text:
    William REVARD, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    December 2, 1924.)
    No. 6398.
    In. Error to the District Court of the United States for the Western District of Oklahoma.
    William Robert Burns and William Pfeiffer,, both of Oklahoma City, Okl., for plaintiff in error.
    James A. Ingraham, Asst. U. S. Atty.,. of Oklahoma City, Okl.
   PER CURIAM.

Writ of error dismissed, without' costs to either party in this court,, on motion of defendant in error, under rule 23.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    F. J. RHEINER, Appellant, v. W. I. BIDDLE, as Warden, etc.
    (Circuit Court of Apppeals, Eighth Circuit.
    January 5, 1925.)
    No. 6920.
    Appeal from the District Court of the United States for the District of Kansas.
    W. D. Dove, of Uvalde, Tex., for appellant.
    Al F. Williams, U. S. Atty., and Alton H. Skinner, Asst. U. S. Atty., both of Topeka, Kan., for ap-pellee.
   PER CURIAM.

Appeal docketed and dismissed, without costs to either party in this court, on motion of appellee, under rule 16.


text:
    Mrs. Josephine RIMA et al., Plaintiffs in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    March 16, 1925.)
    No. 6992.
    In Error to the District Court of the United States for the Western District of Missouri.
    John S. Bates, of Kansas City, Mo., for plaintiffs in error.
    H. L. Donnelly, Asst. U. S. Atty., of Kansas City, Mo.
   PER CURIAM.

Writ of error docketed and dismissed, without costs to either party in this court, on motion of defendant in error, under rule 16.


text:
    Armond H. ROEMER, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    January 26, 1925.)
    No. 6796.
    In Error to the District Court of the United States for the District of Nebraska.
    Earl H. Bowles, of Independence, Mo., and Hugh A. Myers, of Omaha, Neb., for plaintiff in error.
    James C. Kinsler, U. S. Atty., of Omaha, Neb.
   PER CURIAM.

Writ of error dismissed, without costs to either party in this court, on motion of defendant in error.


text:
    Maurice ROOD, Plaintiff in Error, v. UNITED STATES, Defendant in Error.
    (Circuit Court of Appeals, Fourth Circuit.
    April 16, 1925.)
    No. 2373.
    In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston.
    J. Raymond Gordon, of Charleston, W. Va., for plaintiff in error.
    B. J. Pettigrew, Asst. U. S. Atty., of Charleston, W. Va.
   PER CURIAM.

Order docketing and dismissing case under rule 16 filed.


text:
    Jesse C. RUMSEY, Appellant, v. W. I. BIDDLE, Warden, etc.
    (Circuit Court of Appeals, Eighth Circuit.
    March 17, 1925.)
    No. 6626.
    Appeal from the District Court of the United States for the District of Kansas.
    For opinion below, see 291 F. 671.
    Robert K. Ryland and Paul R. Stinson, both of Kansas City, Mo., for appellant.
    Alton H. Skinner, Asst. U. S. Atty., of Topeka, Kan., for appellee.
   PER CURIAM.

Appeal dismissed, without prejudice and without costs to either party in this court, per stipulation of parties.


text:
    Sam RUSSO et al., Plaintiffs in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    December 10, 1924.)
    No. 6891.
    In Error to the District Court of the United States for the Eastern District of Missouri.
    A. Canzoneri, of St. Louis, Mo., for plaintiffs in error.
    Carroll W. Harlan, Asst. U. S. Atty., of St. Louis, Mo.
   PER CURIAM.

Writ of error docketed and dismissed, without costs to either party in this court, per stipulation of parties.


text:
    Thomas J. RYAN, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    April 28, 1925.)
    No. 7032.
    In Error to the District Court of the United States for the Western District of Arkansas.
    Paul Jones and Paul Jones, Jr., both of Tex-arkana, Ark., and W. T. Williams, of Austin, Tex., for plaintiff in error.
    S. S. Langley, U. S. Atty., of Fort Smith, Ark.
   PER CURIAM.

Writ of error docketed and dismissed, without costs to either party in this court, on motion of plaintiff in error and stipulation of parties.


author: STONE, Circuit Judge.

text:
    SCHOOL DISTRICT NO. 1, CITY OF PLATTSMOUTH, NEBRASKA, Plaintiff in Error, v. Margaret E. POMERENE, Adminis-tratrix of the Estate of Louis W. Pomerene, Deceased, Defendant in Error.
    (Circuit Court of Appeals, Eighth Circuit.
    April 13, 1925.)
    No. 6699.
    In Error to the District Court of the United States for the District of Nebraska;
    Thomas C. Munger, Judge. W. T. Thompson, of Lincoln, Neb., and O. A. Rawls, of Plattsmouth, Neb., for plaintiff in error.
    Charles F. McLaughlin, of Omaha, Neb., and Lloyd Dort, of Lincoln, Neb. (Kennedy, Holland, De Lecy & McLaughlin, of Omaha, Neb., Dort, Cain & Witte, of Lincoln, Neb., and J. C. Dort, of Pawnee City, Neb., on the brief), for defendant in error.
    Before STONE and LEWIS, Circuit Judges, and SCOTT, District Judge.
   STONE, Circuit Judge.

This is an action by a contractor against a school district for money due for installation of a heating plant. The facts are fully stated in the opinion of Judge Lewis upon the previous writ of error to this court. 288 F. 145. The trial court directed a verdict for the contractor, on the ground that the issues and evidence at the second trial were substantially those at the former trial and that the case was ruled by the opinion of Judge Lewis. From a judgment on this verdict, the District sues this writ of error. After remand on the previous writ of error, defendant endeavored to amend its answer to avoid the effect of the above opinion, and determination. Counsel urge strenuously that they have been successful in this attempt, and that the retrial was upon different issues and evidence than upon the first trial, and that they are now without the influence of the prior view and action of this court. We have carefully examined the entire record bearing upon the matter, and are unable to approve this position. There is no substantial difference in the present issues and evidence and those upon the former trial and writ of error. The reasoning and rule of the opinion of Judge Lewis on the previous writ of error are fully approved and govern the present case. Objection is made, also, to certain rulings excluding evidence offered by the district. The assignment of errors does not properly indicate or identify the evidence thus ruled on, and therefore cannot be examined by us. Rule 11, this court. The judgment is affirmed. •


text:
    Lydia SHREWSBURY, Plaintiff in Error, v. UNITED STATES, Defendant in Error.
    (Circuit Court of Appeals, Fourth Circuit.
    April 9, 1920.)
    No. 2359.
    In Error to the District Court of the United States for the Northern District of West Virginia, .at Wheeling.
    O’Brien & O’Brien, of Wheeling, W. Va., for plaintiff in error.
    T. A. Brown, U. S. Atty., and T. M. Melntire, Sp. Asst. U. S. Atty., both of Parkersburg, W. Va.
   PER CURIAM.

.Case dismissed, under rule 20, per agreement of attorneys.


text:
    Russell SMITH, as Receiver, etc., Appellant, v. ROYAL INDEMNITY CO. et al.
    (Circuit Court of Appeals, Eighth Circuit.
    November 10, 1924.)
    No. 6676.
    Appeal from the District Court of the United States for the District of Minnesota.
    Jay W. Smith, of Minneapolis, Minn., for appellant.
    Stan D. Donnelly and Warren Newcombe, of St. Paul, Minn., for appellees.
   PER CURIAM.

Appeal dismissed with prejudice to appellant, without costs to either party in this court, per stipulation of parties.


text:
    SOUTHERN RAILWAY COMPANY, Plaintiff in Error, v. J. H. GRIMES, Administrator of Lowe McNabb, Defendant in Error.
    (Circuit Court of Appeals, Sixth Circuit.
    June 10, 1925.)
    No. 4328.
    In Error to the District Court of the United States for the Eastern District of Tennessee; Xenophon Hicks, Judge.
    Charles H. Smith, of Knoxville, Tenn., for plaintiff in error.
    H. G. Fowler, of Knoxville, Tenn. (Fowler & Fowler, of Knoxville, Tenn., on the brief), for defendant in error.
    Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.
   PER CURIAM.

We are not able to say that there was no evidence from which the jury had the right to infer that the engineer should, in the exercise of due care, have given some warning to McNabb. We observe that at what may have been a distance of 100 or 150 feet and over a time interval of two or three seconds it was necessarily apparent to the engineer that all the others of the section gang, including the one 3 feet from McNabb, had jumped back out of the way, but that McNabb continued to pay no attention and was apparently oblivious, and was therefore apparently in peril. While the time involved was very short, Mc-Nabb had to move only a few inches to be safe, and it may be that there was time enough for a whistle blast to “galvanize him into action.” The circumstances are unique. There is no controversy about the general legal rules. Applying them to these particular tacts, we cannot reverse the judgment on the sole ground now urged, and it is affirmed.


text:
    Agnes SPAETH et al., Appellants, v. John H. PAUL.
    (Circuit Court of Appeals, Eighth Circuit.
    March 24, 1925.)
    No. 6752.
    Appeal from the -District Court of the United States for the District of Wyoming.
    William C. Kin-kead, C. R. Ellery, and H. B. Henderson, Jr., all of Cheyenne, Wyo., for appellants.
    E. Paul Bacheller, of Casper, Wyo., and Harold I. Bacheller, of Lusk, Wyo., for appellee.
   PER CURIAM.

Appeal dismissed, without costs to either party in this court, per stipulation of parties.


text:
    Dora TALBERT, Plaintiff in Error, v. UNITED STATES, Defendant in Error.
    (Circuit Court of Appeals, Fourth Circuit.
    April 16, 1925.)
    No. 2374.
    In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston.
    J. Raymond Gordon, of Charleston, W. Va., for plaintiff in error.
    B. J. Pettigrew, Asst. U. S. Atty., of Charleston, W. Va.
   PER CURIAM.

Order docketing and dismissing case under rule 16 filed.


text:
    Jordan W. TAYLOR, Appellant, v. L. C. MASSEY, Sheriff of Kanawha County, West Virginia, Appellee.
    (Circuit Court of Appeals, Fourth Circuit.
    April 16, 1925.)
    No. 2376.
    Appeal from the District Court of the United States for the Southern District of West Virginia, at Charleston.
    J. Raymond Gordon, of Charleston, W. Va., for appellant.
    B. J. Pet-tigrew, Asst. U. S. Atty., of Charleston, W. Va., for appellee.
   PER CURIAM.

Order docketing and dismissing cause under rule 16 filed.


text:
    TUCKER MANUFACTURING CO., a Copartnership, etc., Appellant, v. UNIVERSAL MANUFACTURING CO. et al.
    (Circuit Court of Appeals, Eighth Circuit.
    April 4, 1925.)
    No. 6941.
    Appeal from the District Court of the United States for the District of Nebraska.
    Percy S. Webster, of Stockton, Cal.,' and C. F. Reavis and M. V. Beghtol, both of Lincoln, Neb., for appellant.
    M. H. Wittstruck, of Lincoln, Neb., for appellees.
   PER CURIAM.

Appeal dismissed without prejudice, per stipulation of parties, etc.


text:
    UNITED STATES, Plaintiff in Error, v. NATIONAL EXCHANGE BANK OF BALTIMORE, MARYLAND, a Corporation, Defendant in, Error.
    (Circuit Court of Appeals, Fourth Circuit.
    December 1, 1924.)
    No. 2203.
    In Error to the District Court of the United States for the District of Maryland, at Baltimore.
    Judgment of District Court affirmed. 1 F.(2d) 888.
   PER CURIAM.

Order allowing writ of error from Supreme Court filed.


text:
    UNITED STATES ex rel. Mike WEISMAN, Appellant, v. Earl BROWN, as Sheriff, etc., et al.
    (Circuit Court of Appeals, Eighth Circuit.
    December 10, 1924.)
    No. 6638.
    Appeal from the District Court of the United States for the District of Minnesota.
    Frank W. Booth, of Minneapolis, Minn., for appellant.
    Floyd B. Olson and William C. Larson, both of Minneapolis, Minn., for appellees.
   PER CURIAM.

Appeal dismissed, with costs, on motion of appellees, under rule 24.


text:
    UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION and J. H. Winchester & Co., Plaintiffs in Error (Defendants Below), v. Ewald LATCHING, Defendant in Error (Plaintiff Below).
    (Circuit Court of Appeals, Second Circuit.
    February 20, 1925.)
    No. 253.
    In Error to the District Court of the United States for the Southern District of New York. Writ of error to judgment on the verdict of a jury entered in the District Court for the Southern District of New York.
    William Hayward, U. S. Atty., of New York City (J. Ralph Hilton, of New York City, of counsel), for plaintiff in error U. S. Shipping Board Emergency Fleet Corporation.
    Nathan A. Smyth, of New York City, for plaintiff in error J. H. Winchester Co. Edgar J. Treacy, of New York City, for defendant in error.
    Before HOUGH, MANTON, and HAND, Circuit' Judges.
   PER CURIAM.

A majority of this court are of opinion that this judgment should be affirmed, with costs; and it is so ordered.


text:
    Thomas VENTOLA et al., Plaintiffs in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    March 16, 1925.)
    No. 6991.
    In Error to the District Court of the United States for the Western District of Missouri.'
    Joseph McCoy, of Kansas City, Mo., for plaintiff in error.
    H. L. Donnelly, Asst. U. S. Atty., of Kansas City, Mo.
   PER CURIAM.

Writ of error docketed and

dismissed, without costs to either party in this court, on motion of defendant in error, under rule 16.


text:
    Milos VOJNOVIC, Appellant, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    January 24, 1925.)
    No. 6944.
    Appeal from the District Court of the United States for the Eastern District of Missouri.
    Willis H. Clark, of St. Louis, Mo., for appellant.
    Carroll W. Harlan, Asst. U. S. Atty., of St. Louis, Mo.
   PER CURIAM.

Appeal docketed and dismissed, without costs to either party in this court, on motion of appellee, under rule 16.


text:
    Sol WELLS, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    December 15, 1924.)
    No. 6898.
    In Error to the District Court of the United States for the Western District of Oklahoma.
    H. C. Hargis, of Pawhuska, Old., for plaintiff in error.
    J. A. Ingraham, Asst. U. S. Atty., of Oklahoma City, Okl.
   PER CURIAM.

Writ of error docketed and dismissed, without costs to either party in this court, on motion of defendant in error, under rule 16.


text:
    Kenneth C. WEST, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appels, Eighth Circuit.
    March 20, 1925.)
    No. 7003.
    In Error to the District Court of the United States for the Southern District of Iowa.
    S. B. Allen, of Des Moines, Iowa, for plaintiff in error.
    Ray C. Fountain, Asst. U. S. Atty., of Des Moines, Iowa.
   PER CURIAM.

Writ of error docketed and dismissed, without costs to either party in this court, on motion of defendant in error, under rule 16.


text:
    R. H. YOUNG, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    January 6, 1925.)
    No. 6684.
    In Error to the District Court of the United States for the Western District of Oklahoma.
    B. C. Trice, of Pawhuska, Okl., for plaintiff in error.
    W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst. U. S. Atty., both of Oklahoma City, Okl.
   PER CURIAM.

Writ of error dismissed, without costs to either party in this court, on motion of defendant in error, under rule 24.


text:
    Willard YOUNG, Plaintiff in Error, v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    January 6, 1925.)
    No. 6686.
    In Error to the District Court of the United States for the Western District of Oklahoma.
    B. C. Trice, of Pawhuska, Okl., for plaintiff in error.
    W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst., U. S. Atty., both of Oklahoma City, Okl.
   PER CURIAM.

Writ of error dismissed, without costs to either party in this court, on motion of defendant in error, under rule 24.


author: FOSTER, Circuit Judge.

text:
    BENNETT v. UNITED STATES.
    No. 5769.
    Circuit Court of Appeals, Fifth Circuit.
    May 27, 1931.
    See, also, 36 F.(2d) 475.
    Bart A. Riley and Vincent C. Giblin, both of Miami, Fla. (W. E. Walsh, of Miami, Fla., on the brief), for appellant.
    W. P. Hughes, U. S. Atty., of Jacksonville, Fla., and S. R. Rush and John S. Pratt, Sp. Assts. to Atty. Gen.
    Before FOSTER, Circuit Judge, and HUTCHESON and SIBLEY, District Judges.
   FOSTER, Circuit Judge.

Appellant, Frank A. Bennett, was convicted on nine counts of an indictment charging the unlawful mailing of certain letters in furtherance of a fraudulent seheme. ■ Two other persons were named in the indictment, one of whom was acquitted and the other has not appealed. Error is assigned to the denial of a motion for a directed verdict at the close of the evidence.

It is not disputed that the letters were mailed as charged, but good faith is relied upon. As to the fraudulent character of the scheme, there was evidence tending to show the following state of facts: Appellant, who was then known as David Kramer Grate, which name was later changed by a judgment of' court to Frank Andrew Bennett, purchased from one Hardesty a tract of land known as the John Bunch grant in Volusia county, Fla., for the price of $200,000. The tract contained some 1,285 acres and at that time it was assessed for taxation at $10,000. He was credited with $10;000 as commission, and he paid $12,000 in cash. The remaining $178,000 was represented by a first mortgage payable in ten annual installments* In May, 1925, a company known as the Dixie Bay Shore Realty Company was incorporated with an authorized capital of $3,000,000, $1,-500,000 common stock and an equal amount of preferred stock. The real estate acquired by Bennett from Hardesty was transferred to this company. The ostensible purchase price was $907,000 and the entire issue of common stock. Of this $300,000 was to be paid to Bennett in installments of $50,000 per month, the company assumed Bennett’s mortgage to Hardesty of $178,000, and in addition executed a second mortgage for $429,000. The entire common stock, which had the sole voting power of the company, was transferred to Bennett and his associates. Later on, two other corporations were created, one the F. A. Bennett Company, Inc., and the other the F. A. Bennett, Inc., the only difference in name being the-word “company.” A contract was made with the first named to sell the preferred stock of the Dixie Company on a commission of 20 per cent, and with the second company to sell the lots on commission of 10 per cent. These three companies were dominated by Bennett. Bennett also transferred to the Dixie Company another piece of land adjacent to the Bunch tract, containing 370 acres, at $700 per acre. The property was divided into 6,-000 lots and was put upon the market at prices varying from $1,000 to $2,000 per lot. The preferred stock was offered to the pub-lio at pax, and, in order to induce the purchase, premiums of from 25 to 50 per cent, in common stock and real estate certificates, equal to the amount purchased, which could be applied on the purchase of lots, were offered. Representations were made that 20 per cent, of the sales price of lots would be set aside for that purpose, and that the preferred stoek would be redeemed at 105, with cum-ulated interest of 8 per cent, per annum, and also that if any stockholder became dissatisfied with his investment, the company would refund his money. Representations were made that the purchase price of the property was in excess of $1,000,000. The fact that it was burdened with mortgages aggregating $507,000 was not disclosed. In order to sell the lots, an elaborate plat was made showing streets and sidewalks, bridle paths, tennis courts, a golf course, a yacht basin and pier, and other improvements, and representations were made that the tract was being developed as a subdivision, to be called Or-mond-on-the-Bay; that the work of development was going forward, and that it would have all the improvements necessary to a city, the lot purchasers not to have to pay for any improvements. Some work of a superficial character was done, such as dredging a canal and filling some of the lots, but the improvements never progressed to a point where they had any practical value. While this cost approximately $90,000, the testimony of the engineer in charge was to the effect that an expenditure of a minimum of $1,800,000 would be necessary in order to complete the improvements designated, and three years would be required to do the work. Even with the work done, the land is wild and swampy and of little or no value for any purpose. This was known to Bennett at the'time representations were being made to the public. The Florida boom was in full bloom at that time and the preferred stock was over subscribed. A number of lots were sold. Some of the oversubscriptions were returned, but no dissatisfied stockholder received his money back, although a number demanded it.

In round figures the Dixie Company received from the public $1,229,000, for the sale of lots and preferred stoek. Of this Bennett, in addition to $765,000 of the common stock and about $100,000 of preferred stoek, received $592,300. The two Bennett companies received $352,800, leaving approximately $374,000 to retire a mortgage of $178,-000, with interest, to pay salaries and other expenses and to make promised improvements on the land that would cost upwards of $2,-000,000, to say nothing of the fund of 20 per eent. that was to be set aside to retire the preferred stoek.

It is evident that the publie got practically nothing for its investment and was induced to' buy both stoek and lots by grossly false representations as to the cost of the property and its present value. The sale from Bennett to the Dixie Company was really • a simulation, and the value of the Bunch ti*act could not be fixed higher than $200,000. with the value of the 370 acres at approximately the same per acre, not over $60,000. It is also evident that the representations as to the improvements to be made were knowingly false. It is also evident that Bennett knew there was no probability of creating a fund to retire the preferred stock or to return the money to dissatisfied investors. There are other facts appearing in the record tending to show other fraudulent representations, but wé need not review them. We entertain no doubt that the jury was justified in concluding that the scheme was intended to be fraudulent, was in fact fraudulent, and that the investors were deceived by false representations to induce them to part with their money.

Other errors are assigned, but they axe without merit.

The record presents no reversible error.

Affirmed.


author: WOODROUGH, District Judge. GARDNER, Circuit Judge

text:
    UNITED STATES FIDELITY & GUARANTY CO. v. McCARTHY.
    No. 8903.
    Circuit Court of Appeals, Eighth Circuit.
    May 7, 1931.
    Rehearing Denied June 18, 1931.

      GARDNER, Circuit Judge, dissenting.
    James C. Davis, of Des Moines, Iowa (Jesse A. Miller, of Des Moines, Iowa, on the brief), for appellant.
    W. B. Sloan, of Des Moines, Iowa (W. C. Strock and C. S. Bradshaw, both of Des Moines, Iowa, on the brief), for appellee.
    Before STONE and GARDNER, Circuit Judges, and WOODROUGH, District Judge.
   WOODROUGH, District Judge.

This suit was brought by Dr. Wilton McCarthy, a surgeon of Des Moines, for recovery upon an accident insurance policy issued to him by the United States Fidelity & Guaranty Company. The doctor sustained accidental injuries on the 6th day of December, 1922, and claims that the injuries so received resulted in continuous total disability. The insuring company admits the issuance of the policy, that it was in full force on the 6th day of December, 1922, and that the doctor did sustain accidental injuries on that date, but it denies continuous total disability. It paid him the weekly indemnity specified for total disability for the first year after the accident. It then refused to pay further, and the doctor sued and recovered as for total ", disability for the period from December 6, 1923, to October 22, 1925. The company • paid the judgment. Thereafter the doctor brought this suit claiming further continuous total disability from October 22,1925, up to November 7,1929. The injury occasioned by the accident was to the doctor’s right hand, and it appearing on the trial beyond dispute that the hand was no better than it had been, the doctor contended that the issue as to whether he was totally disabled was the same issue that had been tried between himself and the company in the first suit, and that it was settled in his favor by that judgment. He aJso: contended that on the whole evidence every fact essential to his recovery had been so established that reasonable minds could not differ as to his right to recover. The trial court sustained his motion to direct a verdict for him -on these grounds, and the company appealed from, the judgment on the directed verdict. On the appeal, 33 F.(2d) 7, 12, 70 A. L. R. 1447, this court held that it was established by the judgment in the first suit that the doctor, “during the period of time for which indemnity was sought, and at the termination thereof, did, by reason of the injury to his hand, suffer total disability under the terms of the policy; that is, was unable to perform any and every duty pertaining to his occupation as a surgeon.” It held further, however, that “the ultimate fact in the previous suit as to disability was total disability during the period for which indemnity was sought. The ultimate fact here is total disability for an entirely separate and definite period of time.- That question was not in issue, and could not have been litigated in the former action. Each case stands upon its own bottom.” This court then turned to the question .of the evidence on the matter of total disability and held that it did not justify a directed verdict for either the doctor or the company, but presented “peculiarly fact questions for a jury.” The case was therefore reversed and tried again and the question whether there was total disability during the period covered by the suit was submitted to the jury. There was a verdict in the doctor’s favor, and from the judgment thereon the company prosecutes this appeal presenting assignments of error too numerous to discuss in detail.

Aside from the loss of one of his eyes in another accident, and the injury to his right hand involved in this ease, the doctor enjoys good health so that the payment to him of $250 a week is, and apparently will be, a much greater burden on the company than if he had been killed or had suffered loss, of limbs. The company in its brief before us computes that it may have to pay the doctor some $280,000 if we sustain the judgment and the doctor lives out his expectancy. But on this phase of the ease we feel bound by what this court said on the former appeal. It “is of no moment * * * and is not material in this ease. * * * It [the company] so wrote the contract.”

Neither are any of the assignments relating to the trial court’s refusal to take the ease away from the jury to be sustained. There is no claim that there was any new evidence on the second trial of a character to justify the trial court in departing from the explicit holding of this court that the questions were fact questions for a jury. There was no dispute about the issuance of the policy by the company nor that the policy was in full force on December 6, 1922, nor that the doctor sustained accidental injury within the coverage of the policy on that date, nor that the injuries so sustained occasioned some disability. There was no dispute that the copy of the policy and the application therefor attached to the doctor’s petition as an exhibit were true copies, nor that notice had been given. Nor was there any substantial dispute as to the condition of the doctor’s right hand occasioned by the accident. The only question left in the case after the first appeal to this court was as to the extent of the disability during the particular period, and whether it was continuously total within the meaning of the provisions of the policy relied on.

Those the doctor relies on are as follows: His application (expressly made a part of the policy) states: “I am with self — surgeon (only)”: “My occupation is surgical practice” : “The duties of my occupation are fully described as follows: Surgeon (only),” and the policy says “United States Fidelity So Guaranty Company * * * does hereby insure Wilton McCarthy * * * by occupation Surgical Practice * * * f0r a weekly accident indemnity of two hundred fifty dollars, * * * Schedule II. Total loss of time. Or, if such injury * * * shall cause continuous total disability, and prevent the insured from date of accident, from performing any and every • duty pertaining to his occupation, the Company will pay him the weekly accident indemnity above specified, for the period of such disability.”

On the trial from which this appeal is taken the doctor swore as to the direct result of his accidental injury that there was no sensation left in the major part of his right hand, and only the little finger and half of the palm of the hand were really useful so that he could not properly diagnose by two handed palpation nor use the instruments whose use is necessary in surgical practice. That although he had submitted to five operations and long courses of treatment in the attempt to recover the use of the hand, and to fit himself for surgical practice, the hand had become no better, but worse. He described what his occupation in “surgical practice,” “by himself,” “surgeon (only),” had been for more than nineteen years be-' fore the accidental injury, and declared that he was and had been rendered totally unable to go on with it. He said that he understood too well what the responsibilities of a surgeon are to go back to his office and take his place there. That “you have to deal with life” and he felt all the time, knowing his physical incompeteney, that it would be criminal and malpractice for him to attempt to practice surgery. Five of his professional friends corroborated him in practically all of his testimony, and undoubtedly' a prima facie ease was made.

The theory of the defense is very greatly elaborated by learned and able counsel for the company in its pleadings, testimony, numerous requests for instructions and requests for special findings, assignments of error and forceful arguments. A principal complaint here is that the theory of defense was not fairly submitted to the jury by the trial court.

* Admittedly it had to he boiled” down for submission to a jury. So analyzing the mass to define the theory we find that it proceeds from the obvious fact that the performance of the duties of every professional occupation includes and presupposes in the professional the exercise of many trained and developed powers. Conspicuously every such occupation includes the duties skillfully to observe, to estimate, to apprehend and to prepare for conditions and to consult with others about them and to resolve upon them preceding, accompanying and following professional action. And in all the professions there are specialists. There are theologians who do not preach, lawyers who try no eases, doctors who administer no potions and surgeons who never incise. Observing that, surgical practice in no wise differs from all professional occupations in this general aspect, defendant centered upon a certain number of such incidents of the surgical practice, like diagnosis, consultation, plre-operating and post-operating attention and so forth, and developed that cripples could do those things and some other things and make a living at it, and it contended that the doctor could likewise. By agreement between the parties the doctor called five witnesses besides himself, and so did the company. All of the company’s witnesses were crippled, some worse than the doctor, and all professed to be successfully engaged in surgieal practice, some phase thereof, and all of them agreed that surgieal practice could be carried on by one unable to use instruments. These witnesses contradicted the plaintiff’s witnesses as to what the description, “surgical practice^” covered, implying that it did not necessarily include the ability to use surgical instruments or to operate with them on human beings. It was a fair defense and no impropriety is charged in the conduct of it. But however elaborated the defense remained as succinctly epitomized in defendants’ answer, “that' by reason of the ability of the plaintiff to do and perform many of the duties hereinabove' detailed, and many other duties pertaining to the occupation of surgieal practice, the plaintiff is not entitled to recover.”

The trial court reviewed before the jury categorically all the claims set up in the answer as to what the doctor could do in the way of carrying on his occupation, and the denial of total disability by the company, and its grounds for such denial, and correctly put the burden on the doctor to show his claimed continuous disability during the period involved within the meaning of the policy provisions. As to the meaning of those provisions covering total disability, the instruction was, “Total disability, within the terms of the insurance contract in this ease, means inability to do all substantial and material acts necessary to be done in carrying on plaintiff’s occupation of surgieal practice as distinguished from trivial or incidental acts. It means an inability to perform all the duties necessary to the practical prosecution of said occupation.” In giving this instruction the trial court was not moved to use the verbiage because it is particularly choice but solely because another trial court had used the same language and it had been, carefully considered and found sufficient by the Court of Appeals in the District of Columbia in Metropolitan Life v. Bovello, 56 App. D. C. 275, 12 F.(2d) 810, 51 A. L. R. 1040. The court also instructed:

“If you find that the plaintiff can perform some trivial, incidental acts connected with the practice of surgery, but is unable to perform any and every material and substantial act in the practical prosecution of the practice of surgery, you would be warranted in finding that he was totally disabled within the terms of the contract in this ease. On the other hand, if you find there are any substantial and material acts necessary to be done in carrying on such occupation whieh the plaintiff could perform during the period in controversy in this suit, then you would not be warranted in finding a total disability within the meaning of the contract of insurance. * * •
“If you find that he was able to perform during this time any of the susbtantial and material duties of his business and occupation as a surgeon, that is, all this time during this period that he was able to do — some of the time during all this time he was able to perform any duty, any material and substantial duty pertaining to the practice of surgery, then you must, of course, return a verdict for the defendant.”

Instructions added in colloquy with counsel before the jury added to the clear definition of the issues and the defense as follows:

“Mr. Davis: The defendant asks the Court to instruct the jury on the proposition of partial disability, as defined in the contract; and that even if they find that the plaintiff was permanently injured, but that the disability resulting from the injury was partial only that there could be no recovery in this ease.
“The Court: I have eertainly instructed the jury as to that: that they find, before the plaintiff can recover, that he is unable to perform any of the material and substantial duties of the practice of surgery. * * *
“Judge Bradshaw: The question in this suit is whether or not he is totally disabled.
“The Court: I think so.
“Mr. Davis: And if he is only partially disabled he can not recover.
“The Court: Yes: we will put that in. If he is only partially disabled he could perform part of the duties of his occupation and part of them he couldn’t. Certainly before he can recover he must be unable to perform any of the substantial and material duties of the surgical practice.”
The court made no attempt to detail all of the duties of the occupation nor to fix as a matter of law which were necessary or which could be left out. He defined the issue and stated the law and submitted the determination to the jury. ■

Such accident policy provisions have been before the courts time out of mind. It has always been obvious that an absurdly literal construction could be put upon sueh words as “any and every duty pertaining to my occupation” which would reduce the eoverage for total disability to the states of coma or absolute mental and physical helplessness. But the fact that money is paid and accepted for accident insurance under these policies compels attributing good faith ■to the parties and a construction of the words used in the policy conformable to an honest intention to indemnify against total inability to practically carry on the occupation specified. The opinion of this court on the former appeal assumed some such reasonable construction or it would have approved an instructed verdict for the company. It appears as plainly on that appeal as it does - now that the doctor’s injuries were to his hand only and that the doctor’s health was good save for the lost eye and the crippled right hand. Accordingly it must be deemed well and firmly settled that sueh total disability provisions of any accident policy as here presented do not limit recovery to eases of coma or complete helplessness, nor is recovery precluded because the insured gets well enough to follow some other occupation than the one covered by the policy. The trial ¿court correctly stated the defense and the law in its instructions. Metropolitan Life Ins. Co. v. Bovello, 56 App. D. C. 275, 12 F.(2d) 810, 51 A. L. R. 1040; Standard Accident Ins. Co. v. Bittle (C. C. A.) 36 F.(2d) 152; 41 A. L. R. 1376; 51 A. L. R. 1048.

The company’s requests for instructions and special findings reflect that the company wanted the trial court to split up the issue of total disability and find or have the jury find specially as to things the doctor could or could not do pertaining to his vocation, and it complains here because the trial court refused all sueh requests. It recurs constantly in its argument to the partial disability clause of the policy which contains the words, “one or more duties pertaining to the occupation,” and argues that the two clauses may be read together to its benefit. The clause is as follows: “Partial Loss of Time. Or if such injury shall from the date of the accident or immediately following total disability, prevent the insured from performing one or more material duties pertaining to his occupation. * * * ” Obviously the words of this clause, “prevent the insured from performing one or more material duties,” like the words of the other clause, “prevent the insured from performing any and every duty,” could be absurdly construed to describe a state of helplessness. In a strained sense one flat on his back unable to move is merely “prevented from performing” more duties pertaining to his occupation than the lone duty of thinking about it. But the same assumption of good faith in the parties prohibits the construction, and the courts construe the clause as consistent with honest intention to indemnify against partial disability. Each of the clauses, however, covers completely its subject-matter. To try to commingle them produces only ineoherency. The doctor sued on the total disability provisions, tendered his proof thereon, and the court rightly held that the only issue was total disability vel non under these provisions. There was no error in refusing to split upon the “one or more duties” referred to in the other clause, nor did that clause throw light upon or qualify the meaning of the total disability clause settled and established by the courts in such cases.

Complaint is made that an expert witness was permitted to express his opinion on the ultimate issue whether Doctor McCarthy was able to do surgery. All of the reasons upon which the opinion was predicated were fully disclosed by the witness, and if technically objectionable the questions and answers were entirely without prejudice to the company. It was perfectly manifest to the jury that it was the opinion of the doctor and all of his witnesses that he could not carry on his surgical practice by reason of being totally disabled from doing so and that the company’s doctors were of the contrary opinion. The testimony could not have prejudiced the company. U. S. v. Phillips, 44 F.(2d) 689 (8 C. C. A.).

Appellant also claims that it took exceptions to a definition of surgery given by the court. The definition was right, and not excepted to. The colloquy was as follows:

“Mr. Davis: If the Court please, the defendant excepts to the definition of surgical practice, limiting it solely to mechanical appliances, as too limited in its character, not sufficiently broad.
“Court: I didn’t limit it to mechanical appliances.
“Mr. Davis: Well, I don’t think the definition was quite broad enough, if Your Hon- or please, and the definition was limited to ‘surgery’ instead of ‘surgical practice’ as used in the contract.
“Court: I was defining the word ‘surgery.’ I didn’t define the words ‘surgical practice.’
“Mr. Davis: Defendant excepts. We believe the court should give a definition of ‘surgical practice’ as a broader proposition than mere mechanical appliances and including the material duties of surgical practice.”

It is clear that what was wanted by defendant was a definition of “surgical practice,” not “surgery” and that no error in the definition of “surgery” was called to the court’s attention. As to surgical practice the court told the jury that “they (the company) claimed that the doctor here was insured in his practice of surgery and that the practice of surgery is a little broader than surgery itself. That, gentlemen, is a fact question for you to decide under all the evidence in the ease, as you have heretofore been told.” The assignment should not be sustained.

Complaint is made that the trial court said nothing to the jury about the duty of the doctor to use good faith in trying to practice surgery. It is sufficient to note that no charge of bad faith in this regard was charged in the company’s answer and no issue tendered on the subject. A request for instruction on the matter was included among some twenty-five handed to the court on the trial but there was no error in confining the instructions to the issues made up.. Nor could there have been any prejudice from the omission. Whether the doctor was malingering or actually disabled was before the jury every moment of the trial. The jury must have believed that the doctor could not practice surgery if he tried. The word “disabled” carries that implication clearly and unequivocally. To couch the same thought in the terms of duty adds words but no substance.

On the whole case it is evident that reasonable minds may well differ as to whether a man of Doctor McCarthy’s physical and mental vigor has been totally disabled for surgical practice. But it has been settled by the jury upon a fair trial most ably contested by counsel on both sides.

The judgment is affirmed.

GARDNER, Circuit Judge

(dissenting).

While I am in accord with much that is said in the majority opinion, I find myself unable to reach the conclusion announced therein. I am of the view that the evidence was such that -a jury question was presented, and hence there was no error in denying defendant’s motion for a directed verdict. Neither do I think any prejudicial error was-committed in the court’s rulings on the admissibility of evidence.

The answer of the defendant contained a general denial, followed by specific admissions, and then alleged that the plaintiff had not, during the time covered by the complaint, suffered a continuous disability, within the meaning of the policy, and that there were many duties pertaining to the occupy tion of surgical practice which the plaintiff had, during the period in question, been able, “if he so desired, to perform; that among other duties as a part of the occupation of surgical practice, the occupation described in the contract of insurance sued on, which the said plaintiff, if he so desired, was and is able to perform are the following:” (1) that the plaintife is left-handed, using the left hand as dexterously and as efficiently as a normal person uses the right hand, and that “the plaintiff has been, if he so desired, able to perform many operations that are properly connected with and form a part of the occupation of surgical practice;” (2) that as a part of the occupation of surgical practice, a correct diagnosis of the mental, physical and nervous condition of the patient is essential, and that the plaintiff “has been able to diagnose, as a surgeon, a very large percentage of all eases ordinarily arising in the occupation of surgical practice;” (3) that as a part of the occupation of surgical practice it is necessary to advise medical treatment, to the end'that an operation may be avoided, and that a proper and essential part of surgical practice includes the care of patients preparatory to an operation and subsequent to an actual operation during the period of recovery; (4) that there is a well-ree-ognized field for a consulting surgeon, to the end that as a result of consultation, the correct diagnosis of the injury or malady might be obtained,-and that the profession of medicine includes surgical practice, and in the practice of medicine many duties common to and a part of surgical practice are necessarily performed, and that during the period covered by the action, the plaintiff, had he so desired, was entirely competent and able to perform the essential duties of surgical practice enumerated in the answer.

It was the contention of the defendant that there were many material and substantial duties of the profession of surgical practice which plaintiff could still perform and that the term “surgical practice” as used in the contract of insurance, was not limited to the performance of manual operations. This contention was distinctly, definitely, and persistently asserted by the defendant in its answer, by the character of the evidence offered, by the instructions requested, and the objections interposed to the instructions as given. In the majority opinion, in referring to the duties of professional occupations, it is said:

“Conspicuously every such occupation includes the duties skillfully to observe, to estimate; to apprehend and to prepare for conditions and to consult with others about them and to resolve upon them preceding, accompanying and following professional action. And in all the professions there are specialists. There are theologians who do not preach, lawyers who try no cases, doctors who administer no potions, and surgeons who never incise.”

It is observed, however, that the lower court did not so advise the jury, but instructed the jury as follows:

“In that connection, the use of the word ‘surgery? is made and the law and the dictionary give to that word a meaning, which while it is differently stated, the definitions are practically the same. Here is one of them that I think is practically the same as the general one: Surgery is a branch of medical science. It is limited to manual operations usually performed by surgical instruments or appliances.
“I don’t know as the defendant here complains as to the definition of the word ‘surgery’ but they claim that the doctor here was insured in his practice of surgery, and that the practice of surgery is a little broader than the word surgery itself. That, gentlemen, is a fact question for you to decide under all the evidence in the ease, as you have heretofore been told.
“Now, in this case, gentlemen, the plaintiff was insured against disability from performing the duties of his occupation as a surgeon. * * *
“If you find that the plaintiff can perform some trivial, incidental acts connected with the practice of surgery, but is unable to •perform any and every material and substantial act in the practical prosecution of the practice of surgery, you would be warranted in finding that he was totally disabled within the terms of the contract in this case. On the other hand, if you find there are any substantial and material acts necessary to be done in carrying on such occupation which the plaintiff could perform during the period in controversy in this suit, then you would not be warranted in finding a total disability within the meaning of the contract of insurance.”

Exceptions were saved to these instructions and" counsel for defendant urged that the instructions in effect limited surgical practice solely to the use of mechanical appliances, and that the definition was a definition of surgery, instead of surgical practice as used in the contract of insurance. It is significant that while the contract of in-suranee designated the plaintiff’s occupation as that of surgical practice, yet the court gave a technical definition of surgery as a branch of medical science limited to manual operations. Immediately following this instruction is, first, a suggestion that the court does not know that the defendant complains as to the definition of the word “surgery,” but thát it was claimed that surgical practice was a little broader term, and this issue is submitted in two lines as follows:

“That, gentlemen, is a fact question for you to decide under all the evidence in the case, as you have heretofore been told.”

Then, immediately following this instruction, the jury was instructed that the plaintiff was insured against disability from performing the duties of his occupation “as a surgeon.”

It must be borne) in mind that these instructions were orally given to a jury of laymen, whose only opportunity of ascertaining the law applicable to the facts and issues submitted to them, was from hearing the instructions orally given by the judge. They were not lawyers nor surgeons, nor did they have an opportunity critically to analyze and examine all the instructions. They were here told, in a very striking way, that surgery was limited to the performance of manual operations. They were also told, in very plain, definite language, that the plaintiff was insured against disability from performing the duties of his occupation “as a surgeon.” With these definite and easily understood instructions, the jury must have understood that if the plaintiff’s injuries were such as to prevent him from performing manual operations, then he was entitled to recover, as the court had plainly stated that surgery was so limited, and that he was insured against disability from performing the duties of a “surgeon.” Why define surgery, and why state that the plaintiff’s occupation was that of a surgeon unless it was the purpose of the court to limit the term “surgical practice” to the technical term “surgery” as defined by the court? This was tantamount to instructing the jury to return a verdict for the plaintiff.

True, there were some other instructions, which, if carefully analyzed and examined by a lawyer, might have conveyed the idea that if the jury found that there were other substantial and material duties pertaining to the occupation of surgical practice, and that the doctor, notwithstanding his injury, could perform such material and substantial duties, he would not be entitled to recover. But the most that could be said about these instructions, when it is considered that the jury heard them but once, is that they were inconsistent with the ones above referred to, and as compared with the simple instructions with reference to surgery, they were complicated and difficult to comprehend.

Again, it is noted that the court volunteered the suggestion that it did not know “that the defendant complains of the definition of the word ‘surgery,’ but that they claim that the plaintiff was insured in his practice of surgery, and that the term ‘practice of surgery’ is a little broader than the word ‘surgery.’ ” Now, no definition was attempted of the term “practice of surgery,” and the statement that the defendant may have been complaining or taking issue with what the court said in its instruction, placed the defendant in the light .of antagonism to the court and the court’s views. The instruction then becomes an argument against the defendant, rather than a statement of law to be applied to the concrete facts. The definition of surgery, as given by the court, suggested that surgical practice implied, of necessity, the ability to perform manual operations.

The defendant requested instruction number 3, which is as follows:

“The occupation covered by the policy, and for which the plaintiff was insured, is surgical practice. Surgical practice means the general practice of surgery by one authorized by law to engage in such occupation, under the ordinary circumstances in which a surgeon follows such occupation, and applies to one skilled in the knowledge of medicine and surgery. The occupation of surgical practice is not limited solely to the performing of manual operations, but includes all material duties, as disclosed by the evidence, involved in the occupation of surgical practice.”

The defendant also requested another instruction still more pointed and specific, submitting to the jury its claim that there was included within the term “surgical practice” more than the performance of manual operations. This was the battle ground on the trial of this action, and the issue which the defendant endeavored to have definitely placed before the jury as a question of fact.

In objecting to the instruction which refers to the ability of the plaintiff to perform some trivial, incidental acts connected with the- practice of surgery, counsel for the' defendant called the court's attention to the fact that it had not instructed the jury with particularity as to the material duties of sur-gieal practice, such as diagnosis, medical attention, consultation and group practice, and that under the evidence all these duties were material to surgical practice, and the defendant requested the court to give a well defined instruction as to these material duties, in accordance with the instructions requested by the defendant. This the court declined to- do. In this connection the defendant requested the following instruction:

“If the jury finds that diagnosis of a patient’s condition is one of the material duties of the occupation of surgieal practice, and that during the period sued for Dr. McCarthy could have properly diagnosed a substantial number of surgieal eases, then, if you so find, your verdict should be for the defendant.”

The defendant also requested the following instruction:

“If .the jury finds that medical treatment of a patient prior to an operation, for the purpose of preparing the patient for an operation or for the purpose of avoiding an operation, is one of the material duties of the occupation of surgieal practice, and that during the period sued for Dr. McCarthy could have given such medical- treatment in a substantial number of surgieal eases, then, if ¡you so find, your verdict should be for the defendant.”

A similar instruction was requested with reference to consultation with other, physicians and surgeons for the purpose of diagnosing a ease and determining the character of operation. These were all denied, and nowhere in the instructions were these questions definitely and concretely presented to the jury; in fact, the court, in reply to the defendant’s request, at one place said, “That’s your theory about it.” Apparently, the court was of the view that the defendant was not entitled to have its theory presented, to the jury. These defenses were properly pleaded, and there was evidence in the record, which, if believed by the jury, would have warranted it in finding that diagnosis of a patient’s condition, medical care of a patient prior to operation for the purpose of preparing the patient for operation, or for the purpose of avoiding an operation, medical care and treatment of the patient after an operation, and consultation with other surgeons and physicians for the purpose of properly diagnosing surgieal eases, were all material duties of the occupation of surgieal practice, and there was also evidence in the record, which, if believed by the jury, would have warranted a finding that'the plaintiff could have performed substantial services of this character.

I agree with the statement in the majority opinion that, “A principal complaint here is that the theory of defense was not fairly submitted to the jury by the trial court.” The instructions were general and it cannot now be determined from the verdict whether the jury directly passed upon these questions, vital to the defense in the ease; and in a ease of this importance, dealing as it did almost exclusively with expert testimony, it was of the utmost importance that the questions involved be pointedly, concretely, and distinctly submitted to the jury.

It has long been the rule of this court that where defendant requests instructions on the concrete, crucial questions at issue, it is error to refuse such request, even though the questions may be covered by a general charge. Western Union Tel. Co. v. Morris (C. C. A. 8th) 105 F. 49, 53; Northern Central Coal Co. v. Hughes (C. C. A. 8th) 224 F. 57, 59; American Smelting & Refining Co. v. Riverside Dairy & Stock Farm (C. C. A. 8th) 236 F. 510; Bates County v. Wills (C. C. A. 8th) 239 F. 785, 794; Wisconsin & Arkansas Lumber Co. v. Day (C. C. A. 8th) 35 F.(2d) 563. See, also, Aetna Life Ins. Co. v. Moore, 231 U. S. 543, 34 S. Ct. 186, 58 L. Ed. 356; Kaufman Department Stores v. Cranston (C. C. A.) 258 F. 917; Pennsylvania R. Co. v. W. F. Jacoby & Co., 242 U. S. 89, 37 S. Ct. 49, 61 L. Ed. 165.

" The rule is forcibly stated in an opinion by the late Judge Sanborn in Western Union Telegraph Co. v. Morris, supra, where it is said:

“In support of the rulings of the court counsel for the defendant in error invoke the rule that it is not erroneous for the trial court to refuse to give instructions to the jury in the language of the attorneys when the substance of the instructions is embodied in the general charge of the court. The soundness of this rule is conceded, but its applicability to this ease is not admitted. It may be that the substance of some of the requests can be deduced from the general charge of the court by a careful and painstaking process of rea-' soning. * • * But this conclusion is a deduction from a careful study of the written 1 charge and an extended process of reasoning. The jury had no opportunity to study this charge in this way. They did not read it at .all, and heard it but once. It is plain that it did not as clearly present to those who heard it the real issues as did the requests for instructions which formulated them. A single delivery or reading of this general charge-probably would not at once present to the minds of all who heard it the crucial questions in this ease, while the submission of the instructions requested which clearly stated those issues and applied the law to them would have been sure to do so-. * * General charges of this character often fail to present to the minds of those who hear them but once, and have no opportunity to carefully read and study them, the actual issues whieh they are to decide. A plain statement of the actual issues left for the jury to decide at the conclusion of the evidence, and an application of the law to those very issues in the charge or the instructions of the court, is more helpful to the jury, and far more conducive to the administration of justice, than an abstract statement of the legal propositions whieh govern the ease.
“The counsel for the plaintiff in error requested the court to give to the jury instructions whieh tersely and fairly presented the crucial questions in this ease to the jury. The general charge did not so submit them, but left the jury to eliminate them from the mass of evidence and argument, to apply a general stateinent of the law of probable cause to them, and then to decide them.”

The same principle is diseussed in Northern Central Coal Co. v. Hughes, supra, where Judge Sanborn, speaking for this court, said:

“The refusal of the court to give the instruction requested, therefore, violated the salutary rule that where the charge of a court states general rules of law governing the case, but fails to set forth the specific issues which the jury is called upon to determine and to apply the law to v them, either party upon request is entitled to additional instructions which tersely and clearly state the crucial issues whieh the jury must determine and the law applicable to those very issues.”

In the later ease, Bates County v. Wills, supra, heard before Judges. Sanborn, Adams, and Carland, it was said:

“It is a general and salutary rule that where a charge states general rules of law governing the ease, but fails to set forth a specific and crucial issue which the jury must determine, and to apply the law to that issue, either party, upon request, is entitled to additional instructions whieh tersely and clearly state such issue and the law applicable thereto. The refusal to submit the required instruction was in our opinion a violation of that rule and fatal to the trial of this ease.”

But the rule is not peculiar to this court, but is generally recognized in all jurisdie-tions. Wherever the attention of the jury is not directed to the crucial points on which the liability or nonliability of the defendant depends, then it is error to refuse a requested specific charge on such points. It is not possible to determine, under the general charge given the jury in the instant ease, whether the jury considered the issue that plaintiff could perform the duties of his profession of practicing surgery in connection with diagnosis or treatment of the patient after operation, or whether the jury considered the issue that these duties constituted material, substantial duties of plaintiff’s profession. The defendant’s requested instructions pointedly directed the jury’s attention to these crucial questions, and it had a right to have the jury instructed so clearly and pointedly as to leave no ground for misapprehension or mistake. I am, therefore, of the opinion that the court erred in refusing to give, in substance at least, these requested instructions.

It is common-place to say that in giving or refusing instructions, the court should not ignore either an issue presented by the pleadings and the evidence, or a ground of liability, or a proper defense. Neither should the court give any instruction whieh may east discredit or suspicion on a legitimate defense, and a party is entitled to have instructions given on his theory of the case if supported by evidence. Chicago, M. & St. P. Ry. Co. v. Voelker (C. C. A.) 129 F. 522, 70 L. R. A. 264; Watjen v. Louisville Tobacco Warehouse Co. (C. C. A.) 294 F. 264.

The defendant also requested an instruction to the effect that it was the duty of the plaintiff in good faith to use reasonable, persistent effort to overcome whatever disability he suffered as the result of his accident, and to do and perform all material duties of his occupation of surgical practice that by good faith and persistent effort he would be able to perform. Two instructions were requested, presenting in substance this question, both of which were denied. It has already been observed that the plaintiff was a left-handed man and that his injuries were confined wholly to his right hand. On cross-examination he admitted that since his injury he had made absolutely no effort to perform any material duties of his profession. This court on the former appeal said [33 F. (2d) 7, 12, 70 A. L. R. 1447]:

“We do not think a presumption should be indulged that a highly educated, intelligent, and healthy surgeon by virtue of an injury to his hand such as is here shown could not practice ány substantial part of surgery at any time in the future because it had been determined that for some particular period he could not so do. Disability is not entirely a physical matter. Will power •and condition of mind enter into it. [Italics mine.] A person may be disabled today, and in a year from now, without any change in the physical condition, not be disabled. A one-handed man may not be able to perform surgery to-day, and in a year from to-day may have overcome to some extent his disability and be able to perform some part of the substantial duties of a surgeon.”

It is suggested in the majority opinion that, “No charge of bad faith in this regard was charged in the company’s answer and no issue tendered on the subject.” I think this statement is scarcely warranted by the record. The defendant specifically pleaded at least half a dozen times that if the plaintiff desired to perform the substantial duties of his profession which were set out in the answer, he could have performed them. The burden of proof was on the plaintiff to prove that he was totally disabled from performing all the substantial duties of Ms profession, and it was specifically charged that if he had desired so to do he could have performed them, so that it seems that the requested instructions on this question went to the issue presented by the pleadings and the evidence, and that it Was, under the law of the ease as established by the former opinion of tMs court, a material issue which should have been submitted to the jury. ■ As said by the Supreme Court of Kentucky in Aetna life Ins. Co. v. McCullagh, 191 Ky. 226, 229 S. W. 1033, 1035:

“A recovery for total disability cannot be sustained under eireumstances such as are disclosed by this record where the policy holder contents himself with the statement of Ms inability to perform that which he has never attempted to do.”

Other instructions requested cover substantially the same grounds in different words, and the defendant was entitled to have this issue submitted to the jury.

,, The instructions as ¿ whole did not purport to call distinctly to the jury’s attentioil or require a definite verdict upon the crucial questions involved and did not fairly present the vital, concrete issues, nor the theory of the defense in this ease. The judgment-should, therefore, be reversed and the cause remanded, with directions to grant a neW trial.


text:
    PUEBLO OF PICURIS IN STATE OF NEW MEXICO v. ABEYTA et al.
    No. 444.
    Circuit Court of Appeals, Tenth Circuit
    May 22, 1931.

      R. H. Hanna and Fred E. Wilson, both of Albuquerque, N. M., for appellant.
    Wm. J. Barker and Charles Fahy, both of Santa Fé, N. M., and Floyd W. Beutler, of Taos, N. M., for appellees.
    Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges.
   PER CURIAM.

Section 1 of the Pueblo Lands Act (43 Stat. 636 [25 USCA § 331 note]) provides:

“That in order to quiet title to various lots, parcels, and tracts of land in the State of New Mexico for which claim shall be made by or on behalf of the Pueblo Indians of said State as hereinafter provided, the’United States of America, in its sovereign capacity as guardian of said Pueblo Indians shall, by its Attorney General, file in the District .Court of the United States for the District of New Mexico, its bill or bills of complaint with a prayer for discovery of the nature of any claim or claims of any kind whatsoever adverse to the claim of said Pueblo Indians, as hereinafter determined.”

In compliance with this section, the Attorney General brought this action in the name of the United States as guardian of the Indians of the Pueblo of Picuris. The decision in the court below was adverse to the United States as to a portion of the lands in controversy. The Attorney General declined to appeal from said decision, although urged to do so by the pueblo. Thereupon the pueblo filed its petition for appeal, alleging that it is .a corporation organized under the laws of the state of New Mexico, and a community of Pueblo Indians, and the owner in fee simple, under a grant from the King of Spain, of the lands in controversy. The petition for appeal alleges that the pueblo was advised that it had no right to intervene in said suit, and did not in fact intervene, but that it did co-operate with the Attorney General in the trial of said cause, and that it is the party beneficially interested in the determination thereof. The trial court declined to allow the appeal, the petitioner not being a party to the litigation; the appeal was allowed by a Circuit Judge for the purpose of permitting the matter to be presented to this court. The appel-lees now move to dismiss the appeal.

It was held, prior to the enactment, of the Pueblo Lands Aet, that the pueblo was a juristic person, able to sue and defend with respect to its land. Lane v. Pueblo of Santa Rosa, 249 U. S. 110, 39 S. Ct. 185, 63 L. Ed. 504. Any decree or judgment rendered in an action brought by or against such pueblo did not, however, bind the United States in its sovereign capacity as guardian of such Indians, and was not therefore res judicata in another action involving the same controversy brought by the United States. United States v. Candelaria, 271 U. S. 432, 46 S. Ct. 561, 70 L. Ed. 1023. Section 4 of the Pueblo Lands Act (43 Stat. 637 [25 USCA § 331 note]) preserves the “existing right of the Pueblo Indians of New Mexico to assert and maintain unaffected by the provisions of this Act their title and right to any land by original proceedings, either in law or equity, in any court of competent jurisdiction and any such right may be asserted at any time prior to the filing of the field notes and plats as provided in section 13 hereof, and jurisdiction with respect to any such original proceedings is hereby conferred upon the United States District Court for the District of New Mexico with right of review as in other cases.”

It thus appears that at any time prior to the filing of the field notes and plats by the Secretary of the Interior in the office of the Surveyor General of New Mexico (Pueblo Lands Act, § 13, 43 Stat. 640 [25 USCA § 331 note]) either the United States or the pueblo may maintain an action involving the title and right to lands of the pueblo; but a decree rendered in a suit brought by the pueblo does not bind the United States, while a deeree rendered in a suit brought by the United States does bind the pueblo.

In Mars v. McDougal (C. C. A. 10) 40 F. (2d) 247, certiorari denied 282 U. S. 850, 51 S. Ct. 28, 75 L. Ed.-, it appeared that the United States, as guardian for certain Creek Indians, had brought an action to recover certain lands in Oklahoma for such Indians; that action had been dismissed with prejudice upon the motion of the Attorney General. Thereafter Mr. Mars, claiming under such Creeks, brought an action involving the same controversy, and contended that the dismissal of the earlier case was not a bar because the Attorney General had no power to dismiss with prejudice an action brought for the benefit of Indian wards. This court held that the contention was groundless, .and said, at page 249 of 40 F.(2d):

“Since the United States, acting through its Attorney General, .has the power to maintain sueh. a suit, it would be a strange situation, indeed, if the Attorney General could not dismiss sueh suit with prejudice upon discovery that it was groundless. We conclude that power is vested in the Attorney General, as the head of the department of justice, to initiate, control and dismiss sueh a suit. United States v. San Jacinto Tin Co., 125 U. S. 273, 281, 8 S. Ct. 850, 31 L. Ed. 747; United States v. Throckmorton, 98 U. S. 61, 70, 25 L. Ed. 93; United States v. Beebe, 127 U. S. 338, 342, 8 S. Ct. 1083, 32 L. Ed. 121.”

This ease controls the disposition of this motion. The statutory power of the United States to initiate) actions for the Pueblo Indians necessarily involves the power to control sueh litigation. If the private attorneys of the pueblo could dictate the averments of the bill, or could prevail in questions of judgment in the introduction of evidence, there would be no substance to the guardianship of the United States over the Indians. There cannot be a divided authority in the conduct of litigation; divided authority results in hopeless confusion. If the United States has power to dismiss with prejudice prior to trial, as has been held, it certainly has power to decline to appeal after trial, if it believes the decision of the trial court is without error.

The motion to dismiss the appeal will be sustained, and the costs assessed to the ap-pellees.


author: WOODROUGH, District Judge.

text:
    BURNET, Commissioner of Internal Revenue, v. JONES.
    No. 8952.
    Circuit Court of Appeals, Eighth Circuit.
    May 13, 1931.
    Morton K. Rothschild, Sp. Asst. to Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., J. Louis Monarch, Sp. Asst. to Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Shelby S. Faulkner, Sp. Atty., Bureau of Internal Revenue, on the brief), for petitioner.
    Scott R. Timmons, of Carrollton, Mo. (S. J. Jones, of Carrollton, Mo., on the brief), for respondent.
    Before STONE and GARDNER, Circuit Judges, and WOODROUGH, District Judge.
   WOODROUGH, District Judge.

This appeal is from an order of the United States Board of Tax Appeals redetermining the income taxes of S. J. Jones for the year 1922. The taxpayer is a lawyer engaged in the general practice at Car-rollton, Mo. In 1917 he entered into a written contract with the Norbome Land Drainage Company of Carroll county, Mo., by the terms of which he was employed to render certain legal services connected with the organization of the drainage district and the sale of its bonds. The contract fixed his compensation on the basis of the amount of bonds that should be issued and sold. In March, 1920, a supplemental contract of .employment was entered into between the parties for the stated purpose of making more definite and specific the understanding as to compensation. The contract did not change the character of the services to be rendered, and the services specified by these contracts were rendered and compensation therefor paid in accordance therewith. On the 29th of April, 1922, a new contract in writing was entered into, which provided that the respondent, with other named attorneys, should represent the district in all its litigation then pending and in which it was then interested and “to file all suits that may become necessary for and on behalf of said district and advise the board of supervisors of said district and the other officers of said district from time to time, and at all times said employment to continue up to the time that the works provided for in the plan for reclamation are completed and the contractors finally settled with, and until all litigation commenced by or against said party of the first part or its supervisors, during said period of time, is finally settled or determined.” The contract provides for the compensation agreed upon. During the year 1922 the respondent received as compensation for services rendered to the drainage district $4,834.46.

The drainage district is a municipal corporation and a political subdivision of the state of Missouri, organized under article 1, chapter 28, of the 1919 Revised Statutes of Missouri (sections 4378-4438). The services rendered consisted of advising the board of supervisors when requested, preparing and helping to prepare all legal proceedings on behalf of the defendant, defending all suits brought against it, and performing all other legal duties requested by the board. Throughout the time of his employment the respondent maintained his law office in Car-rollton, Mo., and continuously engaged in the general practice of law. The Board of Tax Appeals held that the compensation received by the respondent for the year 1922 was exempt on the ground that he was an employee of the drainage district within» the meaning of section 1211 of the Revenue Act of 1926 (26 USCA § 1065b), and the correctness of •this holding is the question presented to this court.

Section 1211 of the Revenue Act of 1926 was made retroactive, and hence applicable to prior Revenue Acts. It provides that “any taxes imposed by the Revenue Act of 1924 or prior Revenue Acts upon any individual in respect of amounts received by him as compensation for personal services as an officer or employee of any state or political subdivision thereof (except to the extent that such compensation is paid by the United States Government directly or indirectly), shall, subject to the statutory period of limitations properly applicable thereto, be abated, credited, or refunded.”

In sustaining the contention of the respondent, the Board of Tax Appeals held that he was an employee of the drainage district within the meaning of this section. While his employment was authorized by statute, the statute itself does not fix the status of the attorney as an employee. It does not fix his duties, his salary, nor his tenure of office. He gave no bond and took no oath of office. He had no fixed office hours, but rendered legal services pursuant to specific contract.

The question involved in this ease was fully considered by this court in Burnet v. McDonough, 46 F.(2d) 944. McDonough was a lawyer who rendered legal services to the Ft. Smith-Van Burén bridge district, a political subdivision of the state of Arkansas, under contracts, and thereby earned income sought to be exempted from tax under the same section of the statute and for the same reasons relied upon by respondent. This court held that McDonough was not an “employee” within the meaning of the statute. We see no reason to depart in this ease from the doctrine there stated. The lawyer who is retained in the affairs of his client is not properly designated an employee. He is an officer of the court. As counselor and advisor to his clients and as an advocate before the court, whatever action he takes is upon independent judgment illuminated by his learning, his skill, his experience, and his ethics. The relationship of attorney and client is entered into and maintained with regard to these considerations, and is not that of employer and employee. -

The Board of Tax Appeals was therefore in error and the order of the Board should be set aside, and the case remanded for further proceedings consistent with the opinion of this court.


author: GARDNER, Circuit Judge.

text:
    SOUTHERN SURETY CO. v. FIDELITY & CASUALTY CO.
    No. 9003.
    Circuit Court of Appeals, Eighth Circuit.
    May 10, 1931.
    Rehearing Denied June 18, 1931.
    J. L. Parrish, of Des Moines, Iowa, for appellant.
    Sidney J. Dillon, of Des Moines, Iowa, for appellee.
    Before STONE and GARDNER, Circuit Judges, and WOODROUGH, District Judge.
   GARDNER, Circuit Judge.

The appellant, as plaintiff, brought suit against the appellee to recover on a reinsurance contract. No question is raised on the pleadings, but it should be noted that, in addition to its general denial, the defendant, in its amended and substituted answer, pleaded as an affirmative defense: (1) A fraudulent concealment of facts material to the risk; (2) the failure of Harris to secure from the Drovers’ National Bank a depository bond; (3) that the contract had never been consummated because there had been no meeting of the minds with relation to the subject-matter thereof. The parties will be referred to as they appeared in the lower court.

On September 7, 1920, plaintiff and defendant entered into a general reinsurance contract which provided that either of them might offer to the other reinsurance contracts which might be accepted or rejected, the offer and acceptance, if any, to be upon • a form made part of the general contract. It was also provided that when reinsurance was accepted it should be governed by the standard form of reinsurance agreements.

On February 27, 1924, one George T. Harris made application to the plaintiff for a fidelity bond as town collector of the town of Canteen, 111., in the sum of $140,900, which bond plaintiff executed as surety. Thereafter, in accordance with its general reinsurance contract, on March 18, 1924, it offered to defendant the reinsurance of this bond to the extent of one-third, or $46,966.-66. The negotiations with reference to this matter were carried on by correspondence, and with, its letter of Mareh 18,1924, plaintiff inclosed the application for bond which Harris had signed. The application stated that the funds collected by Harris as collector would be deposited in the Drovers’ National Bank of East St. Louis, HI.; that such deposits would not at any time exceed $60,-000; and that a depository bond would be secured by Harris to cover the deposit. It appears that the plaintiff had executed a pri- or bond for Harris on which the defendant had accepted reinsurance to the extent of one-third of the bond, and the previous bond was canceled when the new bond was executed. No answer having been received from the defendant to this communication of Mareh 18,1924, on April 11,1924, the plaintiff again wrote, calling attention to the faet that defendant had not replied to plaintiff’s offer of March 18th. This letter seems also to have been ignored, and under date May 15, 1924, plaintiff again wrote, calling attention to its letters of Mareh 18 and April 11 in connection with this bond, and also calling attention to the faet that the defendant had re-insured the plaintiff to the extent of one-third of Harris’ bond as collector for the year 1922, which bond was canceled as of March 23, 1924. The last paragraph of the letter reads as follows: “I am enclosing duplicate agreements herewith, and if this offer is acceptable I will thank you to sign both copies and return the original to us for the completion of our files.”

Under date June 5, 1924, plaintiff again wrote defendant, not having any reply to its previous letters, and asked the defendant to look into the matter and advise, “whether or not you care to accept our offer so that we can endeavor to place this reinsurance elsewhere. It has now been almost three months since we first took this matter up with you, and we wall therefore thank you to let us hear from you promptly so that we can get this case disposed of without further delay.”

Under date June 23,1924, the defendant wrote the plaintiff, saying:

“Reinsurance: $43,309 Our No: 1029778, "Tour No: 299827
“xl. ■ We shall be glad to participate in this risk to the extent shown above.”

Under date June 26,1924, plaintiff wrote defendant, calling attention to the fact that defendant’s acceptance of the reinsurance was not in the form provided for by the contract, and requesting that defendant execute and forward the proper form, saying:

“Signed reinsurance agreement was not attached to your letter when received at this office. Our file shows that we have sent you reinsurance agreements for signature on three different occasions, and I will therefore ask you to see that one set is properly executed on behalf of your company and the original returned to• us for the completion of our files.”

It is noted that while plaintiff tendered reinsurance in the sum of $46,966.66, defendant offered to accept such reinsurance only in the sum of $43,399.

On July 25, 1924, plaintiff wrote defendant a letter, advising it of the failure of the Drovers’ National Bank and the appointment of a receiver, and the making of claims by the various beneficiaries under the Harris bond; that at the time of the closing of the bank Harris had on deposit therein the sum of $59,775:48. Under date August 1, 1924, the defendant replied, acknowledging receipt of the letter of July 25,1924, and asking for further details. On August 4,1924, plaintiff wrote defendant with respect to claims being made against it on account of the Harris bond, and among other things stated: “It will be necessary for us to pay the claim of the County Treasurer- amount $14,-184.04 at once, and we shall thank you for your cheek for your proportion - amount $4,728.91.”

Under date August 8, 1924, defendant wrote plaintiff with reference to the Harris bond as follows: “We are returning to you unexecuted the reinsurance agreements which you sent us on the above case as they are incorrectly drawn. We accepted only $43,399, and the agreements are made out for $46,-966.97. Will you kindly have them corrected and return to us for execution.”

Under date August 11, in response to defendant’s letter of August 8, plaintiff wrote defendant, sending new agreements so as to state the correct amount, and stating: “Inasmuch as your account was credited with a premium of $165.99 being one-third of the total premium collected, we are to-day charging your account with a return premium of $12.93.”

A document appearing in the record as Exhibit 15, dated August 11,1924, addressed to defendant, recites that: “We beg to submit herewith reinsurance of $43,399.99 on the following bond to take effect March 1st, 1924.”

The bond is then described, and indorsed on this document is the following:

“Southern Surety Company,
“Des Moines, Iowa.
“The above offer is hereby accepted to the extent of Forty Three Thousand Three Hundred Nine and No/100---($43,309.00) to take effect March 1st, 1924, subject to the terms of the general reinsurance agreement in force between our two companies, the initial premium being $152.97.”

This .was signed by the defendant, and received by plaintiff in due course of mail.

On August 18, though erroneously dated, plaintiff wrote defendant, saying, among other things: “We now know that you accepted reinsurance in the sum of $43,309.02, instead of one-third, and that your proportionate share of any loss we may sustain is therefore, 30.738% instead of 33.333%. Will you, therefore, please send us your check for $4,-359.89, this being your proportionate share of our first loss payment, etc.”

The plaintiff’s liability on the Harris bond, determined according to the standard form of reinsurance agreement as paid by it, amounted to the sum of $60,275.90, and it paid out for expense of investigation in connection with the settlement of the claim, the sum of $1,097.42. Of these amounts plaintiff had recovered at the time of the trial, $47,-931.44, so that if plaintiff was entitled to recover, it was entitled to recover the sum of $6,311.66.

Plaintiff paid defendant by cheek dated August 11, 1924, the sum of $383.25, as the premium for this reinsurance, whieh was received and retained by defendant, being tendered back for the first time in defendant’s amended and substituted answer filed May 19,1930.

Harris, the principal on the bond, failed to secure from the Drovers’ National Bank the depository bond whieh he agreed in his application he would secure. Upon the taking over of the Drovers’ National Bank, one R. R. Karraker was appointed receiver by the United States Comptroller of the Currency, and on May 22, 1924, plaintiff, as surety, executed a bond for Karraker in the sum of $75,000 as sueh receiver. The assistant superintendent of the defendant testified that he had under his direction the reinsurance business of the defendant company to the extent of surety bonds, whieh would embrace sueh a reinsurance contract as involved in this ease; that he did not on August 11, or prior thereto, have any knowledge of the failure of the Drovers’ National Bank of East St. Louis; that it was under his supervision and direction that the instrument datr ed August 11, 1924, which directly accepted the reinsurance on the bqnd in question to the extent of $43,309, was executed; that the company was one of the large surety companies, divided into various departments ; that mail addressed to the Fidelity & Casualty Company of New York, without being directed to the attention of any- particular department, is customarily distributed from a central point. Some one in charge of receiving sueh mail, opens it and examines it to see what department it should go to and sends it to the department he thinks ought to have it.

At the close of the testimony both parties moved for a directed verdict, and the case was taken from the jury and a verdict directed in favor of the defendant. It is this ruling of the lower court that is challenged by plaintiff on this appeal.

Both parties having moved for a directed verdict without any reservation, submitted to the trial judge the determination of the facts, and the court’s decision has the same force and effect as a verdict of the jury, whieh, if sustained by substantial evidence, will not be disturbed by this court. Williams v. Vreeland, 250 U. S. 295, 39 S. Ct. 438, 63 L. Ed. 989, 3 A. L. R. 1038; Commissioners of Road Imp. Dist. v. St. Louis Southwestern Ry. Co., 257 U. S. 547, 42 S. Ct. 250, 66 L. Ed. 364; Aetna Ins. Co. of Hartford, Conn. v. Licking Valley Milling Co. (C. C. A.) 19 F.(2d) 177; Clapper v. Gamble (C. C. A.) 28 F.(2d) 755; Russell Wheel & Foundry Co. v. United States (C. C. A.) 31 F.(2d) 826; Hookway v. First Nat. Bank (C. C. A.) 36 F.(2d) 166; American Surety Co. v. Republic Casualty Co. (C. C. A.) 42 F.(2d) 807.

In directing a verdict for the defendant, the lower court expressed the view that the contract was the result of a mutual mistake; that the plaintiff had withheld knowledge of facts from the defendant material to the risk, of whieh the defendant had no knowledge; and that the contract was not valid because the minds never met upon the risk with full knowledge of all the facts.

It is to be observed that plaintiff’s first offer to defendant was a reinsurance of one-third of the bond. To this offer, after repeated requests, defendant finally replied on June 23, 1924, agreeing to accept not one-third of the bond, but $43,309 thereof. Up t'o this point, it seems clear that the minds of the parties had not agreed upon the same thing. However, under date June 26, plaintiff wrote defendant, saying: “We have your form letter of the 23rd, stating that you are willing to accept our offer of reinsurance to the extent óf $43,309 in connection with our bond as above captioned.”

The rest of the letter is with reference to the reinsurance agreements, and we think under all the evidence the court might have held as a fact that this constituted an acceptance by the plaintiff of the defendant’s offer to reinsure in the amount of $43,309. But assuming.that this is doubtful, there can be no doubt of the meeting of the minds of these parties on August 11, as indicated by the letter of the plaintiff of that date, returning to the defendant reinsurance agreements covering $43,309, and a formal submission of reinsurance in that amount, dated August 11, 1924, and the acceptance of the defendant of this specific offer. The contract of the parties was certainly then complete, and the minds of the parties met on every essential detail of the contract.

It is, however, contended that the plaintiff withheld from the defendant material facts pertaining to the risk which it knew at and prior to this time. Confessedly, plaintiff must have been charged with notiee of the dosing of the Drovers’ National Bank, because it wrote a bond for its receiver on the 22d of May, 1924, but it is observed that on July 25, 1924, plaintiff wrote defendant advising that the Drovers’ National Bank had closed and was in the hands of a receiver, and that demands were being made upon plaintiff on account of the bond. This letter was acknowledged by defendant under date August 1,1924, with request for further details. On August 4, further details were given, and this, it will be noted, was at least one week before the final, definite, and positive acceptance of the reinsurance by the defendant. If it be said that the contract was consummated on the 23d of June, 1924, then the defendant acted without the disclosure of facts material to the risk, and it might have rescinded, had it acted promptly and returned the premium which it had received. This, however, it did not do after having received full information. It was, however, not bound to rescind the contract, and having retained the consideration after having knowledge of the facts alleged to have been concealed, it ratified and affirmed the contract. New York Life Ins. Co. v. Baker (C. C. A.) 83 F. 647; Northern Assur. Co. v. Grand View Bldg. Assn. (C. C. A.) 101 F. 77; Duncan v. Missouri State Life Ins. Co. (C. C. A.) 160 F. 646; Phoenix Mut. Life Ins. Co. v. Raddin, 120 U. S. 183, 7 S. Ct. 500, 30 L. Ed. 644; Cooley’s Briefs on Insurance (2d Ed.) Vol. 5, p. 4352.

If, on the other hand, the contract was not consummated until August 11, then it cannot possibly be maintained that any material facts were concealed from the defendant. Prior to that time, defendant had been fully advised as to the failure of the Drovers’ National Bank, the amount of funds deposited by Harris therein, and the amount of the demands made up to that time under this •bond. With this knowledge, it, nevertheless, entered into this contract, and is not now in position to assert or claim that it was fraudulently misled.

The suggestion that the contract was voided because Harris failed to secure a bond from the Drovers’ National Bank securing his deposit is not tenable. His promise so to do was not a representation of a present fact or condition, but at most was only a promise of what he would do or eause to be done in the future, and this eould not form the basis of a claim of false or fraudulent representations.

We are of the view that there was no substantial evidence to sustain a judgment for the defendant, and the judgment is therefore reversed, and the cause remanded for further proceedings consistent herewith.


text:
    CONTINENTAL NAT. BANK OF JACKSON COUNTY et al. v. HOLLAND BANKING CO. et al.
    No. 9004.
    Circuit Court of Appeals, Eighth Circuit.
    May 16, 1931.

      George L. Edwards, of Kansas City, Mo. (Bowersock, Fizzell & Rhodes, Henry L. Jost, Ryland, Stinson, Mag & Thomson, and Omar E. Robinson, all of Kansas City, Mo., on the brief), for appellants.
    H. G. Leedy, of Kansas City, Mo. (Roscoe C. Patterson, of Kansas City, Mo., and Orin Patterson and Farrington & Curtis, all of Springfield, Mo., on the brief), for appellees.
    Before STONE and GARDNER, Circuit Judges, and WOODROUGH, District Judge.
   WOODROUGH, District Judge.

This appeal is taken to reverse an order of the trial court appointing receiver for the Continental National Bank. The order was made in a suit brought by a judgment creditor of the bank in the nature of a creditor’s bill to enforce the judgment against the bank’s assets and to recover against the shareholders on their liability for any deficiency. The bank had discontinued its ordinary business and turned its assets over to a committee of its own shareholders for voluntary liquidation before the plaintiff’s judgment was obtained, and the members of the committee as well as the bank and its shareholders were all made parties defendant in the bill. The application for the appointment of receiver was heard upon the verified bill and the objections to the appointment of receiver, and there was some colloquy between the court and counsel. the application for the appointment of receiver has been certified to us by the trial judge.

It appeared to the trial judge from the pleadings and the admissions of the parties that the plaintiff had a judgment against the bank from which the bank had appealed to the Supreme Court of Missouri, and that court had affirmed the judgment; that the assets in the hands of the shareholders’ committee were insufficient to pay the judgment and interest; that the directors of the bank and the liquidating committee were denying the validity of the judgment and refusing to recognize it, and some assets of the bank had been liquidated and paid to shareholders with full knowledge of the existence of the plaintiff’s claims. There were strenuous denials that the shareholders’ committee had been guilty of any mismanagement of their trust, and it was urged that they were the ones best qualified to carry out the liquidation. A principal contention was further that the judgment of the plaintiff had been obtained by fraud and was void.

We think the trial court in passing upon the propriety of appointing receiver rightly indulged the presumption that the plaintiff’s judgment was valid [Brictson Mfg. Co. v. Close (C. C. A.) 25 F.(2d) 794], that it rightly considered the bank’s liquidating eom- ' mittee to be in the position of trustees for the creditors, and that the action of the committee in liquidating assets and paying dividends to shareholders when the assets were insufficient to pay the judgment and interest justified appointing a receiver. The order to impound the bank’s assets in the hands of receiver pendente lite was clearly within the court’s jurisdiction and in the exercise of sound discretion. Adequate security was exacted, and there was no error.

After receiver was appointed, the defendant bank and its liquidating committee objected to the person selected on the ground of interest. The court stated he would defer consideration of that objection until determination of this appeal. It appears that Mr. John E. Cahill, named by the court to be receiver, is a deputy finance commissioner of the state of Missouri in charge of liquidation of the judgment creditor plaintiff, and is identified with and assisting the plaintiff in this litigation.' It would seem, therefore, that in his official position he has an interest in the litigation, and that some other suitable and wholly disinterested person should be appointed by the trial court.

Order for receiver is affirmed.