appeals, Fifth Circuit.
    March 27, 1925.
    Rehearing Denied April 15, 1925.)
    No. 4478.
    Appeal and error <§=>729, 730(1) — Denial of motion for directed verdict and refusal of requested instructions considered, though assignment of error does not conform to rules.
    Though generally assignment of error does not conform to Circuit Court of Appeals rule 11, the appellate court may consider refusal of motion for directed verdict and denial of requested instructions.
    In Error to the District Court of the United States for the Southern District of Mississippi; Robert T. Ervin, Judge.
    Suit by the Williams Engineering Service, Inc., against the Arkansas Gravel Company. Decree for plaintiff, and defendant brings error.
    Affirmed.
    Joe T. Robinson and J. W. House, Jr., both of Little Rock, Ark., G. Garland Lyell, of Jackson, Miss., and C. T. Coleman, of Little Rock, Ark., for plaintiff in error.
    D. R. Barnett, J. G. Holmes, and C. D. Williams, all of Yazoo City, Miss., for defendant in error.
    Before WALKER, BRYAN, and FOSTER, Circuit Judges.
   FOSTER, Circuit Judge.

There is very little or ho dispute as to the material facts in this ease. It appears that the defendant in error, hereafter referred to as the Engineering Company, had a contract to build a stretch of concrete road in Mississippi of about four miles, with three bridges, and entered into a contract with the plaintiff in error, hereafter called the Gravel Company, to furnish the necessary sand and gravel for the work. The material was to be obtained from a certain sand and gravel bar in the Yazoo river, for which the Engineering Company had made arrangements, and pumped by the Gravel Company into overhead bins situate at a point convenient to the work, for which it was to receive $1, per cubic yard. The contract provided that the Gravel Company was to screen and wash the gravel to the satisfaction of the state highway engineer. The contract further provided that if sufficient material could not be obtained from the said bar, and the Gravel Company was obliged to go elsewhere in the Yazoo river to get it, the price should be raised to $1.25 per cubic yard if the distance exceeded five miles. The contract was contingent upon the ability of the Gravel Company to obtain acceptable sand and gravel from the Yazoo river, and in the event that the material was not approved by the highway engineer, after every reasonable effort had been made to make it so, then the contract was to be at an end and the Engineering Company was to pay one-half of the operating expenses of the Gravel Company, incurred in bringing its equipment from Arkansas City to the point in the Yazoo river where the dredging was to be done.

The Gravel Company performed part of the contract and discovered it was a losing one. Attorneys representing it then, without notice to the Engineering Company, obtained from the highway engineer a letter, addressed to the said attorneys, stating in effect that the material already supplied was not acceptable in its then condition. At that time some tests had been made of the mate-’ rial and had been proven unsatisfactory. Later on, other tests were made, with the result that it was accepted and used in the work. The Gravel Company assumed this letter to be a final rejection of all materials from the bar in the Yazoo river from which it was contemplated it should be first taken, and abandoned the contract. Thereafter additional material was obtained by the Engineering Company from other sources and the road contract was completed.

Suit was brought by the Engineering Company to recover the difference between the contract price and the increased cost of the additional material needed and for the rent of a stiff-legged derrick supplied by them to the Gravel Company. The Gravel Company filed a cross-complaint, claiming compensation for one-half of its expenses under the contract. The cross-claim was decided adversely by the court, and the case went to the jury on the claim of plaintiff for damages. A verdict for plaintiff resulted, and judgment was entered accordingly, to reverse which this writ of error is prosecuted..

The assignment of errors does not conform to rule 11 of this court, which requires each error relied upon to be separately and particularly set out, and it is difficult to determine what plaintiff in error relies on for a reversal, except in a general way. However, it is reasonably certain that a number of special charges and a request for a directed verdict were refused and proper exceptions taken. These we may consider.

There is no question that the court properly instructed the jury to reject the cross-claim of the Gravel Company, and properly refused the motion for a verdict in its favor. Without considering the circumstances surrounding the obtaining of the letter from the highway engineer above referred to, the letter itself was not a final rejection of the material. The most it stated was that the material was not acceptable in its then condition. At that time no effort had been made by the Gravel Company to wash and screen the material, as it was obliged to do by its contract, and, while there is some testimony in the record that would tend to show that such treatment would not make it acceptable, this is entirely overcome by the fact that it was subsequently accepted and used without any additional treatment.

It is quite evident that the Gravel Company was seeking a pretext to evade compliance with an unprofitable contract. The amount of damages sustained by the Engineering Company was clearly proven. Objection was made by the Gravel Company to the buying of additional material, on the theory that the Engineering Company should have procured some one else to complete the contract for dredging; but it is shown that, had that method been adopted, the resulting damages would have been greater.

The court charged the jury fully and fairly on the law of the case, and gave one special charge, requested by the Gravel Company, to the effect that, if the jury found the Gravel Company had used every reasonable effort to make the sand and gravel acceptable to the highway engineer, and that it was then rejected by him, it had the right to treat the contract as at an end, and the plaintiff was not entitled to recover. This was most favorable to the defendant, perhaps more favorable than they had the right to request.

Without specifically referring to the other charges requested and refused, it is sufficient to say that there was no error in their refusal.

As no error appears in the record, the judgment is affirmed.


author: WALKER, Circuit Judge.

text:
    C. B. FOSTER PACKING CO. v. LAMEY.
    (Circuit Court of Appeals, Fifth Circuit.
    March 24, 1925.)
    No. 4502.
    1. Master and servant <§=>294(5) — Instruction on servant’s performance of nondelegable duty held not erroneous.
    In action for injuries to oyster shucker, ■sustained when caught between oyster truck, at which she was working, and another loaded truck, when other truck was struck by third truck being moved by other employees, charge as to negligence of servant performing non-delegable duty held not objectionable, as failing to instruct jury as to what constitutes nondelegable duty.
    2. Master and servant <§=>286(27) — Evidence held insufficient for submission of negligence of employer.
    In action for injuries to oyster shucker, sustained when caught between oyster truck at which she was working and another loaded truck, when other truck was struck by third truck being moved by other employees, in which there was no evidence that employer permitted or consented to conduct of its employees in not giving signals or notice of truck movements likely to endanger other employees, and employer’s evidence tended to prove that such employees had been instructed to give signal, employer was entitled to directed verdict.
    3. Master and servant <§=>107(5) — Duty of employer to furnish safe place of work stated.
    Employer’s obligation to provide reasonably safe place for employees to work does not impose on him the duty of keeping place safe at every moment of their work, so far as its safety depends on due performance of that work by them and their coemployees; but he is required merely to use reasonable diligence to furnish a reasonably safe place and competent coemployees, and to prescribe such reasonable regulations as experience shows may be best calculated to secure the safety of employees.
    4. Master and servant <§=>185(7)— Employer not Hablé for consequences of employee’s noncompliance with regulation prescribed for safety of coemployees.
    Employer, who used reasonable diligence to furnish employee a reasonably safe place to work and competent coemployees, and to prescribe such reasonable regulations as experience shows may be best calculated to secure the safety of employees, is not liable for the consequences to an employee of a danger created without employer’s knowledge or consent, during progress of work by other employee’s noncompliance with regulation prescribed for the safety of coemployees.
    In Error to the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge.
    Action by Mrs. Mary Byrd Lamey against the C. B. Foster Packing Company. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded, with directions.
    Carl Marshall, of Bay St. Louis, Miss., and J. H. Mize, of Gulfport, Miss. (Mize & Mize, of Gulfport, Miss., on the brief), for plaintiff in error.
    L. W. Maples, of Gulfport, Miss. (L. W. Maples, of Gulfport, Miss., and H. A. Kruse, Jr., of Biloxi, Miss., on the brief)', for defendant in error.
    Before WALKER, BRYAN, and POSTER, Circuit Judges.
   WALKER, Circuit Judge.

This was an action by the defendant in error to recover damages for personal injuries sustained while she was engaged as an oyster shueker in plaintiff in error’s oyster canning factory at Biloxi, Miss. The parties are herein referred to by their designations in the trial court.

Each of the two counts of the declaration charged ‘that, while plaintiff was at work shucking or opening oysters from a car or oyster truck on a track in the factory, she was injured as a result of being caught between that car and another loaded car on the same track, in consequence of the last-mentioned car being hit or struck by a third car, which was being moved by hand by employees of the defendant, to whom was assigned the task of pushing ears to the place -where the oysters were steamed, and from that place over the tracks to where the oysters were to be shucked or opened.

The first count alleged that the defendant was negligent in permitting its employees, who pushed its oyster trucks or cars over its tracks, to push said cars or trucks, over said tracks without giving signals or notice to plaintiff and other employees, who were at work where they were likely to be injured by cars so being moved. The second count contained a charge of negligence similar to that contained in the first count, and further alleged that defendant was negligent in failing to promulgate any rules as to giving signals or notice to plaintiff and other employees, situated and engaged as plaintiff was when she was hurt, of the approach of cars so being moved, and that plaintiff was injured by reason of such negligence.

Exceptions were reserved to part of the charge given by the court to the jury, and to the court’s refusal to instruct the jury to find in favor of the defendant.

The part of the court’s charge which was excepted to was the following: “If she was injured by reason of the negligence of a servant performing a nondelegable duty for the master.” That exception was stated to be “upon the ground that what is a non-delegable duty is a question of law, and the court did not state the facts that constitute a. nondelegable duty, and there is no question of nondelegable duty in this case.” • In a preceding part of its charge the court stated : “The duty to furnish a reasonably safe place in which to work is a nondelegable duty; that is to say, it cannot be delegated by the employer to a servant, and if the employer does delegate such duty to a servant, then the employer is liable if the servant fails to perform one of those nondelegable duties.” The part of the charge which was excepted to was not subject to objection on the ground stated. The court’s charge did instruct the jury as to what constitutes a nondelegable duty. The casei involved a question as to the performance by the defendant of its nondelegable duty to. furnish-its employees a safe place for work.

The plaintiff introduced evidence which tended to prove that she was hurt in. the way alleged in the declaration, and that no signal or warning was given of the approach of the car which was being moved and struck the loaded ear next to the one at which plaintiff was working. None of that evidence tended to prove that the defendant permitted or consented to the conduct of its employees in failing to give signals or notice of car movements likely to endanger employees at work, or bore upon the question whether defendant did or did not promulgate rules as to giving signals or notice of' car movements on tracks in the factory.. Evidence introduced by the defendant tend-ed to prove that the two employees charged' with the duty of moving cars or trucks from one place in the factory to another were instructed by the defendant to give a signal-every time they switched or moved a ear, to-let other employees know, so they could get out of danger. The evidence to that effect was uneontroverted. In the just-mentioned' condition of the evidence the plaintiff was not entitled to recover because of the absence of evidence to support the charge of' negligence made in either count of the Complaint. It follows that the defendant was-entitled to have the jury instructed to find-, in its favor, and that the court erred in refusing to give such instruction.

Por the purposes of another trial,. in which different evidence may be adduced, the following statement is made: The obligation of an employer to provide a reason— ably safe place for bis employees to work does not impose on him tbe duty, as towards them, of keeping that place safe at •every moment of tbeir work, so far as its safety depends upon due performance of that work by them and tbeir eoemployees. All that tbe employer is required to do in that regard is to use reasonable diligence to furnish a reasonably safe place for bis employee to work and competent coemployees, and to prescribe such reasonable regulations as experience shows may be best calculated to secure tbe safety of employees. If tbe employer does that much, be is not liable for tbe consequences to an employee of a •danger, created, without tbe employer’s knowledge or consent, during tbe progress of the work, by another employee’s noncompliance with a regulation prescribed for the' safety of his coemployees. Armour v. Hahn, 111 U. S. 313, 4 S. Ct. 433, 28 L. Ed. 440; Central Railroad Co. v. Keegan, 160 U. S. 259, 267, 16 S. Ct. 269, 40 L. Ed. 418; Cybur Lumber Co. v. Erkhart, 238 F. 751, 151 C. C. A. 601; 18 R. C. L. 736.

Because of tbe above-mentioned error, tbe judgment is reversed, and the cause is remanded, with direction that a new trial be .granted.

Reversed.


author: KENYON, Circuit Judge.

text:
    STROUD v. HARRIS et al.
    (Circuit Court of Appeals, Eighth Circuit.
    March 26, 1925.)
    No. 6744.
    4. Libel and slander <§=45(2) — Letter from bondholder and stockholder to other bondholders concerning manager of corporation held qualifiedly privileged.
    Letter from bondholder and stockholder to •other bondholders, written after foreclosure proceedings had been instituted, stating that manager of corporation was trying to turn the assets over to the bondholders, that assets were four or five times as great as the amount ■of the bonds, and that it was reasonable to believe that manager, as one of the largest bondholders, might so manage the affairs of new •company as to deprive stockholders in new •company of stock therein, until manager and his friends would own the factory, held quali-fiedly privileged, and not libelous, in absence of actual malice.
    A, Libel and slander <§=I23(I) — Whether defendants authorized Writing of alleged slanderous letter held for jury.
    In action by manager of corporation against ■certain stockholders for libel, based on letters written to other stockholders, question whether defendant stockholders authorized certain persons to write letters for them, and to attach their names thereto, held question of fact for jury.
    3. Libel and slander <§=45(2) — Letters from some stockholders to others as to management and condition of corporation held quali-fiedly privileged.
    Letters written by some stockholders to other stockholders concerning condition and management of corporation, and making charges against manager, held qualifiedly privileged.
    4. Libel and slander <§=5I(I) — Express malice essential to recovery, where communications are qualifiedly privileged.
    Where communications are qualifiedly privileged, they are relieved of presumption of malice attendant on defamatory statements therein contained; but where a libelous communication is made with express malice, even though it be qualifiedly privileged, the defamed party may recover, since qualified privilege is destroyed by express malice.
    5. Libel and slander <§=I23(8) — In suit based on qualifiedly- privileged statements, express malice ordinarily for jury.
    In action for libel, based on qualifiedly privileged statements, the question of express malice is ordinarily for the jury.
    6. Libel and slander <®=82 — Innuendo alone not sufficient to identify person referred to.
    Innuendo alone is not sufficient to identify person referred to in alleged libelous letters.
    7. Libel and slander <§=II2(2) — Letters from stockholders to others, criticizing management of corporation by plaintiff, held insufficient to show want of good faith.
    In action for libel by manager of corporation against stockholders, letters written by defendant stockholders to other stockholders, criticizing management of corporation’s affairs, held insufficient to show want of good faith in writing and sending letters, or authorizing letters to be written and sent.
    8. Libel and slander <§=II2(2) — Evidence held insufficient to prove connection between certain defendants and alleged libelous letters.
    In action by manager of corporation against certain stockholders' for libel, based on letters written to other stockholders, evidence held insufficient to connect certain of the defendants with certain letters, or to show a conspiracy between such defendants and writer of such letters to libel plaintiff.
    In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.
    Action by H. L. Stroud against J. R. Harris and others. To review an adverse judgment, plaintiff brings error.'
    Affirmed.
    Malcolm I). Rosser, of Muskogee, Okl., and J. B. McDonough, of Ft. Smith, Ark., for plaintiff in error.

      N. F. Lamb, of Jonesboro, Ark. (Lamb & Frierson, of Jonesboro, Ark., and H. L. Pearson, of Fayetteville, Ark., on the brief), for defendants in error.
    Before STONE and KENYON, Circuit Judges, and SCOTT, District Judge.
   KENYON, Circuit Judge.

This is a writ of error to reverse a judgment of the District Court of the United States for the Western District of Arkansas. Plaintiff in error was plaintiff in the trial court, and defendants in error were defendants there. Parties will be designated as in the trial court. The action was against a number of defendants, viz. J. R. Harris, G. W. Culber-house, W. Higginbotham, R. L. Muse, H. A. Stroud, H. H. McAdams, and Dan L. Jones. In the original complaint, C. E. Harris, Leroy C. Norris, and L. E. Watson were also made defendants. At the commencement of the trial the ease was dismissed as to C. E. Harris and L. E. Watson. The court directed a verdict as to defendant Norris, and no exception was taken thereto. No notice was ever served on Dan L. Jones, and no appearance entered for him. At the close of plaintiff’s testimony the court sustained a motion to direct a verdict in favor of defendants J. R. Harris, R. L. Muse, H. A. Stroud, and H. H. McAdams. At the close of all the testimony the court sustained a motion to direct a verdict in favor of the remaining defendants, G. W. Culberhouse and W. Higginbotham.

The action was to recover damages for alleged libel, plaintiff claiming that defendants entered into a conspiracy to injure and libel him. Briefly the facts giving rise to the action are these:

In January, 1921, plaintiff was appointed general manager of the Oklahoma Auto Manufacturing Company. He was' a stockholder at the time and had been a director, and had a good deal to do with the Auto Company’s acquisition of certain property of the J. B. Woods Plow Company. At the time he became general manager the company was in financial distress, being indebted in approximately the sum of $400,000. A petition in bankruptcy was filed, and plaintiff was appointed receiver March 10, 1921. He was discharged as receiver August 29, 1921. Pri- or to his becoming general manager, a mortgage had been executed on the property for the purpose of securing bonds which were to be issued to realize funds with which to liquidate the debts. This bond issue was to be in the sum of $150,000. Plaintiff made some composition agreement with the creditors to pay them 25 per cent, on the dollar. It was impossible to sell the bonds on the general market. Plaintiff thereupon urged the stockholders to subscribe therefor, which they did, to the extent of about $100,-000, plaintiff himself taking $25,000 thereof. The deed of trust on the property to secure the payment of the bonds provided for a sinking fund beginning January 1, 1922, in the sum of $5,000 on that date, $10,000 to be paid into the sinking fund every six months. Interest on the bonds was payable January 1st and July 1st of each year. The sinking fund and the interest not having been taken care of, a number of the bondholders held a meeting at Muskogee in January, 1922, at which time it was determined that the deed of trust should be foreclosed. The suit to foreclose the same was filed shortly thereafter. Trouble arose between some of the defendants and the plaintiff, and much discontent apparently with plaintiff’s management of the affairs of the company was manifest; likewise much feeling over the foreclosure proceeding. The trouble brewing between certain of the defendants and plaintiff resulted in plaintiff being relieved of his position as general manager of the Oklahoma Auto Manufacturing Company March 22, 1922.

Plaintiff claims, and it is the basis of this suit, that after the foreclosure suit was commenced a number of letters were written by the defendants, acting together, which were libelous in their nature, and which resulted in great injury to him. The first letter complained of is of date March 8,1922, which is addressed to the stockholders of the Oklahoma Auto Manufacturing Company, signed by G. W. Culberhouse, W. Higginbotham, A. D. Anderson, Committee. The part which is claimed to be libelous, is the following: “In our opinion, if some one had been in charge of the company that really wanted to meet this payment, it. would have been an easy matter to have raised this amount of money from the sale of trucks. We would only have to sell four trucks to raise that small sum. We have been told that Mr. Stroud owns about one-fifth of the bonds, so, as the old saying goes, where your money is, your heart is there also.” It is claimed this charges a violation of his trust as general manager.

The second letter complained of is of date March 10, 1922, signed by defendant H. H. McAdams, who at the time was president of the First National Bank of Jonesboro,. Ark. As indicative of the character of the letter, we quote the following from pages 70 and 71 of the record:

“The First National Bank, Jonesboro, Arkansas.
“March 10, 1922.
“To the Bondholders of the O. K. Truck Company:
“I am a bondholder, also a stockholder, in the O. K. Truck Company. From the best information that I am able to obtain in regard to the affairs of the company, it that an effort is being made by the present manager, H. L. Stroud, to turn the assets of this company over to the bondholders without any consideration of the rights of the stockholders. In fact, he made the statement before a group of stockholders that he wanted the bondholders to have the factory, and would not be willing to invest a dollar in bonds unless he felt sure that they would get it.
“I am opposed to this. In the first place it is not right. Many poor people and even widows invested 'every dollar they could spare in this company with the hope of making money from their investment, and are not able to stand such a loss. All who invested in stock invested for that purpose. The stockholders have not had an opportunity since the settlement was made with the creditors to meet the payments on these bonds since the gentleman who is so anxious to have the bondholders own the assets of the company has had the management of the company's affairs. The assets of the company are four or five times as great as the amount of the bonds, and it is unfair to take this amount of money from those stockholders who were not able to buy bonds and give it to the few more fortunate ones who were able to buy bonds. We bondholders are entitled to the amount invested in bonds and interest on the same, and that is all we are entitled to as bondholders. The remainder of the company assets belong to the stockholders. 51 * * As he is one of the largest bondholders, it is reasonable to believe that he might so manage the affairs of the new company as to make it necessary to issue bonds again, and deprive those of us who would be stockholders in this new company of our stock in it, just as he is now trying to deprive the stockholders of their present stock, and so on until he and his closest friends own the factory.”

The next letter complained of is that of March 13, 1922, signed by Culberhouse, Hig-ginbotham, and A. D. Anderson. The parts of this letter complained of are the following:

“Dr. H. A. Stroud, of Jonesboro, Ark., wants the stockholders to know that he is in no way related to H. L. Stroud, the present manager of the Company. Be careful as to who you give a proxy to. Be sure how they stand. Some of the directors have betrayed us once. So take no more chances.” The next letter is that of March 14, 1922, addressed to the stockholders of the Oklahoma Auto Manufacturing Company, and hears the signature of Higginbotham, Culberhouse, and Anderson. (Anderson was not a party in the case.) We refer to certain portions thereof, ineluding the parts complained of, viz.:

“Jonesboro, Ark., March 14,1922. “To the Stockholders of the Oklahoma Auto Mfg. Co.:
“In our letter of March 8 we told you that if there was not a meeting of the stockholders at once, and a board of directors elected that would look after the interest of the stockholders, that we would lose our entire investment in this company.
“We are sorry that we now have to inform you that H. L. Stroud and his crowd, who want to own the Oklahoma Auto Mfg. Co., have filed suit to foreclose on their bonds and take charge of the factory. If Mr. Stroud could get by with this suit and succeed in getting the company turned over to the bondholders, and in another year’s time give another simple twist of the wrist and squeeze out the little bondholders, he would make more money than he could make at anything else in a thousand years. He can easily figure that if he can succeed in closing us out that he will clean up around a half million dollars. Are you willing for him to sell us out this way? * * *
“We owe the bondholders $4,000 interest that should have been paid January 1st. We have sold enough tnicks in one week since January 1st to have paid three times the amount of interest due January 1st. Now, why didn’t H. L. Stroud pay the bondholders their interests? He can’t say that he did not have the money and tell the truth, for we know better; but instead of paying' the bondholders their interests, as he should have done, we are informed that he bought a car load of engines that we did not need. Some dodging around to avoid paying this interest, isn’t it?
“We are willing to put up the money to pay the bondholders the amount we justly owe and should have paid January 1st, but we will not put up a dime in H. L Stroud’s hands. He might buy some more engines with it. From the way he buys engines, you can see that he intends to stay in the truck business.”

The next letter is that of March 15th, which is signed, by Culberhouse, Higgin- . botham, and Anderson, in which letter occurs this:

“Jonesboro, Ark., March 15, 1922. “To the Stockholders of the O. K. Truck Company:
“ * *• * We have been told that H. L. Stroud went to a certain insurance man in Muskogee and offered to insure the company for $100,000, provided the agent would split his commission with him. The insurance agent refused to split the commission with Stroud, so, ‘unless Stroud could make some money out of the deal for himself, he would not have the company’s property insured. * * *
“We are advised that he is getting out a letter to the stockholders to-day. We do not know what his letter will contain, but, whatever it is, we will reply to it as soon as we get a copy of his letter; so don’t send your proxy to him, unless you want to lose your stock, for he is the man that is taking it away from you. We have been rather easy on him in our former letters.
“If you have not already sent your proxy to R. L. Muse, of Jonesboro, Ark., either send it to him to-day or send it to W. R. Lantz, Muskogee, Okl. Mr. Lantz is president of the company and is absolutely all right. He is in favor of a square deal to everybody. He wants to pay the bondholders their interest, like an honest man should do, and protect the stockholders.”

Another letter was sent out April 27, 1922, addressed to the stockholders of the Oklahoma Auto Manufacturing Company, signed by Higginbotham, Culberhouse, and Anderson, which does not seem to be complained of. These letters were sent only to the stockholders of the Oklahoma Auto Manufacturing Company. The balance of the letters claimed to be libelous were sent at a later period to bondholders and stockholders, and were not signed by any of the defendants, except Jones. The eourt held that the letters of March 8th, March 13th, March 14th, and March 15th, which purported to be signed by Culberhouse, Higginbotham, and Anderson, were privileged, and that there was no evidence of express malice in writing or sending them. It further held that the letter of March 10th, written by H. H. McAdams, was privileged, and that there was no evidence of express malice as to that, and further held that as to the letters commencing September 22, 1922, and following on through to January, 1923, there was no evidence to show that defendants had anything to do with them, or were responsible therefor. It is the claim of plaintiff that defendants acted together with a malicious, common interest and purpose in writing the letters to defame and injure the plaintiff; that the letters were libelous on their face and were not privileged.

The action of the court at the conclusion of the plaintiff’s evidence in sustaining a motion to direct a verdict as to J. R. Harris, R. L. Muse, and Dr. H. A. Stroud was entirely justified. There is no substantial evidence in the record that would warrant submitting the case as to them to the jury. The action of the eourt in sustaining the motion for verdict as to defendant H. H. McAdams raises questions as to the contents of the one letter written by him. We are satisfied the court was entirely correct in its action as to this defendant. McAdams, as one of the bondholders and stockholders, was writing to the other bondholders. The statements he made in the letter were not only for the purpose of protecting his own interests, but their interests also, and show that he was attempting to protect the' stockholders as well. Some of the statements may be slightly exaggerated, especially the one as to assets of the company; but the evidence is sufficient to show that he was stating what he honestly believed to be true, and what, from statements made to him by parties in whom he had confidence, he had reasonable ground to believe was true. The letter was a qualifiedly privileged communication, and there is nothing to show that McAdams was actuated by. any malice whatever. Unless McAdams were one of a conspiracy to defame (which we later discuss), the letter was not sufficient to sustain a verdict against him.

The real and only doubtful question here, we think, is as to defendants Culberhouse and Higginbotham. The letters upon which the action is predicated naturally divide themselves into two classes. The one includes those writteii prior to March 22, 1922, when plaintiff ceased to be the general manager of the company. These letters, with the exception of the McAdams'letter, purport to be signed by Higginbotham, Culberhouse, and Anderson. The letters written after that time, with the exception of the letter of April 27, 1922, are signed by the Oklahoma Auto Manufacturing Company, by Dan L. Jones, superintendent, or Urie D. Harris, secretary. Jones, it must be remembered, while a party to this action, was not served 'with notice. In the first group of letters, that of March 8, 1922, is the only-one which defendants Culberhouse and Hig-ginbotham admit responsibility for. They permitted Jones to write the letter and attach their names. They claim in evidence that the letters of March 13th, 14th, and 15th, to which their names are attached, were written by Jones with no authority from them, and with no knowledge upon their part. In the original answer filed to the amended complaint it was admitted that Cul-berhouse and Higginbotham wrote these letters. An amended answer alleged that such admission was an inadvertence by counsel and untrue. However, whether they were responsible for any of the letters to which their names were signed (excepting the letter of March 8th, which is admitted), we think, under all the circumstances, would be a question of fact for the jury, and consequently, for the purpose of this opinion as to the justification for an instructed verdict, we consider these defendants as responsible therefor.

That these letters written in March (being communications from the stockholders of a corporation to other stockholders concerning matters in which both had an interest) were qualifiedly privileged is well established by the authorities. The law on this subject is not intricate, and there is nothing to be gained in extended comment, or citation of authorities. We refer, however, to a few text-writers and cases where the principles of law applicable are announced:

17 Ruling Case Law, § 88, states some of the propositions very clearly as follows: “A communication made in good faith on any subject-matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. 9 “ e’ A publication loses its character as privileged, and is actionable, on proof of actual malice, or, at least, such gross disregard of the rights of the person injured as is equivalent to malice in fact.”

Newell, Slander and Libel (4th Ed.) § 432: “Parties Having a Common Interest. In those eases where one person has an interest in the subject-matter of the communication, and the person to whom the communication is made has a corresponding interest, every communication honestly made in order to protect such common interest- is privileged by reason of the occasion”

This court discussed the matter in Wise v. Brotherhood of Locomotive Firemen and Enginemen, 252 F. 961, 963, 164 C. C. A. 469, 471, and said: “A communication is privileged if made bona fide by one who has an interest in the subject-matter to one who also has an interest in it or stands in such a relation that it is a reasonable duty, or is proper, for the writer to give the information.”. See, also, National Cash Register Co. v. Sailing, 173 F. 22, 97 C. C. A. 334; Massee v. Williams, 207 F. 222, 124 C. C. A. 492; Polk v. Missouri Pac. R. Co. et al., 156 Ark. 84, 245 S. W. 186, 29 A. L. R. 220; Bohlinger v. Germania Life Ins. Co., 100 Ark. 477, 140 S. W. 257, 36 L. R. A. (N. S.) 449, Ann. Cas. 1913C, 613; R. A. Holmes v. Royal Fraternal Union, 222 Mo. 556, 121 S. W. 100, 26 L. R. A. (N. S.) 1080; Finley v. Steele et al., 159 Mo. 299, 60 S. W. 108, 52 L. R. A. 852; La Plant v. Hyman et al., 66 Colo. 128, 180 P. 83; Chambers v. Leiser, 43 Wash. 285, 86 P. 627, 10 Ann. Cas. 270; Ashcroft v. Hammond, 197 N. Y. 488, 90 N. E. 1117; Ross v. Ward, 14 S. D. 240, 85 N. W. 182, 86 Am. St. Rep. 746 ; 36 Corpus Juris, § 205.

Where communications are qualifiedly privileged they are relieved of the presumption of malice attendant upon defamatory statements therein contained; but where a libelous communication is made with express malice, even though it be qualifiedly privileged, the defamed party may recover. Qualified privilege is destroyed by express malice.

Townsend on Slander and Libel (4th Ed.) says, at page 321: “Pew rules of law are of greater practical importance than that which requires proof of express malice, where the words are spoken under circumstances which make the communication privileged. The malice required to deprive communications of this sort of the protection arising out of the occasion of the speaking of the words, must be such as to induce the court, or any reasonable person, to draw the inference that the occasion has been taken advantage of to give utterance to an unfounded charge. Privileged communications comprehend all statements made bona fide in performance of a duty, or with a fair and reasonable purpose of protecting the interest of the person making them, or the interest of the person to whom they are made.” Wise v. Brotherhood of Locomotive Firemen and Enginemen, 252 F. 961, 164 C. C. A. 469; White v. Nicholls et al., 3 How. 266, 11 L. Ed. 591; Nalle v. Oyster, 230 U. S. 165, 33 S. Ct. 1043, 57 L. Ed. 1439; James Hollenbeck v. J. M. Ristine, 105 Iowa, 488, 75 N. W. 355, 67 Am. St. Rep. 306; Massee v. Williams, 207 F. 222, 124 C. C. A. 492. In White v. Nicholls et al., 3 How. 266, 11 L. Ed. 591, the Supreme Court held that falsehood and absence of probable cause amount to proof of malice. See, also, Post Pub. Co. v. Hallam, 59 F. 530, 8 C. C. A. 201.

The letters written in March being qualifiedly privileged, the decisive question here is whether the evidence was sufficient to warrant submitting the question of express malice as to the defendants to the jury. Ordinarily the question of malice is for the jury, but, if the facts are not sufficient in the judgment of the court to warrant the jury in finding express malice, it would be its duty to instruct a verdict. Outside of the letters it could not well be claimed that the evidence shows such personal feeling upon the part of defendants, excepting Jones, as to warrant a jury finding of express malice. Any such finding, therefore, would have to be based upon the letters. If the defendants honestly believed the statements made therein, and had reason to so believe — in other words, if they acted in good faith and did not use the privileged occasion as an opportunity to libel the plaintiff — there would be nothing on which a jury could base the charge of malice.

This leads us to an analysis of these letters. In the letter of March 8th, which it is admitted the defendants Culberhouse and Higginbotham authorized, the question of payment of interest on the bonds was discussed. It was stated that, if some one had been in charge of the company that really wanted to meet the payments, it would have been an easy matter to have raised that amount of money from the sale of trucks. This is a mere criticism of the business methods of the plaintiff. The statement that they had been told that plaintiff owned one-fifth of the bonds was an assertion of what the evidence shows to be practically a fact. The language, “where your money is, your heart is there also,” can in this day and age hardly be considered so false as to raise any implication of malice. As to the letter of March 13, 1922, purporting to be signed by the same defendants, but whose names the evidence shows were signed by Jones without authority, the only references that are relied on to show malice are that Dr. Stroud “wants the stockholders to know that he is in no way related to H. L. Stroud, the present manager of the company.” This may not be a delieate or pleasant reference, but there is nothing libelous in it. The phrase, “some of the directors have betrayed us once, so take no more chances,” does not specify the plaintiff. We find in the record, in one of the questions asked of a witness, the statement by plaintiff’s counsel that it was conceded that the foregoing language was intended to apply to plaintiff; but we find no such concession on the part of defendants or their counsel. Innuendo alone is not sufficient to make certain the identity of the person. Harris v. Santa Fé Townsite Co., 58 Tex. Civ. App. 506, 125 S. W. 77; McCallum v. Lambie, 145 Mass. 234, 13 N. E. 899; Newell on Slander and Libel, § 214.

The letter of March 14, 1922, purporting to be signed by the same defendants, refers to the suit to foreclose on the bond and plaintiff’s efforts to turn the property to the bondholders, and refers to plaintiff not paying the interest on the bonds, and also states they will not put a dime in plaintiff’s hands; that he might buy more engines with it. The reference to the purchase of engines is a criticism of plaintiff’s method- of doing business. Plaintiff’s bookkeeper, Robertson, had complained of his buying a carload of engines; said complaint being made to Dan L. Jones. The letter shows that defendant had knowledge of the communication to Jones, and believed that plaintiff had purchased too many engines. The letter of March 15th, complained of, has in it a reference to Stroud’s insurance matters, stating that he tried to secure a split of the commission of the insurance agent for insurance on the property. There certainly is sufficient evidence in this case to warrant a belief on the part of defendants that the statement was true. Outside of that, there is nothing in the letter from which any malice could be implied. The letter of April 27, 1922, purporting to be signed by these same defendants, has nothing in it that is complained of.

Taking therefore these letters, and placing responsibility, not only for the letter of March 8th, but for the other letters written in March, upon defendants Culberhouse and Higginbotham, do they show, not only false statements, but absence of any probable cause therefor? Defendants were stockholders and bondholders in this Automobile Company. Matters had come to their knowledge which they thought should be imparted to other stockholders and bondholders. These letters were addressed to the stockholders and were sent out to them. They had a right, within reasonable bounds, to acquaint the stockholders with the situation, and to advise them honestly and in good faith as to the facts which had come to their knowledge.

While the letters indicate some feeling and indignation, such naturally would exist if they believed plaintiff was endeavoring to favor the bondholders at the expense of the stockholders, and that plaintiff did not intend to have the interest on the bonds paid, and so assist in bringing about the control of the company by the bondholders. We do not say that plaintiff intended these things, but the evidence is sufficient to show that defendants had reasonable ground to believe that there was such an intention. It is a fair presumption from the record that plaintiff, as receiver and manager, had collected and handled over $113,000 of the company’s money, exclusive of amount received from sale of bonds. It would seem that out of this there could have been some interest payments on the bonds. The statements complained of in these letters, which were written in March, are not, in our judgment, sufficient, under all the circumstances disclosed by the record, to show want of good faith on the part of defendants Culberhouse and Higginbotham in writing and sending them to the stockholders, or authorizing, the same to be done.

As to the letters written subsequent to March 22, 1922, signed by Jones, representing the Oklahoma Auto Manufacturing Company, and by Harris, as secretary of the company, there is little doubt that, while they are in the nature of qualifiedly privileged communications, they evidence sufficient ire and contain such exaggerated statements and conclusions as to make the question of express malice for a jury as to defendant Jones. The other defendants, however, as to these letters, are responsible only if Jones were acting for them, or if there were a conspiracy of which they were a part, as claimed by plaintiff, to defame and libel him. It may be noted that some of the Jones letters are evidently in reply to some of the letters written by the plaintiff. Their correspondence, to characterize it mildly, was animated, and did not evidence any particular regard for one another. The evidence was totally insufficient to show a conspiracy between Jones and the other defendants to libel the plaintiff, and in the absence of conspiracy, and in the absence of Jones acting for the other defendants, they cannot be charged with responsibility for these later letters. The mere fact that some of these defendants lived m the same town, or that they were stockholders in the same company, and that they were evidently acting together to secure the removal of plaintiff as general manager, is not sufficient to establish a conspiracy to libel.

We are satisfied that the present defendants were not responsible for the letters complained of written after March 22, 1922. They were the personal work of Jones. We are also satisfied that defendants Stroud, J. R. Harris, Muse, and Norris had no connection with the writing of any of the letters; that the letters written prior to March 22d by defendants Culberhouse and Higginboth-am jointly, and also the one written by Mc-Adams, were qualifiedly privileged; that the statements of said letters were made by defendants in the honest belief that they were true, and for the purpose of protecting their own interests and those of the stockholders, and in the McAdams letters the bondholders. Hence, giving the most favorable consideration possible to plaintiff’s evidence, the court was justified on the whole record in directing a verdict for all the defendants.

The case is affirmed.


author: SYMES, District Judge.

text:
    CHICAGO & E. I. RY. CO. v. SELLARS.
    (Circuit Court of Appeals, Eighth Circuit.
    March 30, 1925.)
    No. 6790.
    1. Trial <@=3I4(I) — Supplemental instruction as to desirability of jury agreeing held error.
    Where the jury, after being out for some time, reported inability to agree, it was reversible error for the presiding judge to instruct them by reading an extract from a United States Supreme Court ease relative to the desirability of reaching an agreement; such extract, as an instruction, tending too strongly towards coercing the minority of the jury to surrender their honest convictions.
    2. Railroads <§=351 (12) — Refusal of instruction on contributory negligence of occupant of automobile held error.
    In action for death of occupant of automobile at crossing, in which answer made contributory negligence an issue by alleging specifically that occupant failed to look and listen and neglected to warn driver and negligently failed to exercise ordinary care to discover approaching train, refusal of requested instruction on contributory negligence helé error.
    3. Railroads <§=327 (12) — Care required of passenger of automobile.
    A passenger, who sits quietly in an automobile and allows the driver to take him into a place of danger, without effectively exercising his senses for his own protection or warning driver or making protest, is contributorily negligent.
    4. Railroads <§=>327(2) — Automobile driver stopping car on track to look back' at road sign held negligent.
    Automobile driver, who practically stopped car on track in direction of approaching train in order to look back at road sign, helé grossly negligent, precluding recovery by driver.
    5. Trial <@=»I39(I) — Testimony that headlight was burning and signals given, not contradicted by testimony of witnesses not in position to see and hear.
    In action for death in crossing collision, where witnesses for railroad as to whether locomotive headlight was burning, the bell rung and the whistle blown, were in a position to see and hear, and their evidence was of positive character, while plaintiff’s witnesses were not so situated and were not giving attention to those matters, no issue was made requiring submission of these questions to jury.
    In Error to the District Court of the United States for the Eastern District of Missouri; Jacob Trieber, Judge.
    Suit by Charles C. Sellars, administrator of the estate of Ida C. Sellars, deceased, against the Chicago & Eastern Illinois Railway Company. Judgment for plaintiff, and defendant brings error.
    Reversed, with instructions to grant new trial. »
    Frank H. Sullivan, of St. Louis, Mo. (Jones, Hooker, Sullivan & Angert and William O. Reeder, all of St. Louis, Mo., on the brief), for plaintiff in error.
    Charles P. Noell, of St. Louis, Mo. (Sidney Thorne Able, of St. Louis, Mo., on the brief), for defendant in error.
    Before SANBORN, Circuit Judge, and POLLOCK and SYMES, District Judges.
   SYMES, District Judge.

This suit results from a railroad crossing accident at Haub-stadt, Ind., on the night of August 26, 1922. A fast passenger train, operated by the plaintiff in error (defendant below), struck an automobile and killed instantly the wife of the plaintiff below, defendant in error here. He sued as the administrator of her estate and recovered a verdict.

We will first consider two questions of law that arose in the course of the trial.

The jury, after it had been out for some time, returned into court and received certain additional instructions upon the law. After further deliberation, they came in again, and in response to a question by the judge, announced they had not agreed upon a verdict; that they were unable to agree; that it was of no use to keep them together longer; that a great majority of the jurors thought they understood the court’s charge and the evidence, but the others saw it in a different light. The presiding judge then instructed them further by reading an extract from the case of Allen v. U. S., 164 U. S. 501, 17 S. Ct. 154, 41 L. Ed. 528, to which the defendant excepted. The jury retired, and in less than five minutes returned with a verdict for the plaintiff. This excerpt from the Allen Case, supra, has been condemned as an instruction by this court in Stewart v. U. S., 300 E. 786, where it is set forth in full, as tending too strongly towards coercing the minority of the jury to surrender their honest convictions. The facts of the two eases are similar enough to make its use here a reversible error.

We have carefully considered the opinion of this court in Hill v. Wabash R. R. Co., 1 F.(2d) 626. The rule laid down there that: “All parties to the .controversy are entitled to the uncoerced judgment of the jurymen, and the test of such an instruction as herein complained of is whether it is in fact an attempt to assist the jury or to coerce them. If it is an attempt to break down the individual judgment and honest conviction of a juryman in order * * * to reach a verdict, it is erroneous; but if it is an admonition or request to the jury to reason together, to consider one another’s views, and attempt to reach a conclusion, it is entirely proper” — condemns the instruction under consideration here.

The court instructed the jury that there was no plea of contributory negligence by the railroad company, and that there could not be any, because the deceased, Mrs. Sellars, was only a guest or passenger in the car of Mrs. Burris, and had no control over it. This was error for two reasons: Eirst, the answer made contributory negligence an issue by alleging specifically that the said Ida C. Sellars failed to look and listen for approaching trains, and neglected to warn the said Eleanor Burris of the danger in crossing the track, and negligently failed to exercise ordinary care to discover the approach of the train, etc. Secondly, this court has passed upon the liability of a passenger riding in an automobile driven by another, and has held that, although the negligence of the driver is not imputable to the passenger and the latter is not precluded from a recovery by the former’s negligence, yet the passenger is himself chargeable with contributory negligence, when by looking he could have seen the train in time to have prevented the accident. A passenger who sits quietly in an automobile and allows the driver thereof to take him into a place of danger, without effectively exercising his senses for his own protection, or without warning 'the driver or making a protest, is guilty of contributory negligence and cannot recover. It therefore follows that the jury should have been instructed on the question of contributory negligence as requested by the defendant. Bradley v. Missouri Pacific R. R. Co. (C. C. A.) 288 F. 484; Noble v. C. M. & St. Paul R. R. Co. (C. C. A.) 298 F. 381; Engstrom v. Canadian Northern R. R. Co. (C. C. A.) 299 P. 929 and A., T. & S. F. Ry. v. McNulty (C. C. A.) 285 F. 97; and Southern Ry. Co. v. Priester (C. C. A.) 289 F. 945.

The accident occurred a little after midnight. The party in' the car consisted of Mr. and Mrs. Burris and a small child on the front seat; Mrs. Burris driving. Mrs. Sellars, the plaintiff’s wife, sat in the rear seat with two small children. After entering the village, they crossed over the railroad tracks from the east to the west side, and turned south and drove along a street running south parallel and alongside the railroad track until they came to Gibson street, where they turned east to again cross the tracks. It was a summer night and there were no curtains on the car. Arriving at the Gibson street crossing, Mrs. Burris,- who is the only survivor, testifies she brought the car to a stop and looked both ways and saw nothing. This evidence is not contradicted. She then drove on at a low speed until she came upon the main line track of the defendant, which was the first of three tracks at that point.

On the west side of the railroad tracks was the usual railway crossing sign, which also bore a highway sign. Mrs. Burris testifies that while they were on the railroad track her husband turned his flashlight on this road sign in order to get the proper direction to continue their journey. As they had already passed this signpost and were on the railroad track, it was necessary for them to turn around toward the south— the direction the train was coming from — • and look back in order to read this sign. As to whether they attually stopped on the track or not, the evidence of Mrs. Burris is the ear made “just a hesitation,” while the engineer testifies that when he first saw the ear, it drove onto the track and came to a stop. In any event, it is clear that the ear when struck was on the track practically at a standstill, while Mrs. Burris and her husband were looking back at the road sign. There can be no question that the driver of the ear was guilty» of such gross negligence that she herself could not recover, irrespective of any of the alleged acts of negligence that the railroad company is charged with. Northern Pac. R. R. Co. v. Freeman, 174 U. S. 379, 19 S. Ct. 763, 43 L. Ed. 1014; B. & O. R. R. Co. v. Fidelity Storage Co., - App. D. C. -, 2 F.(2d) 310.

The only evidence in regard to the conduct of Mrs. Sellars is that of Mrs. Burris, who testifies that she had as good an opportunity from the back seat to observe the approaching train as. she did, but gave no warning; and that of the engineer, who testified that when he first observed the car at a distance of 700 feet, while the train was going at 45 to 50 miles an hour, Mrs. Sellars jumped out of the ear and endeavored to get the children out after her. It is clear that a very short interval of time elapsed between the stopping of the automobile on the track and the accident.

Considering all the facts, a jury might be justified in finding that Mrs. Sellars did not exercise the care for her own safety that the decisions of this court impose upon a passenger in an automobile; or that having observed conditions when the automobile made the first stop before going on the track, and the evidence of the engineer of her efforts to escape, that she did exercise under all the surrounding circumstances the necessary care. This question is immaterial, however, as the evidence may differ on another trial.

The record discloses that the several witnesses who testified for the railroad company as to whether the locomotive headlight was burning, the bell rung, and the whistle blown, were in a position to see and hear, and their evidence is of a positive character, while the witnesses for the plaintiff were not so situated and were not giving attention to these matters; so no issue requiring the submission of these questions to the jury‘was made. Lehigh Valley R. R. Co. v. Mangan (C. C. A.) 278 F. 85. It follows that the railroad company was free from negligence, and its motion for a directed verdict made at the close of the plaintiff’s testimony, and renewed at the close of the whole ease, should have been granted. Northern Pac. R. R. Co. v. Freeman, supra.

The judgment of the lower court is reversed, with instructions to grant a new trial.


author: FARIS, District Judge.

text:
    NATIONAL SURETY CO. v. SALT LAKE COUNTY et al. AMERICAN INDEMNITY CO. v. SAME.
    (Circuit Court of Appeals, Eighth Circuit.
    March 27, 1925.)
    Nos. 6819, 6820.
    1. Subrogation <@=28 — Right unenforceable until whole debt paid.
    Right of subrogation cannot be enforced until whole debt is paid, and until creditor is wholly satisfied there can be no interference with his rights and securities, which might even possibly prejudice or embarrass collection of residue, of his claim.
    2. Counties <g=94( I) — Depositaries <@=8 — Sub-rogation <@=28 — Depositary of county moneys debtor of treasurer, not of county; sureties of such depositary on insolvency of bank not entitled to subrogation until treasurer repaid in full.
    In view of Comp. Laws Utah 1917, § 4500, county treasurer is absolutely liable to the county for repayment- of county moneys in his hands, and, by depositing such money in bapk, the bank becomes debtor of the treasurer, not of the county, and on insolvency of such bank its sureties giving bonds for less than amount deposited have no right to participate in dividends .and collateral securities until bank’s debt to treasurer is wholly paid, as against surety on his official bond, payment of which made the county whole.
    3. Depositaries <@=13 — Sureties of depositary cannot charge negligence of county treasurer on existence of facts due to bank’s, misrepresentation and fraud.
    In controversy between sureties of insolvent depositary of county moneys and the surety on treasurer’s official bond as to right of subrogation to .dividends, negligence of treasurer in taking collateral security cannot be predicated on fact that deposit was greater than treasurer’s books showed, or that eql-lateral securities taken were not worth par, which circumstances were due to fraud and misrepresentation of bank and hence not available to sureties.
    4. Subrogation <@=33(1)— Surety not denied interest accruing during litigation, where, had it paid claim without litigation, same amount of interest would have accrued.*
    Surety on official bond of county treasurer should not be denied interest on amount it was required to pay as against other parties claiming subrogation to funds of insolvent deposi-táry, merely because interest accrued during litigation. caused by its resistance of liability, where, had it paid its obligation without litigation, it would have been entitled to same amount of interest.
    Appeal from the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge.
    Bills in equity by the National Surety Company and by the American Indemnity Company against Salt Lake County and others. Decrees for defendants, and plaintiffs separately appeal.
    Affirmed.
    Arthur E. Moreton, of Salt Lake City, Utah, for appellants.
    John Jensen, of Salt Lake City, Utah (A. M. Cheney, of Salt Lake City, Utah, Frank E. Holman, of Seattle, Wash., and L. R: Martineau, Jr., and Harold M. Stephens, both of Salt Lake City, Utah, on the brief), for appellees.
    Before LEWIS, Circuit Judge, and VAN VALKENBURGH and FARIS, District Judges.

      Rehearing denied June 27, 1925.

   FARIS, District Judge.

These °cases involve the question of appellants’ right to share, by way of subrogation, in certain dividends in the hands of one Jenkins, and accruing from assets, which came into the hands of Jenkins, as receiver of the National City Bank of Salt Lake City, Utah, which failed on the 17th day .of January, 1922; as also the right of appellants to participate in the proceeds of certain securities in the hands of one Groesbeek. The situation and status of the parties, so far as the pleadings and the manner in which, severally, these parties got into court are concerned, are not important; but some of the facts are necessary to an understanding of the case and to its decision.

Groesbeek was the county treasurer of Salt Lake county, Utah, and as such executed and delivered to Salt Lake county, on the 3d day of January, 1921, an official fidelity bond in the sum of $200,000, with the American Surety Company as surety therein. In this bond, as forecast above, Salt Lake county, Utah, was the obligee.

Under the permissive provisions' of section 4500, Comp. Laws of Utah 1917, Groes-beek deposited the money of Salt Lake county, which came to his hands as county treasurer, in the National City Bank, and of such funds, so held by him, there was on deposit, when the bank failed, the sum of $643,094.-29. The statute mentioned may be important to an understanding and disposition of the contentions urged pro and eon by the parties. It reads thus:

“Any public officer having public funds in his custody may deposit the same, or any part thereof, with any bank incorporated under the national -banking act and doing business in this state, or with any bank cr trust company incorporated under the laws of and engaged in business in this state; provided, that he requires such depository to pay interest on all funds so deposited at a rate of not less than 2 per cent, per annum and that he take from such depository collateral security or a good and sufficient surety company bond or a personal bond approved by him and sufficient in amount to fully protect such funds; provided, that the cost of any official bonds required to be furnished by any public treasurer shall be paid out of funds in the respective treasuries; provided, that the interest received under the provisions of this title by the state treasurer shall be placed in the general fund.” Section 4500, Comp. Stats. 1917.

Pursuant to the provisions and conditions of the above section,, Groesbeek took from the National City Bank a surety bond, with the bank as principal and the appellant National Surety Company as surety, in the sum of $125,000, and a like bond from the Fidelity & Deposit Company in the sum of $75,-000, as also a similar bond of the Massachusetts Bonding & Insurance Company in the sum of $25,000; in each of. which bonds, “Groesbeek, treasurer of Salt Lake county, Utah,” was the obligee. The bank also put up with Groesbeek, as collateral security to further secure the paymént by the bank of the money deposited therein by him as such treasurer, $360,000, par value, of the bonds of the Crystal Lake Farms Company.

The bond of the Fidelity & Deposit Company contained an express provision that on the payment by it of the sum of $75,000, the amount for which it became liable as a surer ty, it should receive dividends, pro rata with other creditors, out of the assets of the bank. Such dividends it has gotten and is now getting, pursuant to an assignment to it by •Groesbeek, and it is not complaining here. The bond executed by appellant National Surety Company had no express provision as to subrogation. The Massachusetts Bonding & Insurance Company for some reason, not necessary to state, even if it were known, does not complain here.

Salt Lake county, has been paid in full thus: By National Surety Company, appellant, $125,000; by Massachusetts Bonding & Insurance Company, $25,000; by Fidelity & Deposit Company, $75,000 (all paid to Groesbeek for the benefit of Salt Lake county) 1 hy the American Surety Company, $200,000 (paid to Salt Lake county, obligee therein, on the fidelity bond of Groesbeek); by the sum of $170,428.28, being a 30 per cent, dividend, paid to the county by the bank’s receiver; and by the sum of $47,666.-01, out of a further dividend of $56,809.42, in the hands of the receiver, and now appor-tionable. The county’s right to this sum of $47,666.01, out of the dividend now appor-tionable, is, it is said in the brief of appellant National Surety Company, conceded. So there are left in dispute here only the balance of this dividend, to wit, $9,143.41, plus participation in future dividends, if any, and whatever sum may be derived from the sale of the Crystal Lake Farms bonds, the par value of which is $360,000; actual value, neither clear nor important. These bonds were assigned by Groesbeek to the American Surety Company, between whom and appellant National Surety Company the contest here is waged. The right of American Indemnity Company, appellant in case No. 6820, is a derivative one, dependent wholly upon recovery by the National Surety Company; so, no further reference need be made as to it, or as to its appeal till the end of the discussion.

The single question is whether, upon the facts stated, the law and the equities give these remaining dividends and the proceeds of the Crystal Lake Farms bonds, after the county has been paid in full, to the appellant National Surety Company or to the ap-pellee, American Surety Company. The learned trial court held that the American Surety Company is entitled to all funds derived and to be derived from such dividends and bonds, till it shall have been paid the sum of $223,362.15, the total sum paid by it on its fidelity bond, including interest, and with interest on the basic sum, at the rate of 8 per cent., from February 29, 1924, and that the appellant National Surety Company shall be postponed in participation in such funds till the appellee American Surety •Company, shall have been paid in full.

The correctness of this decree is assailed by appellant, and such correctness of it is in various allegations assigned as error, for that it is contrary to law and equity.

It is conceded by counsel for appellee that the money which Groesbeek deposited in the bank was held by him, in trust, for Salt Lake county; but it is insisted by appellee that the situation, and the conditions of the several bonds and the legal obligations created thereby, had the ultimate effect to make Groesbeek the debtor of the county, and to make the bank the debtor of Groesbeek. In short, that when Salt Lake county turned 'over to Groesbeek the sum of $643,000 (in round sum) Groesbeek became indebted to the county in that sum, and when Groesbeek deposited this same $643,000 in the bank, the latter became indebted to Groesbeek in that sum. From this premise it is insisted that it follows that Groesbeek, having taken some precaution to secure the payment back to him by the bank of this $643,000, in that he required his debtor to give a bond with the National Surety Company, and others as sureties, and to put up as further security bonds of the Crystal Lake Farms Company, is entitled to be paid in full, either by the bank, from dividends out of its wrecked assets, from the bonds of the depositary sureties, or from the collateral securities in his hands, or, if so much shall be required, from all these several sources. And that when Groesbeek shall have been paid in full by the bank, or its sureties (the appellant, and its associates on the depositary bonds), then Groesbeek will owe the appellee American Surety Company sueh sum as it shall have been compelled to pay for him as a guarantor, or surety for his fidelity. Appellants, in effect, contend contra.

The correctness of this insistence seems plausible if not indisputable. But the contention is strenuously made by appellants that the county, the cestui que trust, having been paid in full, what remains should be equally divided between those who thus made the county whole. We think this contention in a manner begs the question, for that it leaves out of consideration the conceded fact that appellant National Surety Company, and its associates, the so-called depositary sureties, did not pay by $200,000 all that the bank owed to Groesbeek, or that Groesbeek owed to the county, though eoneededly they did pay the full sums of their several obligations. The appellee American Surety Company, under its direct obligation to the county, paid the county the sum of $200,000, with interest, and the dividends, and the Crystal Lake Farms bonds, now here in dispute, are to the extent of $200,000, relieved from use to that end.

The rule applicable to this situation seems to be fairly well' settled. That rule is that, “The right of subrogation cannot be enforced until the whole debt is paid. And until the creditor b.e wholly satisfied, there ought and can be no interference with his rights or his securities, which might, even by bare possibility, prejudice or embarrass him in any way in the collection of the residue of his claim.” New Jersey, etc., R. R. v. Wortendyke, 27 N. J. Eq. 658.

To the same effect is the case of Knaffl v. Knoxville, etc., Co., 133 Tenn. 655, 182 S. W. 232, Ann. Cas. 1917C, 1181, wherein it is said: “A surety is not entitled to subrogation until the debt is paid in full, the creditor in the meantime left in control of the debt, and all the remedies for collection. A pro tanto assignment or subrogation will not. be allowed. The reason is that subrogation is a creature of equity and will never be allowed to the prejudice of the creditor. Harlan v. Sweeny, 1 Lea, 686; Gillian v. Essel-man, 5 Sneed, 86; 37 Cyc. 408.”

The confusion in the case at bar arises from a mistaken view as to the identity of the actual creditor of the bank, as also the identity of the company, the money of which, in part made this creditor whole. The case of American Surety Co. v. Bank (C. C. A.) 294 F. 609, largely relied on by appellant, furnishes no comfort to the contention made. The rule deducible from the eases is that till the creditor is paid in full, no right of subrogation exists in favor of sureties who pay a part of the debt.- In short, the creditor may insist on getting his full pound of flesh before others are allowed to sit at the banquet board.

If the bond of appellant National Surety Company had been made to the county of Salt Lake, as obligee, or if section 4500, supra, of the statutes of Utah, had required it so to be made, or perhaps, even if the above section had made it absolutely obligatory upon Groesbeek to put the money of the county in some bank, there might be some force in the contention here urged. But the policy of the law of Utah seems, on casual view, to render the , county treasurer absolutely liable to the county for the repayment to the county of all money belonging thereto, which may come to his hands as such treasurer. He is merely permitted to deposit sueh money in a bank, but without, by so doing, being able to shift the primary obligation for repayment from himself directly to the bank. We cannot see that the fact, that in some aspects the money so deposited is, by the bank, heíd as a trust fund for- the county, has the effect to make the county, upon all views, the creditor of the bank. The treasurer is yet the debtor of the county, and the bank is the debtor of the treasurer.

We are not convinced that there is any force in the contention that the treasurer was negligent in taking the collateral security mentioned in the record. From an examination of the record it does not seem to be proven whether this collateral was or was not, when taken worth less than par. If it was worth par, and the evidence in the record is too indefinite to determine whether it was or not, then the sum of the so-called depositary bonds and this collateral security so nearly equaled the amount which the treasurer ought to have had on deposit, as to preclude the notion of negligence in failing to take sufficient security. If the sum so on deposit was more by-$50,000 than the books of the treasurer showed, and this seems to be conceded, this difference was clearly due to the fraud of the bank whieh was the principal of the appellant National Surety Company on the depositary bond.

Concretely, this contention of negligence is bottomed upon the views: (a) That the amount on deposit when the bank failed exceeded the sum total of the security held by Groesbeck from the bank, and this was not in compliance with the statute quoted; and (b) that a part of this security, namely, the bonds of the Crystal Lake Farms Company, were not worth par, and again Groesbeck violated the statute. But while the evidence is not clear touching whether or not these bonds were worth par, yet it makes no difference in the case. This for the reason that the cashier of the bank assured Groesbeck that these bonds were worth par, and on this assurance he took them, and so the alleged negligence of Groesbeck was induced by the misrepresentations of appellant’s principal. Again, whatever difference exists between the sum of the deposit and the sum total of the security held by Groesbeck arises from the fraudulent conversion by the bank of $50,000, whieh had the effect to make the deposit $50,000 more than Groesbeck’s books showed it to be. This difference was due to the bank’s fraudulent failure to pay the above sum on orders from Groesbeck, whieh sum it ought to have paid and which Groes-beek believed it had paid. Obviously, the bank cannot complain of its own fraud, nor can its surety, for ordinarily “a surety cannot be placed in' a more favorable position than the principal.” 37 Cye. 429.

Lastly, it is contended that appellee American Surety Company, ought not to have been allowed interest in the sum of $23,362.12, whieh accrued pending its resistance by litigation of its liability to pay at all. Abstractly, the contention is interesting and seems to smack of justice, at least, of that variety called in literature poetical justice. But concretely, this casual view is found not to be well taken in point of natural justice and equity and in view of the situation existing; for, while the appellee was resisting its liability to pay the amount of its fidelity bond, the matter of the winding up of the wrecked bank’s affairs was also pending. Only shortly has enough been gotten from this wreck to pay out of dividends the balance due the county. Save the sum of about $9,000, around whieh, in part, the instant controversy rages, no fund has yet appeared out of whieh either party disputing here could have gotten one .cent.- So, plainly, the situation falls into the category denominated, in homely vernacular, “six of one and half a dozen of the other.” In other words, if interest had not accrued while the appellee was resisting by litigation its liability to pay its bond, the identical interest here involved would have accrued from the time of any voluntary payment to the date of the decree below. So, the fact of re-calcitrancy, necessitating litigation, has in no wise affected the matter of interest, or the amount thereof. Interest would have been due the appellee in either event. Therefore, in the final analysis, this contention is but a corollary of the question already discussed and ruled against the appellants.

We are constrained to conclude that the decrees of the trial court were right as to both appellants, and that such decrees ought to be affirmed and so we order.

Case No. 6819 affirmed.

Case No. 6820 affirmed.