text:
    UNITED STATES v. WILSON.
    No. 3148.
    Circuit Court of Appeals, Fourth Circuit.
    June 17, 1931.
    C. L. Dawson, Atty., U. S. Veterans’ Bureau, of Washington, D. C., and Joseph A. Tolbert, U. S. Atty., of Greenville, S. C. (William Wolff Smith, Gen. Counsel, U. S. Veterans’ Bureau, of Washington, D. C., on the brief), for the United States.
    Douglas Peatherstone and Calhoun A. Mays, both of Greenwood, S. C. (Mays & Peatherstone, of Greenwood, S. C., on the brief), for appellee.
    Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
   NORTHCOTT, Circuit Judge.

Appellee, James W. Wilson, hereinafter referred to as the plaintiff, instituted this action in the District Court of the United States for the Western District of South Carolina, on a $10,000 war risk insurance contract. Plaintiff enlisted in the army of the United States on June 24, 1918, and was honorably discharged on June 24,1919, and while serving in the army was issued a war risk insurance policy for $10,000. The last date the insurance contract was in force was July 31, 1919. Plaintiff alleged that while in such service he suffered serious and permanent injury to his leg, and injury to his nervous system through being under shell fire, from the effect of which disabilities he became permanently and totally disabled to the extent contemplated by the said contract of war risk insurance, as of June 24,1919.

Two weeks after his discharge from the army, plaintiff went to work at the same occupation he had followed before entering the army, working in textile mills, and worked practically continuously, up to the time of the trial, a period of eleven years, receiving about the same wages as others working with him at the same tasks. The ease was tried in November, 1930, before a jury. Motion was made to direct a verdict in behalf of the United States, which motion was denied by the court, and the jury returned a verdict for the plaintiff. Judgment was entered on the verdict by the court below, from which action this appeal was taken.

Two main questions are raised by the appellant in its assignments of error: Pirst, that the court erred in admitting certain reports of physical examinations made of the plaintiff, which were contained in the files of the United States Veterans’ Bureau; second, that the court erred in not directing a verdict for the defendant.

The reports in question, to the admission of which objection was made, were reports of physicians to the Veterans’ Bureau, and contained, among other things, certain statements of plaintiff himself, made during 'the examination. In United States of America v. Wescoat, 49 F.(2d) 193, decided by this court, April 13, 1931, Judge Parker exhaustively discusses the question of the admission of evidence of this character, and this court held that the evidence in that case was admissible, because it constituted the “best evidence possibly obtainable”; but, in the Wescoat Case, there was no question of the admission of anything other than the certificate of the physicians, and the field hospital tags were entries made by the field hospital physicians in the ordinary course of professional duty. The physicians themselves were not available as witnesses, and the tags constituted the best evidence as to the findings of the physicians. In this ease there is no showing that the physicians making the reports could not have been obtained as witnesses, and the judge admitted the entire report, including what may well be termed self serving declarations, made by plaintiff at the time of the various examinations.

The eases of Runkle et al. v. United States (C. C. A.) 42 F.(2d) 804, and United States v. Cole (C. C. A.) 45 F.(2d) 339, relied upon by attorneys for the plaintiff, are easily distinguished from the instant ease, and assuming without deciding that the reports in those eases were properly admitted these decisions are not controlling here. The admission of the records as they were here admitted is, in our opinion, reversible error.

On the second question, it appears from the record that the plaintiff had worked at his usual occupation almost continuously for a period of eleven years, from a date of two weeks after his discharge from the army, and until the time of the trial, and while the plaintiff testified that he worked under great difficulties and in great pain, yet we do not see how it can be maintained that he was permanently and totally disabled in June, 1919.

The pertinent regulation is as follows: “Any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation shall be deemed, in Articles III and IV, to be total disability.”

In the ease of United States of America v. Harrison, 49 F.(2d) 227, decided, by this court April 13, 1931, under evidence not nearly so strong as we have in this case, this court held that the veteran had not been permanently and totally disabled before the lapsing of his policy. Keeping in mind the liberal construction in favor of the insured given a policy of this character, and keeping in mind the fact that a man should not be penalized because he makes an honest effort to make a living, we feel here, as was said in the Harrison Case, that we do not see how the position that the insured was totally and permanently disabled at the time of the expiration of the policy of insurance can be sustained. How can it be said that a man is not able to follow any substantially gainful occupation when hé does work under practically continuous employment for a period of about eleven years, and is so working immediately preceding the day of the trial ?

While the courts are always careful not to invade the province of the jury, as to a finding of fact, a verdict, which is clearly wrong and which is in no way supported by the evidence, cannot be allowed to stand.

For reasons above given the judgment of the court below is reversed.


source: Caselaw Access Project

author: NETERER, District Judge.

license: Public Domain

text:
    PACIFIC COAST PAPER CO. v. SHIBLEY.
    No. 6408.
    Circuit Court of Appeals, Ninth Circuit.
    June 15, 1931.
    Ernest J. Torregano and Arthur P. Shap-ro, both of San Francisco, Cal., for appellant.
    Soren X. Christensen and Leon J. Dugan, both of San Francisco, Cal., for appellee.
    Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
   NETERER, District Judge.

This is an appeal from an order discharging the bankrupt. A number of specifications of objection to the discharge were filed. Superficially they are, that the bankrupt failed to explain satisfactorily losses of assets; that he failed to keep books of account or records from which his financial condition and business transactions might be ascertained; that “said bankrupt, subsequent to the first day of the twelve months preceding the filing of his petition, transferred, removed, destroyed or concealed, certain property of which he was the owner, and with intent to hinder, delay or defraud his creditors”; that he committed an offense punishable by imprisonment, in that, after his adjudication in bankruptcy, he (a) entered into an unlawful conspiracy to conceal, destroy, and mutilate or falsify books, documents, or records affecting or relating to his property or affairs, with the intent and purpose of defrauding his creditors of certain moneys due him from the Amore College; (b) after the filing of the petition in bankruptcy, he withheld from the trustees certain books, documents, or papers affecting or relating to his property or affairs; (e) that he and one Livingston, pursuant to an unlawful conspiracy, concealed from the trustee property belonging "to the estate of the bankrupt, to wit, the sum of $4,000 collected from Amore College by Livingston during the pendency of the bankruptcy proceedings; and (d) that he made a false oath in the bankruptcy proceedings, in that his schedule of assets and liabilities did not contain a true statement thereof, but that the statements in reference to the nature and amount of the claims of the American Type Founders Company and Intertype Corporation were knowingly and fraudulently false.

The specifications of opposition to the discharge were referred to a special master, who, after hearing all of the evidence, filed a report in which he found specifically against each and every objection, and in favor of the bankrupt.

While we are bound by the findings of the special master, and especially when indorsed by the District Court, unless it is palpably apparent that they erred, the court has, however, carefully examined the entire record and found nothing which would warrant setting aside any finding of the special master, approved by the District Court. There is nothing in the record to indicate that there was any unlawful conduct with relation to the Amore College account, or any of the accounts, or that anything was done by the bankrupt or Livingston with a view of keeping any assets from the bankrupt estate, or showing bad faith; and fraud is never presumed. Nor was the estate injured. Whatever was done with relation to the Armore College matter was done in furtherance of agreement with the trustees with a view to disposition of the assets of the estate. Livingston was appointed receiver at the request of “some of the principal creditors” until the trustees were elected. Livingston operated the plant for the trustees, and it was admitted at bar that his conduct of the busifiess was above criticism.

Affirmed.


author: ROBB, Associate Justice.

text:
    NATIONAL REMEDY CO. v. HYDE, Secretary of the Department of Agriculture, et al.
    No. 5087.
    Court of Appeals of District of Columbia.
    Argued April 14, 1931.
    Decided June 1, 1931.
    Abram F. Myers, of Washington, D. C., and Melvin M. Johnson, of Boston, Mass., for appellant.
    Leo A. Rover and J. W. Fihelly, both of Washington, D. C., for appellees.
    Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.
   ROBB, Associate Justice.

Appeal .from a decree in the Supreme Court of the District sustaining a motion to dismiss appellant’s bill to enjoin appellees from causing to be made so-ealled “multiple seizures” of appellant’s “B. & M. External Remedy” until such time as the disputed questions of law and fact can be judicially determined in some one of the several libels already filed against the remedy.

The averments of the complaint, stated in narrative form, are substantially as follows: Appellant, the National Remedy Company, is a Massachusetts corporation, with its principal place of business in Boston, in that state. In 1913 it commenced and has since continued to manufacture and sell the above proprietary remedy. This enterprise has prospered to such an extent that the business and good-will now “amount to about the sum of $100,000.”

The remedy is not a nostrum, but is of value in the treatment of diseases of the human body, as has been demonstrated by practical experience and also by scientific, laboratory, and clinical research, experimentation, and study. It is intended, as its name signifies, solely and only as an external remedy. “The statements contained in and upon the labels, pamphlets, booklets, circulars and other printed matter have been prepared with care, under scientific direction, and in the utmost of good faith.” No representations have been made which appellant and its officers and agents did not believe, and have reason to believe, were and are true, and the medicine never has been, and is not now, adulterated.

The medicine is manufactured in the state of Massachusetts and distributed, not only in that state, but also in interstate commerce to practically all the other states of the Union, to the District' of Columbia, and also to foreign countries.

During the year 1919, at the instance of officials of the Department of Agriculture of the United States, a hearing was had in that Department, at which appellant appeared and presented evidence in support of the claims made in the labels, circulars, pamphlets, and booklets advertising the remedy. The representations made at that time in the labels, books, pamphlets, etc., were substantially the same as those contained in the present literature accompanying the remedy. Appellant being unable at that time to satisfy the Department as to this advertising matter, the Department caused seizures of the remedy to be made under libels filed by the United States in various jurisdictions, and, among other places, in the City of Concord, N. H., in October, 1922. Trial was had before a jury in the District Court of the United States for the District of New Hampshire, at which it was contended by the government that the statements in the advertising matter of appellant regarding the curative and therapeutic effects of its remedy were false and fraudulent. A verdiet was rendered for the claimant, appellant here. Judgment was entered on this verdict.

For a period of six consecutive years following the judgment in the New Hampshire District Court appellant continuously sold and distributed its remedy in interstate commerce and in the state of Massachusetts without molestation or criticism. The remedy is now carried in stock and sold by many thousand drug dealers in practically all of the states of the Union and the District of Columbia.

In December, 3928, and January, 1929, the Department of Agriculture caused libels to be brought against appellant’s remedy, and seizures thereof to be made in the following cities: New York, N. Y.; Pittsburgh, Pa.; Philadelphia, Pa.; Baltimore, Md.; Oakland, Cal.; Portland, Me.; Miami, Fla.; and elsewhere.

Appellant avers, upon information and belief, that the Secretary of Agriculture, acting through subordinates, is purposing and intending to cause to be instituted and prosecuted libels in numerous other places in the United States, all arising out of and based upon the same general allegations and statements so contained in the circulars, pamphlets, booklets, and cartons of appellant. The several libels already instituted contain identical statements and allege the adulteration and misbranding of appellant’s remedy. So far as appellant is advised, the specifications and details of the charges made against appellant’s remedy in the several states where the libels have been filed are identical. If the appellees proceed with other seizures in other places, as they have threatened to do, the entire output of appellant’s factory and workshop could be seized and held for an indefinite period of time.

The prosecution of libels in various courts in widely separated parts of the United States is unnecessarily oppressive and causing appellant great and unnecessary expense, and is ruining, and will ruin and destroy, its business and good will.

Appellant does not seek to' restrain ap-pellees from obtaining, “by the due and proper method provided by law, a decision upon the disputed questions of law and fact involved, but merely wants to prevent irreparable injury to itself arising out of the multiplicity of such libels in widely separated jurisdictions.” Appellant has no plain, adequate, and complete remedy at law, and its property, business, and good will will be ruined and destroyed, unless relief is granted herein.

The motion to dismiss admits all material facts averred in the bill. American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 103, 23 S. Ct. 33, 47 L. Ed. 90.

Under the Pure Food Law (Act of June 30, 1906, 34 Stat. 768 [21 USCA §§ 1-5, 7-15], as amended by the Act of August 23, 1912, 37 Stat. 416 [21 USCA §§ 9, 10]) it is the duty of the Department of Agriculture (section 4 [section 11]) to make examination of specimens of certain foods and drugs for the purpose of determining whether such articles are adulterated or misbranded within the meaning of the act, and, if it shall appear from such examination that any of such specimens is adulterated or misbranded, to “certify the facts to the proper United States district attorney,” who (under section 5 [section 12]), without delay, must institute “appropriate proceedings,” by indictment or libel for condemnation, or both, as the facts may warrant. United States v. Morgan, 222 U. S. 274, 280, 32 S. Ct. 81, 56 L. Ed. 198.

It is conceded by appellees that the determination of the question whether a given product is adulterated or misbranded is for the court, and that “the function and duty of appellees under section 4 of the Food and Drugs Act is one of investigation. Their findings and conclusions in respect of adulteration and misbranding are merely tentative, and have no binding or obligatory force in themselves. They are not a regulation or an order but are merely the assertion of an opinion that the law has been violated and that proceedings in the name of the United States as directed by statute should be instituted for this alleged violation.” Indeed, such was the conclusion of the court in the Morgan Case. Due process of law required this. Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287, 40 S. Ct. 527, 64 L. Ed. 908.

Inasmuch as every district attorney to whom the Department makes certification must institute appropriate proceedings, by indictment or libel for condemnation, or both, it is evident that, even though the findings of the Department are merely administrative, nevertheless, if such certification should be made to the district attorney in every district where a product might be found, the manufacturer would be crippled or ruined long before the final adjudication in the court could be had. Such a result, we think, was not contemplated by Congress, except possibly in unusual eases where drastic action would be necessary for the immediate protection of the public. Is this a case of that character? We think not.

Appellant’s remedy is for external use only. Its business was started in 1913. In 1919 the Department caused seizures to be made in various jurisdictions, and at the trial in the United States District Court for the District of New Hampshire the issue whether the advertising matter constituted misbrand-ing was submitted to the jury, and resulted in a verdict- and judgment for the defendant (appellant here). We must assume, therefore, that the Department at that time was mistaken, and that the remedy was not mis-branded within the meaning of the law. The remedy was the same and the advertising was substantially the same as it is now. The contention then was that the remedy was mis-branded. ■ It is now contended that it is not only misbranded but adulterated. If it is adulterated now, it must have been then, yet the analysis at that time failed to disclose adulteration. We may assume, therefore, that the adulteration (if any) is not of such a character as to endanger the public. This assumption is justified, not only because of the failure do detect adulteration in the analysis of 1919, but because for a period of six years after the judgment in the District Court for New Hampshire appellant was unmolested in the conduct of its business.

In Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764, it was held that, while there is no rule permitting a person to disobey 'a statute with impunity at least once for the purpose of testing its validity, when such validity can only be determined by judicial determination and construction, a provision in the statute which imposes such severe penalties for disobedience of its provisions as to intimidate the parties affected thereby from resorting to the courts to test its validity practically prohibits those parties from seeking such judicial construction and denies them the equal protection of the law. In the present ease, the action and proposed action of the Department would, under the averments of the bill, in effeet deprive appellant of its property through the destruction of its business before the issues involved could be determined by the court. The result, therefore, would be little different than as though no provision had been made for judicial review. Such a course of conduct on the part of the Department amounts to arbitrary exercise of power, and is a deprivation of due process of law. It is not, therefore, a suit against the United States. Philadelphia Co. v. Stimson, 223 U. S. 605, 620, 32 S. Ct. 340, 56 L. Ed. 570; Heath & Milligan Co. v. Worst, 207 U. S. 338, 28 S. Ct. 114, 52 L. Ed. 236.

A court of equity has jurisdiction to restrain by injunction the institution of a multiplicity of suits under such circumstances as are here present. In Third Ave. R. R. Co. v. Mayor, etc., of N. Y., 54 N. Y. 159 (cited with approval in Cave v. Rudolph, 53 App. D. C. 12, 15, 287 F. 989), the municipal authorities had commenced twenty-seven actions against the railroad company to recover penalties prescribed and imposed by city ordinances for running cars without a license. The railroad company brought an action to restrain the prosecution of more than one until that one could be finally heard and determined. The Court of Appeals ruled that, as the prosecution of all the suits would be unnecessarily oppressive, the interference of a court of equity was properly invoked and exereised. But it is contended that, "if appellees should be enjoined in this case no practical relief would be afforded appellant, since under section 5 of the Act the United States Attorney could proceed against various shipments of the product throughout the country when any. health, food, or drug officer or agent of any State, territory, or the District of Columbia should present satisfactory evidence of such violations.” This contention is without merit. The relief prayed for is against appellees to prevent them from causing seizures of practically all of appellant’s product, and to this relief, under the admitted facts, appellant is entitled.

The decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: MARTIN, Chief Justice.

text:
    HAVILAND v. HARRISS.
    No. 5337.
    Court of Appeals of District of Columbia.
    Argued May 4, 1931.
    Decided June 1, 1931.
    Robert H. McNeill, of Washington, D. C., for appellant.
    Brainard H. Warner, Jr., Geo. C. Ober, Jr., and Joseph G. Pehr, all of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, and GRONER, Associate Justices.
   MARTIN, Chief Justice.

Appeal from an order overruling appellant’s motion for the removal of an administrator de bonis non.

It appears that one Edgar Leo Harriss, a resident of the District of Columbia, died intestate in. February, 1920, unmarried and without children, survived by his father, three brothers (one since deceased), his mother, the appellant, who was divorced from decedent’s father, and a stepmother.

In April, 1920, the father, being next of kin and sole heir of decedent, was duly appointed and qualified by the Supreme Court of the District, holding probate court, as administrator of decedent’s estate, and remained such until his death in May, 1930. Coincidently with the father’s decease the estate of his deceased son became entitled to receive the sum of $5,176 as the commuted value of the unpaid installments of a war risk insurance policy, and this constituted the only undistributed assets’ of the estate.

Edwin A. Harriss, the deceased father of Edgar Leo Harriss, dee’d, left a last will and testament which was duly probated, wherein he bequeathed his rights in the proceeds of the War risk insurance policy to his second wife, Annie B. Harriss, and his two surviving sons, Archibald L. Harriss and Carl A. Harriss. It follows that appellant, the divorced first wife, was not entitled to any part of the un-administered assets of the estate of Edgar Leo Harriss, deceased, and that such assets were distributable to the surviving widow and the two sons of Edwin A. Harriss, deceased.

Thereupon, in August, 1939, the appel-lee, Carl A. Harriss, with the approval of the stepmother and the other surviving brother, was appointed by the same court as administrator de bonis non of the Edgar Leo Har-riss Estate. .

In September, 1939, the appellant, the mother of decedent, who had been divorced as aforesaid from his father in his lifetime, filed a petition in court, praying that appel-lee he removed as administrator d. b. n. of his brother’s estate, and that she be appointed as such in his stead. This motion was overruled by the court, and the present appeal was taken.

Under section 196, pt. 2, c. 5, T. 29, D. C. Code 1929, p. 423, relating to the appointment of administrators, it is provided that, if an intestate leave no widow or surviving husband, nor child, nor grandchild, to act as administrator, the father shall be preferred; and, if there be no father, the mother shall be preferred.

Under section 75, pt. 1, e. 5, T. 29, D. C. Code 1929, p. 429, it is provided that, if an administrator shall die before the administration of the estate is completed, letters of administration de bónis non shall' be granted, in the discretion of the court, “giving preference, however, to the person who would be entitled in the order given in Part 2 of this chapter, if he shall actually apply for the same.”

The probate court, in the exercise of the discretion granted to it by section 75', supra, appointed the appellee as administrator d. b. n.,'although he was not the person entitled to appointment according to the order prescribed by section 106 of part 2, supra.

The court, in our opinion, was vested with authority to make, this appointment by the grant of discretion contained in section 75, notwithstanding the directory-reference to the order of appointment of administrators contained therein. Otherwise the provision for the exercise of discretion by the court would have no force or effect whatever as part of the statute. There is no charge of abuse of the court's discretion, and the circumstances of the ease plainly indicate that' it was rightfully exercised.

The order appealed from is accordingly affirmed, with costs.

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


author: VAN ORSDEL, Associate Justice.

text:
    BELL OIL & GAS CO. v. WILBUR, Secretary of Interior.
    No. 5047.
    Court of Appeals of District of Columbia.
    Argued April 13, 1931.
    Decided June 1, 1931.
    F. W. Clements, L. H. Cake, W. G. Feely, and John Henry Sullivan, all of Washington, D. C., and M. H. Silverman, of Tulsa, Okl., for appellant.
    O. H. Graves, of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
   VAN ORSDEL, Associate Justice.

This appeal is from a decree of the Supreme Court of the District of Columbia dismissing the plaintiff’s amended bill of complaint, in which an injunction was sought to prevent the Secretary of the Interior from interfering with plaintiff’s operation of certain oil leases, or instituting proceedings for the cancellation thereof.

The appellant, plaintiff below, is engaged in the business of producing and refining crude oil. The oil which supplies its refinery at Grandfield, Okl., is produced within the Red River area of the Mid-continent field, near the southern boundary of Oklahoma. Plaintiff company is the owner and operator of six oil leases, on government land, which produce from 35 per cent, to 40 per cent, of the total amount of oil used at its refinery. From 10 to 15 per cent, of the oil consumed is purchased from other producers from day to day, at the posted market price. Approximately 50 per cent, is purchased from other producers, under what is known as long-term contracts, at the posted or market price plus 15 cents per barrel. The necessity of purchasing from producers within the Red (River área is due to the fact, as alleged in the bill and admitted by .the motion to dismiss, that plaintiff’s pipe lines do not extend beyond this area, and it is, therefore, compelled to procure its supply for the refinery within this limited territory.

It further appears that the plaintiff is in direct competition with the Texas corporation and the Prairie Oil &' Gas Company,, both of which have assets and resources many times in excess of plaintiff, and purchase’ and refine oil in many states, and who are not limited or dependent upon the Red River area, as is the plaintiff. Due to the extensive operations of these companies, and their importance in the oil industry, the prices fixed by them for the various grades of crude oil produced within the field of their operations are accepted by the industry, and by the Interior Department in its operations generally, as the fair market value of oil. The prices are fixed daily by these companies, and known in the trade as “posted prices,” and are the prices paid by purchasers from day to day, and accepted as the current market prices.

The Secretary of the Interior, under the lease contract with plaintiff, sells the government royalty oil to the plaintiff for use in its refinery. Discovering that plaintiff was paying the producers under the long-term contracts 15 cents per barrel above the posted market price, he ordered the company to pay the same price for the government royalty oils, and, upon failure to pay this, has threatened to enforce the cancellation of plaintiff’s lease. It is-to restrain the Secretary that this action was brought.

The Leasing Act of February 25, 1920-, 41 Stat. 437, provides in section 31 (30 USCA § 188) as follows: “That any lease issued under the provisions of this Act may be forfeited and canceled by an appropriate proceeding in the United States district court for the district in which the property, or some part thereof, is located whenever the lessee fails to comply with any of the provisions of this Act, of the lease, or of the general regulations promulgated under this Act and in force at the date of the lease; and the lease may provide for resort to appropriate methods for the settlement of disputes or for remedies for breach of specified conditions thereof.”

Section 36 (30 USCA § 192), of the act provides how the Secretary of the Interior may dispose of the royalty oils. He may offer them for sale upon notice and advertisement on sealed bids, or at public auction, “and in eases where no satisfactory bid is received or where the accepted bidder fails to complete the purchase, or where the Secretary of the Interior shall determine that it is unwise in the public interest to accept the offer of the highest bidder, the Secretary of the Interior, within his discretion, may read-vertise such royalty for sale, or sell at private sale at not less than the market price for such period, or accept the value thereof from the lessee. Provided, however, That pending the making of a permanent contract for the sale of any royalty, oil or gas as herein provided, the Secretary of the Interior may sell the current product at private sale, at not less than the market price.”

It appears that until the Secretary discovered the terms under which plaintiff was operating its long-term contracts, he had been selling the royalty oil to the plaintiff at the posted market price. It was only when the conditions of the long-term contracts were discovered that the Secretary issued his order requiring plaintiff to pay for the royalty oils 15 cents per barrel, in excess of the day to day market price.

It is unnecessary for'us to enter into any discussion as to the action of-the Secretary, since we are compelled to dispose of the .case upon another ground, namely, that the plaintiff has an adequate remedy at law. The Secretary, under the terms of the act, has no power by his own fiat to cancel these leases. He is required to go into a District Court of the United States to accomplish that result by a proceeding in equity. In that proceeding, plaintiff can set up as a defense the action of the Secretary in attempting to exact the 15 cents per barrel over and above the market price, and the legality of the Secretary’s action would then be for the determination of the court.

But. it is urged that, should the court decide in favor of the Secretary, the only order which it could enter would be to decree the cancellation of the' leases, and that plaintiff should not be compelled to thus place his properties in jeopardy. We are not impressed with this contention. Plaintiff cannot be deprived of its property in the leases except by due process of law, and a court of equity, having jurisdiction of the proceeding, has jurisdiction to enter a decree which will protect the rights of all parties involved; therefore, should the court decide that the Secretary was right in imposing the 15 cents per barrel over and above the market priee, it could still protect the plaintiff by a decree to the effect that, upon the failure of the plaintiff to pay the accumulated amount found to be due the government by a specified date, a decree would be entered canceling the lease.

We are of opinion that the plaintiff is amply. protected by the provisions of the statute, and that Congress has provided it with an . adequate remedy at law.

The decree is affirmed.


author: BUFFINGTON, Circuit Judge.

text:
    Joseph BADAMO, Defendant-Appellant, v. Phillip FORMAN, United States Attorney for District of New Jersey, Plaintiff-Appellee.
    No. 4617.
    Circuit Court of Appeals, Third Circuit.
    June 24, 1931.
    Louis J. Greenberg, of Paterson, N. J., for appellant.
    John Grimshaw, Jr., of Paterson, N. J., for appellee.
    Before ' BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
   BUFFINGTON, Circuit Judge.

After argument and due consideration had, we are of opinion the case was tried without error and the defendant properly convicted. The charge called the jury’s attention to every element it was necessary for them to find in order to so find and carefully safe-guarded the defendant’s rights.

The judgment below is therefore affirmed.


author: PER CURIAM.

text:
    Philip C. K. BARTLETT, Executor, et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE.
    No. 8809.
    Circuit Court of Appeals, Eighth Circuit.
    April 28, 1931.
    William M. Morton, of St. Joseph, Mo., and Walter E. Barton, of Washington, D. C., for appellants.
    G. A. Youngquist, Asst. Atty. Gen., C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Prew Savoy, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. G., for appellee.
   PER CURIAM.

Decision of United States Board of Tax Appeals reversed, without costs to either-party in this court, and cause remanded to Board of Tax Appeals, on motion of appel-lee and consent of appellants.


text:
    BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WELD v. UNION PACIFIC RAILROAD COMPANY.
    No. 426.
    Circuit Court of Appeals, Tenth Circuit.
    June 1, 1931.
    William R. Kelly, of Greeley, Colo., and John R. Wolff, of Boulder, Colo., for appellant.
    C. C. Dorsey and E. G. Knowles, both of Denver, Colo., and N. H. Loomis, of Omaha, Neb., for appellee.
    Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges.
   PER CURIAM.

Appeal dismissed June 1, 1931, per stipulation.


text:
    BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF PROWERS v. ATCHI-SON, TOPEKA & SANTA FÉ, RAILWAY COMPANY.
    No. 427.
    Circuit Court of Appeals, Tenth Circuit.
    June 1, 1931.
    William R. Kelly, of Greeley, Colo., and John R. Wolff, of Boulder, Colo., for appellant.
    Erl H. Ellis, of Denver, Colo., for ap-pellee.
    Before LEWIS, PHILLIPS, and Me-DERMOTT, Circuit Judges.
   PER CURIAM.

Appeal dismissed June 1,1931, per stipulation.


text:
    Ray BROOM, alias C. E. Gill, etc., Appellant, v. UNITED STATES of America.
    No. 9220.
    Circuit Court of Appeals, Eighth Circuit.
    May 29, 1931.
    Fred Coon and Joseph W. McQueen, both of Kansas City, Mo., for appellant.
    William L. Yandeventer, U. S. Atty., and Chet A. Keyes, Asst. U. S. Atty., both of Kansas City, Mo.
   PER CURIAM.

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


text:
    Charles BROWN et al. v. UNITED STATES of America.
    No. 470.
    Circuit Court of Appeals, Tenth Circuit.
    April 18, 1931.
    Dawes & Kyle, of Muskogee, Okl., for appellants.
    W. F. Rampendahl, U. S. Atty., of Muskogee, Okl.
    Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges.
   PER CURIAM.

Appeal dismissed April 18,1931, for failure diligently to prosecute.


text:
    Josefa CALDERON, as Administratrix of the Estate of Louis Calderon, alias Manuel Rojas, Deceased, Plaintiff-Appellant, v. UNITED FRUIT COMPANY, Defendant-Appellee.
    No. 383.
    Circuit Court of Appeals, Second Circuit.
    June 1, 1931.
    Lucien. Y. Axtell, of New York City, for appellant.
    Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (M. L. Fearey and G. H. Merritt, both of New York City, of counsel), for appellee.
    Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
   PER CURIAM.

Judgment affirmed.


text:
    Frank CARELLA et al., Appellants, v. FRANKLIN FIRE INSURANCE CO.
    No. 9213.
    Circuit Court of Appeals, Eighth Circuit.
    May 13, 1931.
    Friedberg & Rich, of Kansas City, Mo., for appellants.
    William!. S. Hogsett, of Kansas City, Mo., for appellee.
   PER CURIAM.

Appeal docketed and dismissed per stipulation of parties; clerk’s fees to be paid by appellee.


text:
    Tony CASTRO, Appellant, v. UNITED STATES of America.
    No. 9082.
    Circuit Court of Appeals, Eighth Circuit.
    May 26, 1931.
    Raymond T. Coffey and J. R. Lones, both of Omaha, Neb., for appellant.
    Charles E. Sandall, U. S. Atty., of Omaha, Neb.
   PER CURIAM.

Appeal dismissed without costs to either party in this court, on motion of appel-lee.


text:
    J. F. CHARLESWORTH, Trustee, etc., Appellant, v. John E. STEVENS.
    No. 9136.
    Circuit Court of Appeals, Eighth Circuit.
    May 5, 1931.
    Frank P. Barker, of Kansas City, Mo., for appellant.
    George Reinhardt, of Kansas City, Mo., for appellee.
   PER CURIAM.

Appeal dismissed at costs of appellant, on motion of appellant and stipulation of parties.


text:
    CHICAGO TITLE & TRUST CO., as Trustee, et al., Appellant, v. UNITED STATES of America.
    No. 9094.
    Circuit Court of Appeals, Eighth Circuit.
    April 21, 1931.
    Charles R. Fowler and Henry C. Carlson, both of Minneapolis, Minn., and Harry Weiss, of St. Paul, Minn., for appellants.
    Lewis L. Drill, U. S. Atty., and John M. Rees, Sp. Asst. U. S. Atty., both of St. Paul, Minn.
   PER CURIAM.

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


text:
    COMMISSIONER OF INTERNAL REVENUE, Appellant, v. Edgar M. MORSMAN, Jr., Administrator, etc.
    No. 8644.
    Circuit Court of Appeals, Eighth Circuit.
    May 5, 1931.
    Howard T. Jones, Acting Head, Prohibition-Tax Division, C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Prew Savoy, Atty., Bureau of Internal Revenue, all of Washington, D. C., Barham R. Gary, and J. Louis Monarch, Sp. Assts. to Atty. Gen., for appellant.
    Edgar M. Morsman, Jr., of Omaha, Neb., for appellee.
   PER CURIAM.

Mandate of Supreme Court of United States ordered filed and recorded, decree of this court [44 F.(2d) 902] vacated, etc., and decision of Board of Tax Appeals affirmed, without costs to either party in this court.


text:
    James DENARO, Appellant, v. MARYLAND BAKING COMPANY, a Corporation, Ap-pellee.
    No. 3151.
    Circuit Court of Appeals, Fourth Circuit.
    June 17, 1931.
    Jesse A. Holton, of Boston, Mass. (John E. Cross, of Baltimore, Md., on the brief), for appellant.
    Albert E. Dieterich, of Washington, D. C. (Bowie & Burke, of Baltimore, Md., on the brief), for appellee.
    Before PARKER and NORTHCOTT, Circuit Judges, and ERNEST F. COCHRAN, District Judge.
   PER CURIAM.

The main contention of appellant on this appeal is that the court below in its opinion (Denaro v. Maryland Baking Co., 40 F.(2d) 513) erroneously applied the principles laid down in the opinion of the Supreme Court in the case of Alexander Milburn Co. v. Davis-Bournonville Co., 270 U. S. 390, 46 S. Ct. 324, 70 L. Ed. 651. A careful consideration of the briefs and argument before us, and a study of the record, lead us to the conclusion that the judge below not only properly applied the principles laid down by the Supreme Court in the Milbum Case, but also reached the correct conclusion on the merits. The judge below had the advantage of seeing machines used by the appellee in actual operation, and his conclusion should be given all the more weight because of that fact.

The questions raised by the counterclaim of defendant are not before us, as defendant did not appeal; but, so far as tbe opinion of the judge below relates to the patents relied on by complainant and the alleged infringement thereof, same is adopted as the opinion of this court, and the decree below will accordingly be affirmed.


text:
    John DIAMOND, alias Pete Diamond, Appellant, v. UNITED STATES of America.
    No. 9230.
    Circuit Court of Appeals, Eighth Circuit.
    June 22, 1931.
    Arthur A. Hapke, Asst. U. S. Atty., of St. Louis, Mo., for appellee.
   PER CURIAM.

Appeal docketed and dismissed, without costs to either party in this court, on motion of appellee and consent of appellant.


text:
    D. L. FLACK & SON, Inc., Plaintiff-Appellant, v. WEST VIRGINIA COAL COMPANY, Inc., Defendant-Appellee.
    No. 410.
    Circuit Court of Appeals, Second Circuit.
    June 1, 1931.
    Marshall, Wehle & Hinckley, of New York City (Harold Harper, of New York City, of counsel), for appellant.
    Crowell & Rouse, of New York City (E. Curtis Rouse, appearing specially, of New York City, of counsel), for appellee.
    Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
   PER CURIAM.

Affirmed on opinion in Zadig v. Ætna Ins. Co., 42 F.(2d) 142 (C. C. A. 2).


text:
    Burt ESPEY, Appellant, v. UNITED STATES of America.
    No. 9210.
    Circuit Court of Appeals, Eighth Circuit.
    May 4, 1931.
    Prank E. Noonan, of Kansas City, Mo., for appellant.
    William L. Vandeventer, U. S. Atty., and Chet A. Keyes. Asst. U. S. Atty., both of Kansas City, Mo.
   PER CURIAM.

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


text:
    Arthur H. FLEMING, Plaintiff in Error, v. David BURNET, Commissioner of Internal Revenue, Defendant in Error. Marjorie Fleming LLOYD-SMITH, Plaintiff in Error, v. David BURNET, Commissioner of Internal Revenue, Defendant in Error.
    No. 5353.
    Circuit Court of Appeals, Ninth Circuit.
    May 18, 1931.
    Charles C. Parlin, of New York City, and Claude I. Parker and Ralph W. Smith, both of Los Angeles, Cal., for plaintiffs in error.
    G. A. Youngquist, Asst. Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., for defendant in error.
    Before WILBUR and SAWTELLE, Circuit Judges, and ST. SURE, District Judge.
   PER CURIAM.

Pursuant to stipulation of counsel for respective parties, and good cause therefor appearing, ordered orders of redetermination of Board of Tax Appeals in above cause corrected to'show that the unpaid portion of the correct tax liability of the plaintiffs in error for the calendar years 1917 to 1920, inclusive, is as follows:

A. H. Fleming J. F. Lloyd-Smith

1917 $1,039.53 $15,327.26

1918 3,040.93 28,894.08

1919 5,425.70 18,659.27

1920 3,180.70 19,562.62

■ — that judgment accordingly be entered in this court; mandate of this court to issue forthwith.


text:
    Frank FOX v. UNITED STATES of America.
    No. 501.
    Circuit Court of Appeals, Tenth Circuit.
    June 24, 1931.
    W. L. Chapman, of Shawnee, Okl., for appellant.
    Roy St. Lewis, U. S. Atty., of Oklahoma City, Okl.
    Before LEWIS and PHILLIPS, Circuit Judges.
   PER CURIAM.

. Appeal dismissed June 24, 1931, on motion of appellant.


text:
    Fred FREY, Appellant, v. UNITED STATES of America.
    No. 9179.
    Circuit Court of Appeals, Eighth Circuit.
    April 3, 1931.
    J. R. Lones, of Omaha, Neb., for appellant.
    Charles E. Sandall, U. S. Atty., and Edson Smith, Asst. U. S. Atty., both of Omaha, Neb.
   PER CURIAM.

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


text:
    GLEMBY COMPANY, Inc., Appellant, v. ATLAS SAMPLE CARD CO., Inc., Ap-pellee.
    No. 405.
    Circuit Court of Appeals, Second Circuit.
    June 1, 1931.
    Jacob Krisel, of New York City, for appellant.
    Irwin M. Levy, of New York City, for ap-pellee.
    Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
   PER CURIAM.

Judgment affirmed.


text:
    GONG ARK LEE, Appellant, v. John D. NAGLE as Commissioner of Immigration for the Port of San Francisco, Cal., Appellee.
    No. 6396.
    Circuit Court of Appeals, Ninth Circuit.
    May 18, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
   PER CURIAM.

. Pursuant to motion of counsel for appellant, and agreed to by counsel for appellee, ordered appeal herein dismissed, that a decree of dismissal be filed and entered accordingly, and' that the mandate of this court issue forthwith.


text:
    Marcus GORGES v. UNITED STATES of America.
    No. 466.
    Circuit Court of Appeals, Tenth Circuit.
    April 15, 1931.
    Hal M. Black, of Wichita, Kan., for appellant. '

      S. M. Brewster, U. S. Atty., of Topeka, Kan.
    Before LEWIS, PHILLIPS, and Me-DERMOTT, Cireuit Judges.
   PER CURIAM.

Appeal dismissed April 15,1931, on motion of appellant.


text:
    Andrew GROSSO v. UNITED STATES of America.
    No. 437.
    Circuit Court of Appeals, Tenth Circuit.
    April 13, 1931.
    Charles T. Mahoney and Harold G-. King, both of Denver, Colo., for appellant.
    Ralph L. Carr, U. S. Atty., of Denver, Colo.
    Before LEWIS, PHILLIPS, and Me--DERMOTT, Circuit Judges.
   PER CURIAM.

Appeal dismissed April 13, 1931, per stipulation.


text:
    Richard GROSSO v. UNITED STATES of America.
    No. 439.
    Circuit Court of Appeals, Tenth Circuit.
    April 13, 1931.
    Charles T. Mahoney and Harold G-. King, both of Denver, Colo., for appellant.
    Ralph L. Carr, U. S. Atty., of Denver, Colo.
    Before LEWIS, PHILLIPS, and Mc-DERMOTT, Cireuit Judges.
   PER CURIAM.

Appeal dismissed April 13, 1931, per stipulation.


text:
    HARTFORD-EMPIRE COMPANY, Petitioner, v. Charles B. FARIS, District Judge.
    No. 362.
    Circuit Court of Appeals, Eighth Circuit.
    March 26, 1931.
    A. C. Paxil, of Chicago, HI., for petitioner.
    Lawrence C. Kingsland, of St. Louis, Mo., for respondent.
   PER CURIAM.

Motion for leave to file petition for writ of mandamus and prohibition granted, and petition denied.


text:
    HEIMAN GROCERY COMPANY, Appellant, v. Noah CROOKS, Collector, etc.
    No. 9065.
    Circuit Court of Appeals, Eighth Circuit.
    April 15, 1931.
    A. E. Watson and Daniel C. Ketchum, both of Kansas City, Mo., for appellant.
    William L. Vandeventer, U. S. Atty., and Harry L. Thomas, Asst. U. S. Atty., both of Kansas City, Mo., for appellee.
   PER CURIAM.

Appeal dismissed at costs of appellant, on motion of appellant. [44 F.(2d) 854].


text:
    A. G. HENDRICK, Appellant, v. STANDARD OIL COMPANY OF INDIANA.
    No. 8934.
    Circuit Court of Appeals, Eighth Circuit.
    May 4, 1931.
    A. E. Sheridan, of Waukon, Iowa, and H. C. Kenline, R. P. Roedell, H. J. Hoff-mann, and L. F. Tierney, all of Dubuque, Iowa, for appellant.

      F. A. O’Connor, of Dubuque, Iowa, and B. F. Swisher, of Waterloo, Iowa, for appel-lee.
   PER CURIAM.

Appeal dismissed, at costs of appellant, on motion of appellee under rules 23 and 24.


text:
    G. E. HERRON, Appellant, v. SOUTHERN PACIFIC COMPANY, a Corporation, Appellee.
    No. 5948.
    Circuit Court of Appeals, Ninth Circuit.
    May 29, 1931.
    Dougherty & Rodgers and J. A. Walsh, all of Mesa, Ariz., for appellant.
    Baker & Whitney, of Phœnix, Ariz., for appellee.
    Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
   PER CURIAM.

The mandate (51 S. Ct. 383) of the Supreme Court of the United States answering certain questions certified having been ordered filed, and good cause therefor appearing, it is ordered that the judgment of the said District Court in this cause be, and hereby is, affirmed; mandate forthwith.


text:
    Dan HOGAN et al., Appellant, v. UNITED STATES of America, Appellee.
    No. 5991.
    Circuit Court of Appeals, Fifth Circuit.
    July 14, 1931.
    Before FOSTER, Circuit Judge, and HUTCHESON and SIBLEY, District Judges.
   PER CURIAM.

The petition for rehearing in the above numbered and entitled cause, 48 F.(2d) 516, is granted as to. Jerome Woods and denied as. to all other appellants.


text:
    Silas J. HORN et al. v. UNITED STATES of America.
    No. 9218.
    Circuit Court of Appeals, Eighth Circuit.
    May 26, 1931.
    A. S. Dowdall, Jr., of Minneapolis, Minn.,, for appellants.
    Lewis L. Drill, U. S. Atty., of St. Paul, Minn.
   PER CURIAM.

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


text:
    INECTO, Inc., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    No. 364.
    Circuit Court of Appeals, Second Circuit.
    June 1, 1931.
    Gordon & Young, of New York City, for petitioner.
    G. A. Youngquist, Asst. Atty. Gen., and Sewall Key and John H. McEvers, Sp. Assts. to Atty. Gen., and E. C. Crouter, of Washington, D. C., for respondent.
    Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. ’
   PER CURIAM.

Decision of the Board of Tax Appeals affirmed.


text:
    Carl E. KRIMMEL v. UNITED STATES of America.
    No. 5820.
    Circuit Court of Appeals, Sixth Circuit.
    June 13, 1931.
    I. H. Polozker and Leonard S. Coyne, both of Detroit, Mich., for appellant.
    Gregory H. Frederick, U. S. Atty., of Detroit, Mich.
   PER CURIAM.

Dismissed by court order pursuant to motion of counsel for appellee.


text:
    L. H. PHILO CORPORATION, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    No. 355.
    Circuit Court of Appeals, Second Circuit.
    June 8, 1931.
    W. A. Seifert, of Pittsburgh, Pa., and M. N. Fisher, of Washington, D. C. (Davis, Polk, Wardwell, Gardiner & Reed, of New York City, and Smith, Shaw, McClay & Sei-fert, of Pittsburgh, Pa., of counsel), for petitioner.
    G. A. Youngquist, Asst. Atty. Gen., and Helen R. Carloss and Sewall Key, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and William E. Davis, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent.
    Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
   PER CURIAM.

In accordance with the confession of error of the respondent, the depreciation of the petitioner’s assets for the years 1924 and 1925 should be based upon the sum, $70,348.-62. Otherwise the order is affirmed.


text:
    Carlo MARCHETTI, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Henry M. FOWLER and Edward J. Blacker, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    Nos. 6530, 6531.
    Circuit Court of Appeals, Ninth Circuit.
    July 22, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges.
   PER CURIAM.

Ordered motion of petitioner, or petitioners, in each of above causes, for dismissal of petition to review, consented to by counsel for respondent, granted, that judgments of dismissal be filed and entered accordingly, and that the mandate of this court in each cause issue forthwith.


text:
    H. H. MOTTER, Collector of Internal Revenue, v. John DENMAN, Jr., et al.
    No. 442.
    Circuit Court of Appeals, Tenth Circuit.
    April 30, 1931.
    S. M. Brewster, U. S. Atty., of Topeka, Kan., for appellant.
    Banks, O’Brien & MeYey, of Independence, Kan., for appellees.
    Before LEWIS, PHILLIPS, and Me-DERMOTT, Circuit Judges.
   PER CURIAM.

Appeal [44 F.(2d) 648] dismissed April 30, 1931, on motion of appellant.


text:
    MUTUAL LUMBER COMPANY, a Corporation, Appellant, v. Burns POE, as Collector of Internal Revenue of the United States for the District of Washington, Appellee.
    No. 6143.
    Circuit Court of Appeals, Ninth Circuit.
    June 11, 1931.
    Charles E. McCulloch, Ivan F. Phipps, and Carey Hart, Spencer & McCulloch, all of Portland, Or., for appellant.
    Anthony Savage, U. S. Atty., of Seattle, Wash., and John T. McCuteheon, Asst. U. S. Atty., of Tacoma, Wash. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, Washington, D. C., and John R. Wheeler, Sp. ■ Atty., Bureau of Internal Revenue, of Seattle, Wash., of counsel), for appellee.

      Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
   PER CURIAM.

Pursuant to stipulation of counsel for the respective parties, ordered mandate of this court, heretofore issued, recalled; further ordered judgment [44 F.(2d) 922] of this court heretofore entered vacated and set aside; further ordered judgment of reversal [30 F.(2d) 130] in pursuance of stipulation of counsel filed and entered accordingly, and mandate of this court issued forthwith.


text:
    John D. NAGLE, as Commissioner of Immigration for the Port of San Francisco, California, Appellant, v. Silvio ROSET, Appellee.
    No. 6258.
    Circuit Court of Appeals, Ninth Circuit.
    June 1, 1931.
    Geo. J. Hatfield, U. S. Atty., of San Francisco, Cal., for appellant.
    Alfred L. Branch, of San Francisco, Cal., for appellee.
    Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
   PER CURIAM.

Pursuant to stipulation of counsel for the respective parties, and good cause therefor appearing, it is ordered that -the order of the District Court in. this cause be, and hereby is, reversed.


text:
    PACIFIC DOOR AND SASH COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    No. 6532.
    Circuit Court of Appeals, Ninth Circuit.
    July 22, 1931.
    Before WILBUR and SAWTELLE* Circuit Judges.
   PER CURIAM.

Ordered motion of respondent for dismissal of petition to review, consented to by counsel for petitioner, granted, that a judgment of dismissal be filed and entered accordingly, and that the mandate of this court issue forthwith.


text:
    PARAGON OIL COMPANY v. COMMISSIONER OF INTERNAL REVENUE.
    No. 295.
    Circuit Court of Appeals, Tenth Circuit.
    June 1, 1931.
    Merrick A. Whipple, of Tulsa, OH., for petitioner.
    C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., for respondent.
    .Before LEWIS, PHILLIPS, and Me-DERMOTT, Circuit Judges.'
   PER CURIAM.

Petition dismissed June 1, 1931, on motion of petitioner.


text:
    Maude PEARMAN, Administratrix, etc., Appellant, v. LINCOLN NATIONAL LIFE INSURANCE CO.
    No. 9047.
    Circuit Court of Appeals, Eighth Circuit.
    April 3, 1931.
    For opinion below, see 43 F.(2d) 163.
    Raymond Klass, of Cedar Rapids, Iowa, Ruby -Hulen, of Columbia, Mo., and Clay C. Rogers, of Kansas City, Mo., for appellant.
    William C. Michaels and Charles M. Blaekmar, both of Kansas City, Mo., and R. F. Baird, of Fort Wayne, Ind., for appellee.
   PER CURIAM.

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


text:
    Gerald PEDEN et al. v. UNITED STATES of America.
    No. 491.
    Circuit Court of Appeals, Tenth Circuit.
    June 2, 1931.
    James H. Mathers, of Oklahoma City, Okl., for appellants.
    Roy St. Lewis, U. S. Atty., of Oklahoma City, Okl.
    Before LEWIS, PHILLIPS, and Me-DERMOTT, Circuit Judges.
   PER CURIAM.

Appeal as to Gerald Peden dismissed June 2,1931, on motion of appellant.


text:
    PICKWICK STAGES CORPORATION v. Willietta SHATTUCK.
    No. 492.
    Circuit Court of Appeals, Tenth Circuit.
    June 1, 1931.
    M. J. Healy, of Topeka, Kan., for appellant.
    John A. Hall, of Pleasanton, Kan., for appellee.
    Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges.
   PER CURIAM.

Appeal dismissed June 1,1931, on motion of appellee.


text:
    PUEBLO DE SANTA CLARA v. UNITED STATES of America.
    No. 418.
    Circuit Court of Appeals, Tenth Circuit.
    April 18, 1931.
    Barker & Fahy, of Santa Fé, N. M., for appellant.
    George A. H. Fraser, Sp. Asst, to Atty Gen., for appellee.
    Before LEWIS, PHILLIPS, and Me-DERMOTT, Circuit Judges.
   PER CURIAM.

. Appeal dismissed April 18,1931, per stipu^10n‘


text:
    John RAMSEY v. UNITED STATES of America.
    No. 233.
    Circuit Court of Appeals, Tenth Circuit.
    April 28, 1931.
    Fred A. Tillman, of Pawhuska, Okl., for appellant.
    John M. Goldesberry, U. S. Atty., of Tulsa, Okl., for appellee.
    Before LEWIS and PHILLIPS, Circuit Judges.
   PER CURIAM.

Appeal dismissed April 28, 1931, on motion of appellee.


text:
    Leo A. REHBERG et al., Appellants, v. UNION CENTRAL LIFE INSURANCE CO.
    No. 9135.
    Circuit Court of Appeals, Eighth Circuit.
    May 20, 1931.
    M. F. Harrington, of O’Neill, Neb., for appellants.
    R. 0. Williams, of Lincoln, Neb., for ap-pellee.
   PER CURIAM.

Appeal dismissed, with costs, on motions of appellee and appellants.


author: AVIS, District Judge.

text:
    Charles C. RIGGS, George R. Logan, N. Nelson Keen, and Henry B. Hutchings, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    Nos, 4319-4322.
    Circuit Court of Appeals, Third Circuit.
    June 9, 1931.
    Van Doren, Conklin & MeNevin, of New York City (Edward S. Bentley and William R. Conklin, both of New York City, of counsel), for petitioners.
    G. A. Youngquist, Asst. Atty. Gen., and John V. Groner and J, Louis Monarch, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Stanley Suydam, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent.
    Before BUFFINGTON and DAVIS, Circuit Judges, and AVIS, District Judge.
   AVIS, District Judge.

Petitioners appeal from the decision of the Board of Tax Appeals with relation to inepme taxes assessed against them for the year 1918.

The petitioners, with others, were stockholders of a corporation, known as the A. H. Lambom Company, which corporation, operating during the year 1917, earned, less losses, $325,334.95, and this amount represents the undivided profits of the company as of December 31, 1917. On March 11, 1917, the corporation was dissolved, and the individual stockholders then formed a co-partnership; its members being the former stockholders of the A. H. Lambom Company. All of the assets of the corporation were transferred to the partnership, and the individuals composing the partnership had an interest therein equal to their respective interests in the dissolved corporation.

On March 15,1919, each of the petitioners filed tentative returns, and paid the first installment, or one-fourth, of the estimated tax. The amount of the tax so reported by each petitioner was subsequently assessed against them, respectively.

Later, and after some correspondence between the Commissioner and counsel for the taxpayers, it was held that the petitioners were not réquired to' pay a tax on the assets of the corporation turned over to the partnership, and completed returns were filed by the petitioners, omitting the amounts so transferred. This report apparently was not satisfactory to the Commissioner, and on or about February 19/ 1924, petitioners signed and filed waivers, extending the time for making of additional assessments against the-petitioners to June 15, 1925.

On March 6,1925, additional assessments were made as follows: Charles C. Riggs,. $10,004.14; George H. Logan, $3,938.24/ N. Nelson Keen, $3,881.85; Henry B. Hutch-ings, $9,989.70.

Claims in abatement were filed by all of the petitioners, and on November 11, 1925, s sixty-day notices were sent to petitioners rejecting the claims. The appeal was then taken to the Board of Tax Appeals, where-the assessments were sustained, and the controversy was then removed into this court by petition for review.

The question of the power of the Commissioner to make the assessment under the statute and waivers filed was decided favorably to the government in the ease of Florsheim Bros. Co. v. United States, 280 U. S. 453, 459, 460, 50 S. Ct. 215, 74 L. Ed. 542, and that ease also disposed of the petitioners’ contention of the invalidity of the deficiency assessment made upon the tentative return.

In the ease heard by the Board of Tax Appeals, there were two petitioners, to wit, Gerard P. Tameling and B. Wheeler Dyer,, in addition to those appearing here. The cases of these two ■ taxpayers were, because of jurisdiction, appealed for review to the-United States Circuit Court of Appeals for the Second Circuit. That court rendered a-decision, based upon similar facts and upon similar arguments and contentions.

In an opinion by' Circuit Judge Learned: Hand, reported in 43 F.(2d) 814, the validity of the assessments of 1919 and 1925, the authenticity of the signature of the Commissioner annexed to the assessment, and the-right to- base the same upon the tentative returns, were decided in favor of the Commissioner, and this court agrees with the opinion of Judge Hand, both as to the fact and the law.

• One question not passed upon by the-Board of Tax Appeals, and not decided in the Second Circuit ease, is raised in the brief of petitioners. It is claimed that the Board overlooked the fact that the amount-assessed against the petitioner Riggs was-reduced $3,593.96, as an overassessment, by certificate dated May 16, 1925.

It is apparent that counsel for Riggs has-not fully considered the entire matter of. .assessments and deductions. The original tax assessed, as per tentative return, amounted to $7,000. A second assessment was made on March 6, 1925, amounting to $10,004.14, making a total of $17,004.14. The over-assessment abated by the certificate, dated May 16, 1925, was $3,593.96, leaving a net tax ■ of $13,410.18. Mr. Riggs made two payments on account of this tax; the first, amounting to $1,750, when the tentative return was filed, and $1,656.04, when the completed return was filed — a total of $3,406.04. Deducting this amount from the net tax of $13,410.18, leaves $10,004.14, the balance due to make settlement.

The Board of Tax Appeals being correct in its application of the law and in the as-■eertainment of the amount due, its decision is affirmed.


text:
    Basil ROBILLARD, Executor of the Estate of Martha H. Beeman, Petitioner, v. David BURNET, Commissioner of Internal Revenue, Respondent.
    No. 423.
    Circuit Court of Appeals, Second Circuit.
    June 8, 1931.
    Basil Robillard, of Niagara Falls, N. Y., for appellant.
    G. A. Youngquist, Asst. Atty Gen., and A. H. Conner and Sewall Key, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, .Bureau of Internal Revenue, and Dean P. Kimball, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. O., of counsel), for appellee.
    Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
   PER CURIAM.

Decision affirmed.


text:
    ROYALTY HOLDING COMPANY et al. v. Henry D. McKINLEY et al.
    No. 502.
    Circuit Court of Appeals, Tenth Circuit.
    June 24, 1931.
    J. M. Hervey, of Roswell, N. M., for appellants.
    Roberts, Brice & Sanchez, of Santa Fé, N. M., for appellees.
    Before LEWIS and PHILLIPS, Circuit Judges.
   PER CURIAM.

Appeal dismissed June 24, 1931, per stipulation.


text:
    Ex Parte ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Petitioner. Ex Parte LONDON AND LANCASHIRE INSURANCE COMPANY, Petitioner. Ex Parte NATIONAL RESERVE INSURANCE COMPANY, Petitioner.
    Nos. 363-365.
    Circuit Court of Appeals, Eighth Circuit.
    April 21, 1931.
    William R. Gilbert and Harry C. Willson, both of St. Louis, Mo., for petitioners.
    P. H. Cullen, of St. Louis, Mo., opposed.
   PER CURIAM.

Petitions for leave to file petitions for mandamus are presented in the above cases for the purpose of compelling allowance of appeals by Judge Davis from the orders mentioned in said petitions for leave. This court being of opinion that the orders in question are not final, in an appealable sense, and that appeals therefrom would-be premature, the petitions for leave and each of them will be denied.


author: PEE CURIAM.'

text:
    Albert Joseph SCHMITT, Appellant, v. UNITED STATES of America.
    No. 9009.
    Circuit Court of Appeals, Eighth Circuit.
    May 6, 1931.
    Neil Hughes, of Minneapolis, Minn., for appellant.
    Lewis L. Drill, U. S. Atty., of St. Paul, Minn.
   PEE CURIAM.'

Appeal dismissed, without costs to either party in this court, on motion of appellee, under rule 24.


text:
    J. P. TACKETT, Trustee in Bankruptcy, Appellant, v. Hiram HARRIS et al., Appellees.
    No. 5455.
    Circuit Court of Appeals, Sixth Circuit.
    June 30, 1931.
    Stanley Reed, of Ashland, Ky. (Browning & Reed, of Ashland, Ky., and J. B. Clarke, of Prestonsburg, Ky., on the brief), for appellant.
    A. J. May, of Prestonsburg, Ky., for ap-pellee Weddington.
    C. B. Wheeler and J. C. Hopkins, both of Prestonsburg, Ky., for appellee Hiram' Harris.
    Before DENISON and HICKS, Circuit-Judges, and RAYMOND, District Judge.
   PER CURIAM.

This case turns upon the question of fact whether certain notes signed by the directors of the corporation were, as between the parties, so intended to be and so treated as the indebtedness of the corporation that, when the then solvent corporation paid them out of its surplus profits, there was no implied contract on the part of the signers to repay these amounts to the corporation. The majority of the court concludes that no such implied contract arose. No object is seen in recording the exhaustive discussion and analysis of the proofs which have been necessary to reach this conclusion.

This result applies to the first two notes. The remaining three notes were paid under different conditions; but the directors have contributed and advanced more than enough to meet their liability on these later notes, if liability there was.

Accordingly, the decree of the District Court is affirmed.


text:
    UNITED STATES of America, Appellant, v. Eugene L. COOPER, Appellee.
    No. 6474.
    Circuit Court of Appeals, Ninth Circuit.
    May 25, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
   PER CURIAM.

Pursuant to stipulation of counsel for respective parties, it is ordered that the appeal herein be dismissed; mandate forthwith.


text:
    UNITED STATES of America v. Jeff Artburay DOBBS.
    No. 477.
    Circuit Court of Appeals, Tenth Circuit.
    April 30, 1931.
    John M. Goldesberry, U. S. Atty., of Tulsa, Okl.
    Wilkerson & Brown, of Pryor, Okl., for appellee.
    Before LEWIS, PHILLIPS, and Me-DERMOTT, Circuit Judges..
   PER CURIAM.

Appeal dismissed April 30, 1931, on motion of appellant.


text:
    UNITED STATES of America v. Mitchell W. DUGAN.
    No. 512.
    Circuit Court of Appeals, Tenth Circuit.
    July 3, 1931.
    L. E. Wyman, Asst. U. S. Atty., of Topeka, Kan.
    Goldman. & Daley, of Kansas City, Mo., for appellee.
    Before LEWIS and PHILLIPS, Circuit Judges.
   PER CURIAM.

Appeal dismissed July 3,1931, on motion of appellant.


text:
    UNITED STATES of America, Respondent, v. Louis GOLDSTEIN, Appellant.
    No. 429.
    Circuit Court of Appeals, Second Circuit.
    June 24, 1931.
    David Haar, of New York City, for appellant.
    George Z. Medalie, U. S. Atty., of New York City (Seymour D. Altmark, Asst. U. S. Atty., of New York City, of counsel), for the United States.
    Before MANTON, SWAN, and CHASE, Circuit Judges.
   PER CURIAM.

Judgment of conviction affirmed.


text:
    UNITED STATES of America v. Addie HOLDEN.
    No. 505.
    Circuit Court of Appeals, Tenth Circuit.
    June 24, 1931.
    L. E. Wyman, Asst. U. S. Atty., of Topeka, Kan.
    H. W. Hart, of Wichita, Kan., for appel-lee.
    Before LEWIS and PHILLIPS, Circuit Judges. ■
   PER CURIAM.

Appeal dismissed June 24, 1931, on motion of appellant.


text:
    UNITED STATES of America, Appellant, v. MINNESOTA AND MANITOBA RAILROAD CO. et al.
    No. 9227.
    Circuit Court of Appeals, Eighth Circuit.
    June 19, 1931.
    Lewis L. Drill, U. S. Atty., of St. Paul, Minn., and Donald D. Harries, Sp. Asst. U. S. Atty., of Duluth, Minn.
    Hector Baxter, of Minneapolis, Minn., and E. H. Morphy, of St. Paid, Minn., for appellees.
   PER CURIAM.

Appeal docketed and dismissed, without costs to either party in this court, on motion of Appellant and stipulation of parties.


text:
    UNITED STATES of America, Libelant-Appellee, v. 112 BALES CONTAINING WOOL, Marked CC and Numbered 170 to 281 Inclusive, Robert W. A. Wood, Claimant-Appellant.
    No. 395.
    Circuit Court of Appeals, Second Circuit.
    June 1, 1931.
    Wise, Whitney & Parker, of New York City (Carl E. Whitney and Francis C. Low-thorp, both of New York City, of counsel), for appellant.
    George Z. Medalie, U. S. Atty., of New York City (Harry C. Herman, Asst. U. S. Atty., of New York City, of counsel), for the United States.
    Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
   PER CURIAM.

Judgment affirmed.


text:
    UNITED STATES of America, Plaintiff-Appel-lee, v. Joseph PERLITCH, Defendant-Appellant.
    No. 422.
    Circuit Court of Appeals, Second Circuit.
    June 1, 1931.
    Sustiek So Seigle, of Brooklyn, N. Y. (Joseph Gr. M. Browne, of Brooklyn, N. Y., of counsel), for appellant.
    Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg and J. Bertram Wegman, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for the United States.
    Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
   PER CURIAM.

Judgment affirmed.


text:
    UNITED STATES of America, Appellant, v. Julia Ann POTTER et al.
    No. 9084.
    Circuit Court of Appeals, Eighth Circuit.
    May 6, 1931.
    William L. Vandeventer, U. S. Atty., and Claude E. Curtis, Asst. U. S. Atty., both of Kansas City, Mo.
    George P. Anderson, of Kansas City, Mo., for appellee.
   PER CURIAM.

Appeal dismissed, without costs to either party in this court, on motion of appellant and stipulation of parties.


text:
    UNITED STATES of America, Appellant, v. Capitola TULLY.
    No. 9242.
    Circuit Court of Appeals, Eighth Circuit.
    June 30, 1931.
    Charles E. Sandall, U. S. Atty., of Omaha, Neb.
    George B. Thummel, of Omaha, Neb., for appellee.
   PER CURIAM.

Appeal docketed and dismissed, without costs to either party in this court, on motion of appellant and consent of appellee.


text:
    UNITED STATES of America, Appellant, v. Edward W. WAGGONER, Appellee.
    No. 6526.
    Circuit Court of Appeals, Ninth Circuit.
    July 20, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges.
   PER CURIAM.

Pursuant to motion of appellant for dismissal of the appeal herein, and good cause therefor appearing, ordered appeal dismissed; mandate forthwith.


text:
    UNITED STATES of America v. S. WAGONER, Guardian of Walter C. McFarland, Inc.
    No. 476.
    Circuit Court of Appeals, Tenth Circuit.
    April 30, 1931.
    John M. Goldesberry, U. S. Atty., of Tulsa, Okl.
    Tom W. Garrett, of Oklahoma City, Okl., for appellee.
    Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges.
   PER CURIAM.

Appeal dismissed April 30, 1931, on motion of appellant.


text:
    Galen H. WELCH, United States Collector of Internal Revenue for the Sixth District of California, Appellant, v. John W. MOTT, Trustee in Bankruptcy of the Estate of L. P. McChesney, Bankrupt, Appellee.
    No. 6475.
    Circuit Court of Appeals, Ninth Circuit.
    May 27, 1931.
    Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
   PER CURIAM.

Pursuant to stipulation of counsel for the respective parties, ordered appeal in this cause dismissed; mandate forthwith.


text:
    WESTERN POWER, LIGHT & TELEPHONE COMPANY et al. v. CITY OF WOODWARD, OKLAHOMA et al.
    No. 443.
    Circuit Court of Appeals, Tenth Circuit.
    June 1, 1931.
    Howard W. Patton, of Woodward, Okl., W. R. Bleakmore and John Barry, both of Oklahoma City, OH., for appellants.
    J. B. Dudley, of OHahoma City, Okl., Y. Q. Caldwell, Jr., of Paris, Tenn., and C. W. Herod, of Woodward, OH., for appellees.
    Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges.
   PER CURIAM.

Appeal dismissed June 1,1931, per stipulation.


text:
    Ethel WITTE, Appellant, v. FRANKLIN FIRE INSURANCE COMPANY OF PHILADELPHIA.
    No. 8933.
    Circuit Court of Appeals, Eighth Circuit.
    May 25, 1931.
    I. J. Ringolsky, M. L. Friedman, William G. Boatright, and H. L. Jacobs, all of Kansas City, Mo., for appellant.
    William S. Hogsett, Murat Boyle, and Ralph E. Murray, all of Kansas City, Mo., for appellee.
   PER CURIAM.

Appeal [46 F.(2d) 894] dismissed, at costs of appellant, but without the taxation of the statutory attorney fee, per stipulation of parties.


text:
    UNITED STATES of America ex rel. August FERNANDEZ, Appellant, v. Benjamin M. DAY, Commissioner of Immigration at the Port of New York, Appellee.
    No. 417.
    Circuit Court of Appeals, Second Circuit.
    June 8, 1931.
    J. Waisman, of New York City, for appellant.
    Ernest Lappano, of New York City, for appellee.
    Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
   PER CURIAM.

Order affirmed on the opinion in United States ex rel. Claussen v. Day, 279 U. S. 398, 49 S. Ct. 354, 73 L. Ed. 758.


author: STEPHENSON, Circuit Judge.

text:
    Aleck ALEXANDER, Appellant, Cross-Appellee, v. UNITED STATES of America, Appellee, Cross-Appellant.
    Nos. 73-1816, 73-1850.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 10, 1974.
    Decided July 22, 1974.

      Stanton R. Koppel, Atty., Dept, of Justice, Washington, D. C., for the U. S.
    James W. Jeans, Kansas City, Mo., for Alexander.
    Before BRIGHT, STEPHENSON and WEBSTER, Circuit Judges.
   STEPHENSON, Circuit Judge.

The central, issue to be determined on this appeal is whether the statutory disability compensation plan for commissioned officers of the Public Health Service is an exclusive remedy which precludes an action for medical malpractice under the Federal Tort Claims Act. The trial court held that the statutory benefits were not such an exclusive remedy and awarded damages to plaintiff Alexander. We disagree and reverse that determination.

Plaintiff Alexander, a commissioned officer of the Public Health Service (PHS), underwent elective surgery at a military hospital on March 20, 1968 for removal of his gall bladder. He was entitled to such free medical care as a member of the “uniformed services,” as defined in 10 U.S.C. § 1072(1) (1970).

During the course of the operation, an anesthesiologist’s tube placed in Alexander’s trachea malfunctioned, either because of improper insertion or inadequate monitoring by the supervisory personnel. As a result of this negligence, Alexander suffered numerous physical infirmities, including temporary blindness and paralysis, residual uncoordination of the feet and upper extremities, and permanently defective vision.

Due to these injuries, Alexander was rated 100% disabled and placed on temporary disability retirement status for a period of approximately two and one-half years, pursuant to the procedures specified in 10 U.S.C. §§ 1205, 1210, 1211 (1970). During that time he was paid disability compensation in excess of $44,000 under the Career Compensation Act, see 10 U.S.C. §§ 1202, 1401, 42 U. S.C. § 213a (1970). On August 6, 1972, Alexander was recalled to active duty with the PHS as provided in 10 U.S.C. §§ 1210, 1211 (1970).

In his complaint, plaintiff grounded jurisdiction on 28 U.S.C. § 1346(b) (1970) and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1970). He claimed damages for the alleged negligence of the doctors and other medical personnel who had participated in his anesthetization. The government argued that Alexander’s suit should be dismissed on the basis of the principles established in United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966) and Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We agree.

In Demko, supra, the Supreme Court considered the question of whether an injured federal prisoner, having received disability compensation under a specific federal statute, could maintain an action for damages under the Federal Tort Claims Act. The Court denied relief under the Act, stating that “where there is a compensation statute that reasonably and fairly covers a particular group of workers, it presumably is the exclusive remedy to protect that group.” Id. at 152 of 385 U.S., at 384 of 87 S.Ct.

In so holding, the Court expressly rejected the argument, made by Alexander in the case before us, that a compensation statute will be presumed to be a non-exclusive remedy in the absence of specific language to the contrary. Id. The Court noted that generally workmen’s compensation laws are considered to be exclusive substitutes for common law tort remedies and cited two cases, Patterson v. United States, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971 (1959), and Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051 (1952), as having established a “general rule” of presumed exclusivity. Id. at 151 of 385 U.S., 87 S.Ct. 382. See also Feres v. United States, 340 U.S. 135, 144, 71 S.Ct. 153, 95 L.Ed. 152 (1950). As pointed out in Demko, the lower federal courts have extended this principle to include other statutory systems. Id. at 151 n. 4 of 385 U.S., 87 S.Ct. 382.

The application of the Demko presumption of exclusivity to any particular fact situation is dependent upon satisfying two critical requirements. First, the individual whose claim may be barred under the principle of exclusivity must be covered by a compensation plan. Second, that plan must provide comprehensive benefits to the injured party. 385 U.S. at 152-153, 87 S.Ct. 382.

We believe that both tests are met in this ease. Clearly, Alexander’s entitlements under 10 U.S.C. §§ 1071-1085, 42 U.S.C. § 213a(a) (2) (1970), including free medical care and disability payments, constitute coverage for purposes of Demko. This distinguishes the present case from United States v. Mun-iz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963), in which neither plaintiff was covered by a compensation system. Id. at 160, 83 S.Ct. 1850. Furthermore, there can be little doubt that this system “reasonably and fairly” affords relief to those within its purview. Since the health and disability coverage extended to commissioned officers of the PHS is, by statute, made identical to that received by members of the armed forces, 10 U.S.C. §§ 1071-1085, 1201-1212, 42 U.S.C. § 213a (1970), the Supreme Court’s approval of the military compensation plan in Feres v. United States, 340 U.S. 135, 144, 71 S.Ct. 153, 95 L.Ed. 152 (1950), compels us to find this system comprehensive with regard to Alexander. In addition, these benefits compare quite favorably with those available under two other plans which the Supreme Court has deemed to be exclusive remedies: the Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq. (1970), in Johansen v. United States, supra, 343 U.S. at 439-441, 72 S.Ct. 849, and the Federal Prison Industries Fund, 18 U.S.C. § 4126 (1970), in United States v. Demko, supra, 385 U.S. at 152-153, 87 S.Ct. 382.

Thus, in summary, we believe that the rationale of exclusivity that the Supreme Court expressed in Demko is fully applicable to this case. Because Alexander was covered by a comprehensive compensatory plan at the time of his injury, we hold that his tort recovery was improper. By permitting him to recover, the trial court in effect granted Alexander greater rights than government employees, prisoners, or membérs of the armed forces. Absent a showing of congressional intent to endow PHS officers with special benefits, the presumption of an exclusive remedy must stand.

Furthermore, we disagree with the trial court’s determination that Alexander’s suit was not barred by the specific rationale of Feres v. United States, supra, as it relates to suits under the Federal Tort Claims Act by members of the armed forces. In our view, the analogy between Feres and the present case is so close that it compels the same result.

In Feres, the Court considered three claims under the Federal Tort Claims Act, two of which involvéd medical malpractice by military doctors as in the instant case. 340 U.S. at 137, 71 S.Ct. 153. In holding these suits to be barred, the Court emphasized that the servicemen were already covered by a system of “simple, certain, and uniform compensation for injuries or death.” Id. at 144, 71 S.Ct. at 158. As pointed out above, commissioned officers of the PHS are covered by the same compensation system that applies to members of the armed services.

To further justify their holding, the Court took note of the extraordinary relationship that exists between the members of the armed forces and the government. Id. at 143-144, 71 S.Ct. 153. In United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), the Court elaborated on this point, stating that tort claims arising out of activity incident to military service were held barred in Feres due to

[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty * * *. Id. at 112, 75 S.Ct. at 143.

We are convinced that the relevant conditions of service in the Public Health Service are very similar to those in the armed forces and demonstrate an equally special relationship and need for discipline.

For example, the PHS is designated as one of the “uniformed services” along with the armed forces and the Commissioned Corps of the Environmental Science Services Administration. 10 U.S.C. § 1072 (1970). The PHS is organized along military lines, each officer grade having a statutorily stated military rank equivalent. 42 U.S.C. § 207 (1970). Regulations specify that failure to follow out orders of superior officers will result in disciplinary action. 42 C.F.R. §§ 21.261-84 (1973). In addition, PHS officers are assigned to active duty status and are subject to recall to duty during any period of leave. 42 C.F.R. §§ 21.88-91 (1973). These similarities to military service illustrate how the concern voiced in Feres regarding the effect of tort suits on discipline and internal structure apply with equal force to the Public Health Service.

Counsel for the plaintiff argues, however, that Feres is inapplicable here because the injury complained of was not sustained “incident to service.” In the development of the Feres rationale, this element has been the determinative factor in numerous cases. See, e. g., Hall v. United States, 451 F.2d 353 (CA1, 1971); Lowe v. United States, 440 F.2d 452 (CA5), cert. denied, 404 U.S. 833, 92 S.Ct. 83, 30 L.Ed.2d 64 (1971); Shults v. United States, 421 F.2d 170 (CA5, 1969); United States v. Lee, 400 F.2d 558 (CA9, 1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969); Buckingham v. United States, 394 F.2d 483 (CA4, 1962); Bailey v. DeQuevedo, 375 F.2d 72 (CA3), cert. denied, 389 U.S. 923, 88 S.Ct. 247, 19 L.Ed.2d 274 (1967); United States v. Carroll, 369 F.2d 618 (CA8, 1966); Chambers v. United States, 357 F.2d 224 (CA8, 1966); Buer v. United States, 241 F.2d 3 (CA7, 1956), cert. denied, 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1957). See also Annot., 64 A.L.R.2d 679 (1959). But see Hale v. United States, 416 F.2d 355 (CA6, 1969). In our view, the facts and the ample authority from this and other circuits support a determination that Alexander’s elective surgery was incident to service for purposes of the Feres doctrine.

In the first place, PHS regulations clearly indicate that even when Alexander was in the hospital on sick leave, he was considered to be on active duty status, subject to recall. 42 C.F.R. § 21.91 (1973). This fact immediately distinguishes this case from Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), in which the plaintiff was on furlough when injured; and from United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), in which the plaintiff was injured by an army surgeon after his discharge from the service. See United States v. Lee, 400 F.2d 558, 560-561 (CA9, 1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969); Knight v. United States, 361 F.Supp. 708, 713 (W.D.Tenn.1972), aff’d, 480 F.2d 927 (CA6, 1973).

This court has, in the past, given a broad reading to the phrase, “incident to service.” For example, in Chambers v. United States, 357 F.2d 224 (CA8, 1966), Judge Mehaffey, writing for the court, indicated that as long as the serviceman was engaged in an activity “related to and dependent upon his military service” while “subject to military control,” any consequent injury would be “incident to service.” Id. at 229 & n. 4. Later that same year, we held that even when a military relationship is entered into at the choice of the plaintff, the status of being subject to “military courtesies and discipline” brings the activity within the “incident to service rule.” United States v. Carroll, 369 F.2d 618, 621 (CA8,1966).

In addition to these cases, two recent decisions from the Fifth Circuit are particularly relevant here. In Shults v. United States, 421 F.2d 170 (CA5, 1969), that court made it clear that malpractice committed upon a serviceman in a military hospital was incident to service even though he was on leave at the time he was admitted. The court stated:

It is obvious that the injured man could not have been admitted, and would not have been admitted, to the Naval Hospital except for his military status * * It inescapably follows that whatever happened to him in that hospital and during the course of that treatment had to be “in the course of activity incident to service.” Id. at 171-172.

Subsequently, the Fifth Circuit, in Lowe v. United States, 440 F.2d 452 (CA5), cert. denied, 404 U.S. 833, 92 S.Ct. 83, 30 L.Ed.2d 64 (1971), extended this rationale to include elective surgery performed upon a serviceman at the advice of military doctors.

Given the expansive view this court expressed in Chambers and Carroll with regard to “incident to service,” these two cases are especially persuasive. In the present case, as in Shults, Alexander was operated upon in a military hospital solely because of his employment status. By joining the PHS, he became subject to the privileges and limitations that attend that Service. He chose to avail himself of the service-related medical treatment. Clearly, under Shults, his operation was incident to his service as a PHS officer. Furthermore, as in Lowe, the fact that Alexander’s surgery was elective in nature does not alter the result. On these facts, we are convinced that the suit should have been decided on the basis of Feres.

Various damage-related issues were argued to this court on appeal. We do not consider those issues inasmuch as we have determined that this action should have been dismissed on the liability issue.

Reversed with instructions to dismiss at appellant’s costs.

      . See 42 U.S.C. § 213a(a) (2) ; 10 U.S.C. §§ 1202, 1401 (1970).

      . 28 U.S.C. §§ 2671-2680 (1970).

      . Plaintiff Alexander is the appellant in No. 73-1816 and the cross-appellee in No. 73-1850.

      . 10 U.S.C. § 1072(1) (1970) provides :
      “Uniformed services” means the armed forces and the Commissioned Corps of the Environmental Science Services Administration and of the Public Health Service.

      . 18 U.S.C. §4126 (1970).

      . We do not address ourselves, at this point, to the determination by the trial court that Alexander’s injury claim was not barred by Feres. We refer here to Feres only as evidence that the military-PHS coverage is considered to be a comprehensive compensation system.

      . Formerly, 5 U.S.C. §§ 751-794.