source: Caselaw Access Project

author: WILBUR, Circuit Judge.

license: Public Domain

text:
    FONG LUM KWAI v. UNITED STATES.
    No. 6203.
    Circuit Court of Appeals, Ninth Circuit.
    April 13, 1931.
    Charles B. Dwight, of Honolulu, Hawaii, for appellant.
    Sanford B. D. Wood, U. S. Atty., and John Albert Matthewman, Asst. U. S. Atty., both of Honolulu, Hawaii, and George J. Hatfield, U. S. Atty., and I. M. Peekham, Asst. U. S. Atty., both of San Praneisco, Cal.
    Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.
   WILBUR, Circuit Judge.

The appellant, having been ordered deported by the United States District Court for the Territory of Hawaii, appeals from the order of deportation. Appellant was admitted to Hawaii on November 14, 1923, as the Hawaiian bom son of a Chinese citizen, ■after consideration of his application for entry and application for his certificate of identity. The certificate requested was not issued, but notwithstanding that fact the proceedings upon his entry established prima facie his right to remain. Choy Yuen Chan v. U. S. (C. C. A.) 30 F.(2d) 516; Leong Kwai Yin v. U. S. (C. C. A.) 31 F.(2d) 738.

On November 17, 1928, an immigration inspector from the United States Immigration Service requested appellant to show his certificate of residence, and after ascertaining that he had no such certificate took him to the immigration office, and, with appellant’s consent expressly given, examined him upon the state of facts testified to by him upon his admission five years previously. His testimony was substantially the same as that given upon his entry. Thereafter two of the witnesses who had testified at the time of applicant’s entry were called into the office and re-examined upon the matters to which they testified upon appellant’s entry. Thereafter this proceeding for the deportation of applicant was inaugurated in the District-Court by filing a complaint on November 17, 1928, alleging: “ * * * That said Fong Lum Kwai, alias Fong Kock Tung, on or about the 14th day of November, 1923, did unlawfully obtain admission into the United States at the port of Honolulu by false and fraudulent representations and claim of United States citizenship made before the Immigration Officials at the port of Honolulu; and that the said Fong Lum Kwai, alias Fong Kock Tung, is not lawfully entitled to be or remain in the United States, in violation of the acts of Congress in such ease made and provided.”

Appellant entered a plea of not guilty. Upon the trial the immigration inspector testified that no certificate of residence or of identity had been issued to the appellant. It also appeared that the appellant was a laborer of Chinese descent. On cross-examination of the government inspector it was established that the appellant was admitted by Special Board of Inquiry, and on redirect examination the government produced its record showing such admission, which was introduced in evidence. At this stage of the proceeding the right of the appellant to remain in Hawaii was established. The government was desirous of overcoming this prima facie showing by the introduction of the record of the examination of the witnesses who had been called before the immigration authorities in 1928. It was held by the court that the transcript of this evidence was not admissible. The government was relying upon discrepancies between the testimony of the witnesses given at the time of entry in 1923 and statements made by the same witnesses in 1928, hut, this testimony having been excluded by the court, the district attorney was at a loss as to how to get this evidence before the court. If he called the witnesses he could not do so for the mere purpose of impeaching their testimony by contradictory statements and he was evidently fearful that upon the trial they would confirm their original testimony. And subsequent developments justified this fear. In this situation the judge decided that he would call the witnesses and question them and allow the attorneys for both sides to cross-examine. Upon the direct examination these witnesses confirmed and reiterated the testimony given by them in 1923. It was so stated in the opinion of the trial court, from which we quote as follows:

“Lau Yai and Eong Yiek in their testimony given before this Court adhered so closely to the evidence given by them in 1923 that their testimony in the present trial and that given in 1923 (Exhibit ‘A’) is held to be practically identical. * * *
“There was admitted in evidence in this ease as Exhibit ‘A’ the record of defendant’s application for original admission at the Port of Honolulu in 1923, containing defendant’s testimony and that of Eong Yiek, Lau Yai and Lau Tung Yat, his three witnesses. The testimony of Eong Yiek and Lau Yai at the present trial was practically identical with their 1923 testimony. The value of Lau Tung Yat as a witness has not been directly attacked, as the record shows that he has been throughout unavailable as a witness, his whereabouts being unknown and every intimation existing that he left the Territory several years ago.”

With reference to the testimony of the appellant the court made the following statement : “The Government’s ease having closed, the defendant elected not to take the stand and subsequently the court of its own motion called the defendant to the stand, where he gave evidence practically identical with the evidence he had given in 1923, gave an explanation of one minor .discrepancy in the 1923 statement, and denied making a certain statement in 1928 (inconsistent with his testimony in 1923 and at the pending heariqg), and upon this denial the court put in evidence defendant’s 1928 statement as Exhibit ‘D.’ ”

We quote these excerpts from the opinion of the trial judge as a convenient way of calling attention to the facts as shown by the evidence. At this juncture it will be noted that the witnesses called, not only failed to establish fraud in the proceedings for the entry of appellant, hut also again testified to the same facts upon which he had been originally admitted and which tended to establish the claim of the appellant that he was bom in Hawaii. Instead of showing fraud in the original entry of the appellant, the proceedings thus far tended to establish that there was no fraud whatever. In this dilemma the trial court “admitted these 1928 statements of Eong Yiek and Lau Yai as Exhibits ‘B’ and ‘C,’ ” and “put in evidence defendant’s 1928 statement as Exhibit ‘D.’ ” It is ,a fundamental rule of evidence that a party cannot call a witness fpr the sole purpose of impeaching him by inconsistent statements alleged to have been made by the witness. Hickory v. U. S., 151 U. S. 308, 309, 14 S. Ct. 334, 38 L. Ed. 170; Cyc. Fed. Proc., vol. 2, § 527. The only instances in which a party is permitted to introduce conflicting statements to destroy the probative effect of the testimony of a witness introduced by him is where he claims that he had been surprised by the adverse testimony of his witness and offers the conflicting statements to justify calling the witness and to eliminate, as far as possible, the effect of his .adverse testimony. Murray v. Third Nat. Bank (C. C. A.) 234 F. 481.

The purpose of this rule is to protect the party against a fraud perpetrated on him by a witness, and the utmost effect of the adverse statements is to eliminate the testimony of the witness. Upon an analysis of the discrepancies between the testimony of the witnesses who had been offered in support of appellant’s application in 1923 and the same testimony reaffirmed in 1929 upon the trial of this ease with the alleged discrepancies in the statements of these witnesses before the immigration authorities in 1928, the court arrived at the conclusion that the witnesses were unworthy of credit upon the trial because their evidence upon the trial varied from the statements made in 1928. It is, therefore, deduced as a conclusion that they were unworthy of credit in 1923, and consequently it is decided that appellant’s entry into the United States was fraudulently obtained.

Up to this juncture it will be observed that there was no affirmative evidence whatever of fraud. There is no evidence that the appellant was bom in any other place than Hawaii, no evidence that his father was not a resident and citizen of Hawaii, no evidence that his mother was not also a resident of Hawaii. Indeed, the testimony of the witnesses examined as given in 1923 and in 1929 at the trial, and their statements before the immigration authorities in 1928, were, not only entirely consistent with the appellant’s claim of citizenship, but tended to support that claim.

Over the objection of the appellant, records of the immigration authorities were admitted which tended to establish that five other Chinese had been admitted in Hawaii as having been bom to Ng Sh'e at the place and about the time of the birth of the appellant. These records were not incorporated in the transcript in their entirety, but it appears therefrom that Lee Kam Yau was admitted in 1922 as the son of Lee Hook Sing, alias Lee Yai Ngip, and mother Ng She, who died December 6, 1899, in Hawaii, and whose re- • mains were sent back to China. Lau Kwai Yin made the same statements about his mother. Siu Quan Leong, who was admitted January 25, 1923, gave the same facts concerning his mother. Lau Sam Kau, admitted August 9,1923, gave the same facts concerning his mother.

In considering the propriety of the admission of this evidence and its effect in the case at bar, it should be stated that the court recognized that the appellant should not be penalized because of the fraud perpetrated by others (Leong Kim Wai v. Burnett [C. C. A.] 23 F.[2d] 789), but held the evidence admissible to be considered among other facts and circumstances in the ease, “and the faet that apparently not less than six Chinese having been admitted as the sons of Ng She, who had, according , to this defendant, only two sons, is a circumstance of some significance to be considered with all the other circumstances as bearing upon the claim of right by the defendant to remain in the country.” The court also stated:. “It is a faet of which this court takes notice (and of which notice has heretofore been taken by the Ninth Circuit Court of Appeals) that during the incumbency of a former immigration inspector for the Port of Honolulu, 'the administration of the immigration laws in this territory * '* * was extremely lax’. Leong Kim Wai v. Burnett [C. C. A.] 23 F.(2d) 789; Lee Sai Ying v. U. S. [C. C. A.] 29 F.(2d) 108; Leong Kwai v. U. S., supra. Many scores of certificates were fraudulently issued in Honolulu during the period from 1921 to 1924. And while it is true that, in any concrete ease, the mere fact that numerous fraudulent entries have been made by persons other than the defendant cannot justify the exclusion of a particular defendant, nevertheless the value of any certificates issued- — or any ruling admitting Chinese — during the regime just referred to is correspondingly slight and, as a matter of common sense, it cannot require as much evidence to rebut the prima facie right growing out of these certificates of identity (or rulings admitting Chinese) as would be the case in other jurisdictions under different circumstances.”

It is apparent that the trial court was of the opinion that the weight of the prima facie presumption of the favorable decision by the Special Board of Inquiry at the time of the admission was to be determined in part by the evidence that such Board had connived at fraud, evidence of such connivance being proved by specific instances of such fraud, together with judicial notice that such frauds were perpetrated. It is undoubtedly true that, where a trial judge is properly advised of the fact that the immigration authorities had connived.with applicants for admission to admit as citizens persons who were not entitled to admission, it would tend to destroy the probative value of the findings of the Board, but to say that the court will take judicial notice of such fraud and upon such notice assume the probabilities to be in favor of the falsity of the Board’s findings rather than in favor of its validity is in effect to destroy its probative value, and to reverse the rule heretofore established that the findings of the Special Board are prima facie evidence of the right of the defendant. Nor do we think that a court is justified in taking judicial notice of such alleged fraud. It has been referred to in the opinions of this court, but such statements were based upon frequent presentation of such cases and in no instance upon judicial notice. If it is a fact that six Chinese persons were allowed, to enter Hawaii upon proof that they were the sons of a single mother and all bom about the same time, the mother having died shortly after the alleged birth, it would tend to discredit the Board of Special Inquiry and its findings. The question here, however, is, Were the records of the immigration authorities properly admitted over the objection of the appellant? He was not a party to these records so far as appears herein, he had nothing whatever to do with them and no knowledge of them. It is not even claimed that he was aware of the existence of these records or of the individuals who were allowed to enter thereon. They tend to impeach the perspicacity of the Special Board, but, in the absence of some evidence connecting the appellant therewith, the testimony as to him was incompetent. The government could not sustain the burden of showing fraud by the introduction of incompetent evidence nor by invoking judicial notice of misconduct on the part of the Special Board at about the time of the admission of the appellant. If these records were improperly admitted, and if the court was not justified in taking judicial notice of fraudulent misconduct on the part of the Special Board, nothing remains in this case to oppose the prima facie presumption of citizenship resulting from appellant’s admission by the Special Board other than some inconsistent statements made by appellant’s witnesses at a time when they were not under oath and had been called for examination without notice, as to statements made and information gathered some five years before in which they were not particularly interested and as to which they had had no opportunity to refresh their memory. It is sufficient to1 say of such discrepancies that however much they may provoke suspicion they prove nothing. None of these witnesses admits that he testified falsely or that he had been requested so to do. The utmost extent of their admissions is that, in so far as their statements were inaccurate, they were due to a lapse of memory. The trial court was undoubtedly justified in inferring that they had refreshed their memories by examining the records of their original testimony. It is probably true that their testimony given on the trial favorable to the appellant resulted from their examining the record of their testimony given five years previously. This, however, proves nothing. If we assume that they had no right to refresh their memory, a right which is uniformly accorded to all witnesses, the fact that they did so establishes nothing, and leaves the case of the appellant supported at least by the prima facie proof of his right to be in Hawaii.

Perhaps it should be said in addition that statements of witnesses taken in 1928 were inconsistent with their statements made in 1923. For instance, one witness who had testified in 1923 that appellant was the son of a certain man, was unable in 1928 to name the father, but on the trial he did so. Another witness testified that he had learned of the birth of the appellant in Hawaii by the statement furnished by appellant’s mother. In 1923 he had given the name of his informant as appellant’s father and upon the trial he also gave the name of appellant’s father and it was, of course, conceded that the mother was dead at the time the witness fixed as having received the information. It may be said that this ease narrows itself down to the question of whether or not the government can overcome the prima facie presumption established by evidence of the findings of the Board by merely showing that some of the witnesses who testified at that time had subsequently made statements inconsistent with their testimony. This, we think, cannot be done. In Wong Yee Toon v. Stump, 233 F. 194, 196, by the Circuit Court of Appeals of the Fourth Circuit] it is said: “After the certificate [of identity] is issued, it is our view that the burden is east upon the government, in ease a proceeding is instituted to attack it, to show by testimony which the law recognizes as evidence that it should be annulled before an order for deportation is warranted.”

This was cited with approval in our decision in Lum Man Shing v. U. S., 29 F.(2d) 500, 502, where this court held that the certificate of identity issued under rule 20 of the Buies of Immigration, Department of Labor, to a Chinese person who had entered the Hawaiian Islands at Honolulu, was sufficient prima face proof to establish the right of the holder to remain in the United States, the court stating: “ * * * The certificate is sufficient to make a prima facie case of appellant’s right of residence. Undoubtedly its efficacy may be wholly destroyed by showing that it was fraudulently obtained, and it may be that a record containing any substantial evidence tending to impeach its correctness, or to show that the holder’s status is other than what is certified, would be sufficient to warrant deportation if, as a result of such evidence, the court is not convinced of the defendant’s right to remain.”

In Choy Yuen Chan v. U. S. (C. C. A.) 30 F. (2d) 516, 517, supra, it was held that the favorable decision of the Board of Special Inquiry at the time of entry was also prima facie evidence of the right of the person so entering to remain. It was evidently the view of the court that the finding of the Board of Special Inquiry, which should have been followed by the issuance of the certificate of identity, was the equivalent thereof in a proceeding for the deportation of the person thus entering. In that case, quoting from the Japanese Immigrant Case, 189 TJ. S. 86, 23 S. Ct. 611, 47 L. Ed. 721, it was stated: “And in such a ease, as in all others, in which a statute gives a discretionary power to an officer, to be exercised by him upon his own opinion of certain facts, he is made the sole and exclusive judge of the existence of those facts, and no other tribunal, unless expressly authorized by law to do so, is at liberty to re-examine or controvert the sufficiency of the evidence on which he acted.”

Upon the authority of the Japanese Immigrant Case, supra, and Martin v. Mott, 12 Wheat, 19, 31, 6 L. Ed. 537, it was held that the decisión of the Board of Special Inquiry was prima facie correct, and was sufficient to establish his right to remain in the United States, “ * 6 * in the absence of a charge that he has committed some act which' justifies his deportation, or some affirmative proof upon the part of the government that he obtained admission fraudulently.”

In the Choy Yuen Chan Case, as in this, it was claimed that there was fraud in the determination of the Board of Special Inquiry because a witness, who had testified for the appellant upon his entry in the proceedings for deportation, upon being produced by the government and examined and cross-examined, developed some discrepancies between his former testimony and the testimony upon the deportation proceeding. Of this the court there said: “But such discrepancies in the testimony of a witness produced by the government to prove its own case were insufficient to prove that the appellant obtained admission to the United States by fraudulent misrepresentation, or that he was not born in Hawaii, and were insufficient to overcome the prima facie presumption created by the finding of the Board of Special Inquiry.”

This decision is authority for the proposition that the mere development of discrepancies on the part of the witnesses summoned by the government is insufficient to overcome the prima facie presumption which arises from the finding of the Board of Special Inquiry. This must be true, for the reasons we have herein stated, that at most such discrepancies would merely tend to nullify the affirmative testimony of the witnesses given in' the deportation proceedings.

In Leong Kwai Yin v. U. S. (C. C. A.) 31 F.(2d) 738, 739, the eases of Lum Man Shing v. U. S. (C. C. A.) 29 F.(2d) 500, supra, and Choy Yuen Chan v. U. S. (C. C. A.) 30 F.(2d) 516, supra, were followed by this court in an appeal from ‘a deportation order made by the District Court of the Territory of Hawaii. The only evidence offered to rebut the effect of the decision of the Board of Special Inquiry admitted in the Leong Kwai Yin Case, supra, was evidence that thirteen other children had been admitted as children of the same parents, whereas apparently these parents had only two children. It was held that this evidence was insufficient to rebut the presumption that he had a right to remain in the United States. It is said: “The decision of the Board of Special Inquiry, admitting the appellant, and his certificate of identity, are in nowise impeached for either fraud or error, and, if this appellant may be deported on such a record, there is no reason Why every other Chinese person admitted to the territory during the same period, because of his Hawaiian birth, may not be deported because of the laxity of the administration of the law, and for no other reason. In such a view we cannot concur.”

■ The only distinction between the ease at bar and the above cases is that, while in the Choy Yuen Chan Case discrepancies subsequently developed were held insufficient to rebut the prima facie presumption arising from the decision of the Board of Special Inquiry, and in Leong Kwai Yin v. United States, supra, evidence of other findings of the same Board of Special Inquiry in other proceedings for the entry of other Chinese inconsistent with the finding in the case of the applicant whose case is under consideration for deportation, were also held insufficient to rebut that presumption; in this case we have evidence of both discrepancies and of other entries which may have been fraudulent; but as neither one nor the other alone is sufficient to overcome the presumption, because neither the one nor the other tends to establish fraud, so in the ease at bar the sum of the two is equally ineffectual. Moreover, as we have said, in the case at bar evidence of such other decisions by the Board of Special Inquiry admitting other Chinese was objected to as incompetent, and this objection should have been sustained. In this connection it should be stated, perhaps, that in the ease of Young Mew Song v. U. S. (C. C. A.) 36 F.(2d) 563, cited by the trial court in its decision in this ease, a similar situation to that- involved in the case at bar was considered by us, but there appellant made no claim as to the effect of the proceedings at the time of his entry as prima facie evidence. There also it appeared that one of the witnesses who had testified at the time the applicant was admitted thereafter admitted that he had committed perjury in his testimony.

There was no evidence in this record to overcome the presumption arising from the findings of the Board of Special Inquiry.

Appellee cites Ng Fung Ho. v. White (C. C. A.) 266 F. 765, which was subsequently considered by the Supreme Court, Id., 259 U. S. 276, 42 S. Ct. 492, 66 L. Ed. 938, and reversed in part. He also cites our decision in Doo Fook v. U. S. (C. C. A.) 272 F. 860. In so far as the latter decision holds that the burden of proof imposed on the defendant by statute in a deportation case to show his right to remain in the United States is not shifted to the Government until the proof adduced on behalf of the defendant upon the hearing for his admission into the United States “satisfies the court of his lawful right to be and remain in the United States,” it must be held to have been overruled by the latter decisions above cited (Lum Man Shing v. U. S. [C. C. A.] 29 F. [2d] 500; Choy Yuen Chan v. U. S. [C. C. A.] 30 F.[2d] 516; Leong Kwai Yin v. U. S. [C. C. A.] 31 F.[2d] 738), for, as there held, the evidence adduced at the time of admission is for the information of the Board of Special Inquiry. It is their action thereon that raises the presumption in favor of the defendant. This is true, regardless of the insufficiency of the evidence to sustain its action. Without any exception in the cases brought to our attention the proof presented by the applicant, if believed, has been sufficient to establish the right of the applicant to enter where that right has been based on a claim of citizenship-as in the case at bar.

The case of Lee Hing v. Eagle (C. C. A.) 295 F. 642, was one dealing with the exclusion of an alien who claimed to be a citizen, and not with the deportation of a resident who claimed to be a citizen. Eone of these eases support the judgment of deportation.

Judgment reversed.


author: SAWTELLE, Circuit Judge.

text:
    LEE CHOY v. UNITED STATES.
    No. 6214.
    Circuit Court of Appeals, Ninth Circuit.
    April 13, 1931.

      Ray J. O’Brien, of Honolulu, Hawaii, and Herbert W. Chamberlin, of San Francisco, Cal., for appellant.
    Sanford B. D. Wood, U. S. Atty., and John Albert Matthewman, Asst. U. S. Atty., both of Honolulu, Hawaii, and George J. Hatfield, U. S. Atty., and I. M. Peckham, Asst. U. S. 'Atty., both of San Francisco, Cal.
    Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.
   SAWTELLE, Circuit Judge.

This is an appeal from an order of the United States District Court for the Territory of Hawaii ordering the appellant,. Lee Choy, alias Lee Uek Kwong, to be deported to the republic of China.

• Appellant is a Chinese person who entered the territory of Hawaii on June 12, 1923. He obtained admission on the ground that he was a native-born citizen of Hawaii who had left the said territory on July 27, 1900, on the steamship Rio de Janeiro with his mother, Mrs. Ching Shee, a brother, and a sister. On September 17,1923, a certificate of identity; signed by Richard L. Halsey, at that time chief immigration official in the territory, was issued to appellant.

On June 2, 1927, appellánt was examined by the immigration authorities of Hawaii regarding his right tó be in the United States. On that day, George A. Erbs, an immigration inspector, met appellant at the Aala Market and asked him for his certificate of identity. Appellant did not have it with him, whereupon Inspector Erbs accompanied him to his home, where appellant gave the certificate to the inspector who kept it. Thereafter, appellant was arrested and charged with obtaining admission into the United States by false and fraudulent representations and claim of United States citizenship. The ease was called for trial April 12, 1929, and the defendant entered a plea of not guilty.-

At the trial, the minutes of the meeting of the Board of Special Inquiry in 1923, relative to the issuance of certificate of identity to appellant, was introduced in evidence as United States Exhibit A. The record of the testimony given by the appellant just before he was arrested in June, 1927, and that on one Lee On were admitted as United States Exhibit B over the objection of appellant. Appellant objected to the said testimony on the ground that it was an ex parte statement and a hearsay statement taken without the presence of the appellant.

Inspector Erbs testified that three other persons: to wit, Lau Tin Ko, admitted September 25, 1913; Lau Tin Hoo, admitted June 24, 1916; and Auyoung Chuck Nam, admitted March 8, 1923, were admitted as Hawaiian bom, and all claimed departure from Hawaii with Ching Shee on the steamship Rio de Janeiro which sailed July 27, 1900. This witness testified that the departure manifest showed that one “Mrs. Ching Shee,” two children, and one infant left on the said steamer on that date, and that the manifest showed only one female and only one child.

Over the objection of appellant and with exception duly noted, the following was admitted in evidence: ' the complete immigration records of Lau Tin Ko (United States Exhibit C), Lau Tin Hoo (United States Exhibit D), and Auyoung Chuck Nam, (United States Exhibit E), the three previously entered alleged children of Mrs. Ching Shee; also, the testimony of A. E. Mott-Smith, former Secretary of the territory, that he had issued Hawaiian birth certificates to Lau Tin' Ko and Lau Tin Hoo, on the application of their alleged father, Lau Moon.

Lau. Jin, witness for the appellant, testified that he (the witness) had lived in Hawaii for thirty-eight years and knew appellant and his family before they all went to China in 1900; that he had seen and recognized appellant and his father in China about twenty years later, but that he had never seen appellant in the meantime; that he had seen and recognized appellant about three years before. The government, over appellant’s objection, introduced into evidence (United States Exhibit G) statements made and signed by the witness upon his arrival in Honolulu, September 23, 1922..

Chu Ming, interpreter when appellant was examined by the immigration officials on June 2,1927, testified that appellant never signed the record of his testimony taken just before his arrest (United States Exhibit B), but that he signed only the shorthand notes as taken down by the stenographer. The testimony was never read over to him, and, when appellant signed the shorthand book, the contents were not translated back into Chinese for him.

Appellant moved to strike United States Exhibits A, B, D, C, and E, motion was denied, and exceptions noted. At the conclusion of the trial the court found “that the said Lee Choy, alias Lee Uck Kwong, did not establish by affirmative proof to the satisfaction of this court his lawful right to remain in the United States, and is found to be a person of the Chinese race and of Chinese descent who is an alien, bom without the United States” and ordered his deportation. From which order appeal is taken.

The certificate of identity was prima facie evidence of the right of the appellant to be and remain in the United States until overcome by proof tending to establish that the same was issued improvidently or was fraudulently obtained. Leong Kwai Tin v. United States, 31 F.(2d) 738 (C. C. A. 9).

The government sought to overcome this prima facie case of the appellant by the introduction of certain records above referred to in order to show fraud on the part of the appellant in securing the certificate. Exhibit A, which contains the application of the appellant, Lee Choy, when he made application, for admission to the United States in June, 1923, and in which appellant claims a departure record of Mrs. Ching Shee, two children and an infant on the steamship Rio de Janeiro on July 27, 1900, was referred to by counsel for the government in the examination of George A. Erbs, one of the government witnesses, and the witness was asked “if any other Chinese persons were admitted to this country at this port (Honolulu) on that departure record.” To this question an objection was interposed and overruled, the court stating: “While the court is not going to permit this line of questioning on the theory that other records must be excluded, I am going to permit it to go in for what it is worth, to be considered with all the other evidence in the ease.”

The witness replied to the question in the affirmative and gave the names of Lau Tin Ko, Lau Tin Hoo, and Auyoung Chuck Nam.

Exhibit-B, as above stated, is a record of the testimony given by appellant just before he was arrested in June, 1927, and the testimony of Lee On. The objection to the testimony of Lee On was on the ground that said testimony of Lee On was an ex parte statement and a hearsay statement taken without appellant’s presence.

Exhibits C, D, and E above referred to contain the complete immigration records of Lau Tin Ko, Lau Tin Hoo, and Auyoung Chuck Nam, respectively.

The court erred in admitting the testimony of the witness Erbs with reference to the admission of the Chinese persons above referred to, and in admitting the testimony of the witness A. E. Mott-Smith with reference to the issuance of the certificates to Lau Tin Ko and Lau Tin Hoo, also in admitting in evidence said Exhibit B, containing the testimony of Lee On, and Exhibits C, D, and E containing the records of admission of the previously entered children of Mrs. Ching Shee. Fong Lum Kwai, alias Fong Kock Tung v. United States (C. C. A. 9th) 49 F.(2d) 19, in an opinion by Judge Wilbur this day handed down.

In view of the testimony of the Chinese interpreter that the testimony of appellant taken by the immigration officials in 1927 was never translated back into Chinese for him, but that he merely signed the book containing the shorthand notes of the stenographer present at the time testimony was taken, it is very doubtful whether that record is admissible. However, there was no objection-made on that ground. The objection made was that it was inadmissible because appellant was under illegal arrest, which objection is, of course, without merit.

In the opinion of the learned judge of the District Court he states: “The Government further introduced in evidence three-separate records of the Immigration Inspector’s Office (introduced as Exhibits ‘C’, ‘D’,. and ‘E’), showing that Lau Tin Ko, in February, 1914, Lau Tin Hoo, in September, 1916, Auyoung Chuck Nam, in May, 1923, had all secured admission into the United. States and received certificates of identity as the sons of (under the departure records of Ching Shee who left Honolulu July 27,. 1900, on the SS. ‘Rio de Janeiro.’ These-last three exhibits were, examined carefully by the Court, not for the purpose of visiting on the defendant the effects of fraud perpetrated by others, but for comparison with the defendant’s own record, for the purpose of carefully scrutinizing same ‘to the end that the exclusion and immigration laws may not be set at- naught.’ Leong Kim Wai v. Burnett [C. C. A.] 23 F.(2d) 789.”

In a later paragraph of the opinion we find this significant expression: “The discrepancies and inconsistencies in all this testimony leave the Court in a very skeptical frame of mind with regard to the defendant’s claims. These claims have the appearance of being spurious. And when the significant and controlling showing in Exhibits ‘C’ and ‘D’ (particularly the former) that Lau Tin Ko and Lau Tin Hoo were the bona fide sons of Mrs. Ching Shee (i. e., Mrs. Lau Moon) is considered, there is no other conclusion possible but that the defendant obtained entry into this country by misrepresentation.”

It thus appears that the court unconsciously allowed the erroneously admitted record to influence him in the consideration of the case. This is a striking illustration of the danger of getting into the record evidence not admissible under well-recognized rules. If these records were controlling in the decision of the case, it would seem that the defendant should be discharged from custody. In judicial proceedings the court is restricted in the reception of evidence to only such as meets the requirements of legal proof. In this casé, the testimony of many of the witnesses referred to was taken in a nonjudieial proceeding to which appellant was not a party, and hence was inadmissible against him.

Counsel for the government, in the addendum to his brief filed herein, contends that, inasmuch as the appellant Lee Choy testified, both at the time of his entry in 1923 and at the trial in the lower court, that he is one of the children that went to China with his mother, Ching Shee, on the steamship Rio de Janeiro, sailing from Honolulu July 27, 1900, and that two brothers, Lee You Sung and Lee Yup Yip, and a sister went with him, that therefore the testimony given by Lau Moon in 1913 relating to his wife Ching Shee and their children, Lau Tin Ko, Lau Tin Hoo, and a daughter, all of whom went with him to China on the said steamship in 1900, was admissible in evidence under the exceptions to the Hearsay Rule relating to declarations of deceased members of a family as to matters of pedigree. This contention does not seem to call for serious consideration, for the obvious reason that the evidence does not establish the fact that Lau Moon is dead. Testimony relied upon is that of the witness Erbs, which is as follows:

“Q. Do you know anything of the whereabouts of Lau Tin Moon, the alleged father of these boys? A. I believe he died.
“Q. Have you any evidence? A. The San Francisco record which was transmitted here some time ago said that he had died in China,” (Simply more hearsay.)

It is also contended that the testimony or declarations of said Lau Tin Ko and Lau Tin Hoo, who claim to be and were admitted as sons of said Lau Moon and Ching Shee, and who were shown to be somewhere on the mainland of the United States, come.under the exceptions to the hearsay rule also. The answer to the latter contention is that these witnesses at the time of giving their testimony were shown to have been vitally interested in proving that they themselves, and not the appellant, were sons of Lau Moon and Ching Shee, and hence are shown not to be qualified to make their declarations admissible under the necessity principle.

. “The declarant must be disinterested; that is, disinterested in the sense that the declaration was not made in favor of his interest.” Sugden v. St. Leonards, L. R. 1 P. D. 154; cited in Wigmore on Evidence, volume III, § 1429.

“In order to adhere as closely as possible to the policy of shutting out all vague, second-hand, and unauthenticated evidence, such exception is made in favor of proofs of declarations and reputation (of family history) only where the persons whose opinion and declarations are relied upon, besides being those most likely to be well informed as to the facts, were also, so far as appears, free from all possible inducement to misrepresent the truth themselves or from any danger of being misled by others so interested. * * * It is then received * * * because ordinarily, they could have no temptation to falsehood or misrepresentation on such a subject.” People v. Fire Ins. Co., 25 Wend. (N. Y.) 220; cited in Wigmore, supra, § 1482.

“In cases of pedjgree, (hearsay) is admitted, upon the ground of necessity, or the great difficulty, and sometimes, the impossibility, of proving remote facts of this sort by living witnesses, * * * there being no lis mota or other interest to affect the credit of their statement.” Ellicott v. Pearl, 10 Pet. 434, 9 L. Ed. 475, Story, J.; Wigmore, supra, § 1481.

The judgment of the lower court is reversed.


author: DENISON, Circuit Judge.

text:
    MILLS NOVELTY CO. v. MONARCH TOOL & MFG. CO.
    No. 5642.
    Circuit Court of Appeals, Sixth Circuit.
    April 20, 1931.

      Carl S. Lloyd, of Chicago, 111. (Arthur H. Stuart, of Chicago, 111., William R. Wood and Edmund P. Wood, both of Cincinnati, Ohio, Kirkland, Fleming, Green & Martin, of Chicago, 111., and Wood & Wood, of Cincinnati, Ohio,' on the brief), for appellant.
    Walter Murray, of Cincinnati, OMo (Murray & Zugelter, of Cincinnati, Ohio, on the brief), for appellee.
    Before DENISON, MOORMAN, and HICKS, Circuit Judges.
   DENISON, Circuit Judge.

Infringement suit upon two patents for coin controlled mechanically played instrument, one issued September 19, 1916, on application filed July 10, 1909, No. 1,198,860, to Lesley and Enz (hereafter called Enz) and one issued September 19, 1916, on application filed December 16, 1910, No. 1,198,861, to Lesley and Sehoen (hereafter called Sehoen).

The District Court’s opinion held that Enz was invalid for lack of invention; that Sehoen was valid and infringed; that the defense of laches was not good; and that the title,to Sehoen had failed through the effeet of bankruptcy proceedings. The biff was therefore dismissed by a single entry, making no recitals; and the plaintiff appeals, assigning as error mainly that Enz should have been held good and infringed and that the plaintiff’s title to Sehoen should have been sustained.

On the argument here, defendant presents several of the defenses urged below; appellant insists we should consider only the questions which the District Court decided against it. This is not the rule. Appeals in equity bring up the whole case (with certain inferences in favor of the decree below), and the decree below should be sustained if it was right for any reason. Linde Co. v. Morse Co. (C. C. A. 2) 246 F. 834, 837. It follows that we must consider all those defenses which might be good as against the relief otherwise to be given.

The patents had special practical referlenee to automatic pianos, playing by electrical means and set in motion by a coin in the slot. In 1920, the owner brought suit upon these two patents, and another, against Wurlitzer, and in 1926 they were held valid and infringed. (D. C. Ill.) 10 F.(2d) 812. In the same year, 1926, tMs suit was brought.

It is plaintiff’s theory that the Enz patent is generic and the Sehoen patent specific, and that defendant by the same structures has infringed both. The Sehoen form is the one which plaintiff has marketed and wMch has had the commercial acceptance which was important in leading the court below to conclude that the Sehoen patent covered a real inventive advance and was valid — this conclusion being reached and announced before the objection to plaintiff’s title to this patent was made. The two patents would expire at the same date; it is not suggested that any one has infringed or is likely tó infringe Enz by any device which would not also infringe Sehoen; and, so far as we observé, the commercial effeet of an injunction and liability for profits and/or damages would be the same whether based upon one or upon both patents. The question whether Enz involves invention over the prior art is not easy of decision. It involves careful consideration of several conflicting questions, and the decision would have little or no value as a precedent upon other patents. Having reached the conclusion, hereinafter stated, that plaintiff is entitled to relief upon the Sehoen patent, the questions arising under Enz now seem to us practically aeademie; and we prefer to leave them undecided. To effectuate this result, the bill as to Enz should be dismissed without prejudice. ■

The District Judge overruled the defense of laches. We think he was right. The defendant and its predecessors had been manufacturing devices, probably infringing, since some time before the Sehoen patent was granted. Even if plaintiff’s assignors knew of this, there was surely no obligation upon them to give the defendants notice of infringement, before the patent issued. To do so would be to invite interferences and other contests. Notice of infringement was given in 1916, promptly upon issue, and during the next four years the infringement continued and no action was taken. \ There is sufficient evidence that during'most of this period the owners of the patents were financially unable to undertake the burden of patent litigation. Much of the period was also during the war, when such litigation was rightly discouraged. The patentees had given their notice, they had not withdrawn it, and, during- that period, the defendants continued their infringement at their peril. In 19-20 further notices of infringement were served, and, as in the former instance, defendants paid no attention whatever. A suit, serving as a test, was promptly begun; and there is no complaint of any unreasonable delay in its prosecution. On the termination of that suit, this one was begun at once.

The right to an accounting of damages in equity is given by the statute in a permissive way. The court of equity will exercise its discretion in granting an accounting as well as in passing upon a preliminary injunction, and will consider all the respective equities of the parties. This is well settled; but for refusing an injunction' upon final hearing when the patent has still a substantial term to run, when the legal title to the monopoly and its infringement by defendant have been finally established and when there has been no misleading of defendant, akin to fraud, we find no precedent in the Supreme Court or in this court. Some of the reasons which move a court of equity in passing, even finally, on equitable rights do not apply; the question is merely of an equitable remedy for a legal right. We have not been referred to or found any very satisfactory discussion of the problem; but it is sufficient for the purpose of this ease to say that the record does not show such laches as to justify even the denial of the usual accounting. The facts above recited sufficiently excuse whatever delay there was. Alliance Co. v. De Vilbiss Co. (C. C. A. 6) 41 F.(2d) 668, 670; Kittle v. Hall (D. C.) 29 F. 508.

Defendant does not point out any special injury to it coming from the delay and tending to operate as an estoppel, except that, in 1920, its manager died, leaving no one in the business who was familiar with the history of the art and might have known about or been able to find anticipation. When he received the notice of infringement in 1916, and again in 1920, he apparently did nothing to prepare or preserve any defense. We cannot regard this event as magnifying delay into estoppel.

The only remaining question as to patent validity rests in some belated depositions as to the Schoen escapement device, tending to show prior invention or two years’ prior use. Without considering the motion to strike out these depositions because taken without authority, the District Court held that they did not sufficiently establish either defense. We have reviewed the evidence and we agree with this conclusion. The proofs only attempt to carry the use back just beyond the critical two-year point, and certainty as to time is therefore particularly essential. The witnesses fixed the time with reference to certain events unrelated to this subject, and the time of these events is well enough established; but that the use in question occurred before these events is, after all, a matter of unconfirmed recollection. This use is also categorically denied by witnesses who should have known of it. The same comments apply generally to the proofs of prior invention; and, in addition, Lesley carries the invention by himself and Schoen far enough back to avoid the alleged priority in others. His testimony tends to show a sufficient reduction to practice, and a fair reason for suspending manufacture upon this form. It is as convincing as that on the other side. The criticisms made against it are fairly well met.

We come now to the ground upon which the court below based its dismissal of the case under the Schoen patent. Schoen, December 16, 1910, became an applicant for this patent, jointly with Lesley, and the Patent Office records continued to show his joint interest until the patent was issued to them both, September 19, 1916. On April 14, 1915, Schoen was adjudged an involuntary bankrupt, and thereupon (the exact date is not shown) filed his schedule of personal property assets, in which under the heading “Patents, Copyrights and Trademarks, etc.,” he said “None.” He was discharged in bankruptcy within the first year. Nothing appears as to any action by the trustee or creditor during the ten years before this suit was commenced or during its three years’ pend-ency, indicating any claim against this patent as a bankruptcy asset. It is fairly to be assumed that the trustee was discharged many years ago. Lesley and Schoen -sold the patent to plaintiff while this suit was pending, and, in effect, showed this by supplemental biU.

The situation presents a number of interesting questions which do not seem to be clearly covered by any authoritative decision. Is it necessary that the complainant in an equity suit for infringement have the complete, perfect, and entire legal title, or may one joint owner (who owns, not the whole of a half, but a half of the whole) maintain the suit if it sufficiently appears that there is no outstanding title to the remaining interest which could subject defendant to the danger of a further recovery in law or in equity? Where there has been a transfer of a pending application, not recorded or capable of record, and the patent issues to the inventor assignor, does he take the legal title in trust for the earlier assignee, or does he take no title, legal or equitable? If he takes the legal title as trustee, or even only the apparent legal title, and sells to a good-faith purchaser (as we might assume happened in this case), does the latter title prevail over the earlier unrecorded assignment ? To what extent do the present statutory provisions for recording assignments in-the Patent Office affect the character of the title or interest acquired by the assignee of the inventor patentee, as against the assignee by a pre-issue transfer? Prior to the 1926 amendment of section 70 of the Bankruptcy Act (tit. 11, USCA § 110), was the interest of an inventor in his invention, upon which he had made application for a patent, such “patent right” or “property” as passed by this section? See In re McDonnell (Shiras, D. J.) 101 F. 239; In re Dann (Seaman, D. J.) -129 F. 495; In re Myers-Wolf Co. (C. C. A. 3) 205 F. 289. These questions have received study, but we conclude they all may be passed by without decision, since we plaintiff, legal and equitable, is here suffithink that for another reason the title of the eient.

When property of the more ordinary type has been owned by a bankrupt, the complete title passes to the trustee, taking effect by relation upon the date of filing the bankruptcy petition, and it may well be assumed that a formal reconveyance by the trustee would be necessary to revest the title in the bankrupt. Some property, however, may carry such burdens that the trustee is not obliged to accept, but has an election to accept or reject, and the title does not pass to and vest to him in the same unconditional way. Where there is property of this character, it would seem that the title passes to the trustee upon condition subsequent. If he decides not to accept, the implied condition is broken and the title revests in the bankrupt —if indeed there has ever been more than a tender of the title. .In the event of such rejection, it is clear that no formal conveyance by the trustee to the bankrupt is required. Sessions v. Romadka, 145 U. S. 29, 39, 12 S. Ct. 799, 36 L. Ed. 609.

The interest of the inventor in an invention which is evidenced by pending application for a patent is very clearly of the class where the title which the trustee gets or may get, is burdened with such conditions that acceptance may be an injury rather than a benefit to the trust estate. Such application represents an inchoate and unproved right. It is practically a lawsuit brought by the inventor to persuade or compel the government to make a grant of a monopoly to which bethinks himself entitled. Any prosecution of the proceeding necessarily involves some expense, its proper prosecution a considerable expense, and that prosecution which may be and often is necessary, a very large expense, as well as months or years of delay. The patent to be received, judging by the average experience, may not be worth what it eosts to get it. Clearly, it is for the trustee to decide whether or not. he will take on this certain burden with its contingent benefit. If such a patent application is scheduled, and thus (or, probably, in any other way) comes to the trustee’s knowledge, it is dear that, before the amendment of 1926, He had a reasonable time in which to elect. His distinct manifestation, even though wholly by parol, that he thought best not to accept is sufficient to terminate his right of acceptance and to re-vest the title in the bankrupt. Sessions v. Romadka, supra; Dushane v. Beall, 161 U. S. 513, 515, 16 S. Ct. 637, 40 L. Ed. 791; Bank v. Lasater, 196 U. S. 115, 119, 25 S. Ct. 206, 49 L. Ed. 408; Smith v. Gordon, 6 Law Rep. 313, Fed. Cas. No. 13052; Taylor v. Irwin (C. C. Iowa) 20 F. 615. While we find no controlling or persuasive precedent, it seems obvious that if, with this knowledge, he does nothing toward acceptance or prosecution, but permits the estate to be wound up and himself to be discharged as trustee, the reasonable time allowed him for election has expired, with the result that the title again rests in the bankrupt. Whether upon sufficient cause shown the estate could be reopened — lacking the intervention of a good-faith purchaser — and the title be taken over by a successor trustee, need not be considered.

This brings us to the question as to what happens when, as here, the patent application is not scheduled, and, by supposition, the trustee does not otherwise know about it, but in ignorance thereof proceeds, after a year or two, to wind up the estate and be discharged. Upon the assumption that the title to this invention has been in him without his knowledge up until the closing of the estate, what becomes of it? It cannot remain in the trustee; he is dead. It is difficult to Conceive that it remains in the bankruptcy court, which has wiped this subject-matter off its books. The theory most favorable, as against complete ’ revestiture in the bankrupt, would seem to be that tbe failure to schedule or otherwise give notice to tbe trustee would extend tbe reasonable time witbin wbieb be or those entitled to do so might eleet whether tbe title should be taken over for tbe benefit of tbe bankrupt estate. If this right of election survives the trustee’s discharge, perhaps the creditors as a body may, within a reasonable time, demand the property and obtain it by reopening. Their reasonable time must, at the latest, start to run when they are chargeable with notice that the patent application existed at the time of bankruptcy. When the patent issues and becomes a public record, showing on its face that at the time of bankruptcy it was a pending application, the whole public, including these creditors, is chargeable with notice thereof; and if, within a reasonable time •after having such notice, no proceedings are taken to get control of the patent in the interest of the bankrupt’s creditors, the title must remain where it apparently is. Whatever might be a reasonable time, thirteen years is too long; and if conceivably some otherwise sufficient excuse could be made for that delay, an intervening sale to a good-faith purchaser, who bought an apparently perfect title, would be an unanswerable objection. In ease of any substantial delay, after the public notice given by the issue of the patent to the inventor and after the bankrupt estate is wound up and the trustee discharged, the burden must be upon the claimant to show circumstances to justify a reopening of the estate and .to show the nonexpiration of a reasonable time to claim the invention for the benefit of the bankrupt’s creditors. The suggestion that there might be some possible outside interest is one which a court of equity ought not to accept from a mere trespasser for the sake of enabling the trespasser to avoid the results of his unlawful action.

The result of this opinion is that the decree below should be reversed, with instructions to enter the usual interlocutory decree for injunction and accounting upon the Sehoen patent, and, as to the Enz patent, to dismiss the bill without prejudice.

       Woodmanse v. Williams (C. C. A. 6) 68 F. 489, is not inconsistent with the text. The later patent ■was found not infringed; the earlier one had expired, even before the decree below.

       We pass by the point that the objection based on the bankruptcy was so belated that it should not have been considered. Defendant’s failure to raise it much earlier seems without excuse.

       It is a familiar principle that where, through fraud or mistake, a grant is made to A which should have been made to B, A holds the legal title in trust for B, who has the equitable title; and that if A conveys his legal title to C, a purchaser with no notice of these rights, C’s legal and equitable title will prevail over B’s equity. Lacking the intervention of such a purchaser, a court of equity would compel A to convey to B. Upon this principle, it would seem that where a pending — or contemplated —patent application is assigned, but later the patent somehow issues to the inventor assignor, he would hold the legal title in trust for the earlier assignee, particularly as the monopoly was not in existence when the first assignment was made; and there are many cases applying this principle to rights in inventions. However, Gayler v. Wilder, 10 How. 477, 492, 13 L. Ed. 504, has been regarded as holding that in such case the inventor patentee takes nothing and the earlier assignee takes the full title. We find no reported discussion of this case attempting to reconcile it with the principle above stated, which was stressed in the dissenting opinion, and which of course is not denied, in the main opinion. The rationale of the opinion, in this respect, is not made very clear. Perhaps it should be deemed to rest upon the principles by which a deed with warranty will convey in law an after-acquired title. When the inventor assignor conveys the invention, identifies the pending application, makes the assignment recordable, and requests that the patent issue to the assignee, he has done all he can to vest in the assignee the full legal title. In a suit brought, after issue, against the pre-issue assignee by the inventor patentee, the plaintiff would be estopped to deny defendant’s title. If this be the rationale of Gayler V. Wilder, manifestly the decision would not apply where there had been no recorded assignment requesting issue to the assignee; and so Judge Blatchford thought. U. S. Co. v. Jewett (C. C.) 7 F. 869, 878. Philadelphia, W. & B. R. Co. v. Trimble, 10 Wall. 379, 19 L. Ed. 948, is not particularly helpful, because the only thing there decided is that a pre-issue assignee, whose legal title to the patent had been perfected by a post-issue conveyance from the inventor patentee, took also the legal title to an extension of the same patent, if he had the equitable right thereto. See cases cited in Individual Co. v. Osmun Co. (D. C. N. J.) 220 F. 335, 338.

       If it might somehow he important, as is suggested, that the bankrupt fraudulently concealed such an asset, this record does not justify any inference of such fraud. By the weight of legal opinion, according to the then latest edition of a standard authority (Walker on Patents [4th Ed.] p. 235), such an asset should not be scheduled. There would be no fraud in its omission. Inde'ed, in Sessions v. Romadka, supra, the only concealment was by a failure to schedule, and the assignee, whose refusal to accept or act was held to effect a revestiture, had been discharged as assignee some time before, and eo had no authority either to accept or rejeot.

       Proof was offered in this case showing that the trustee had refused to accept the Sehoen patent apr plication. We do not find it necessary to consider whether this proof should have been received and given effect.


author: DAVIS, Circuit Judge.

text:
    E. J. KELLER CO., Inc., v. READING CO.
    No. 4384.
    Circuit Court of Appeals, Third Circuit.
    April 6, 1931.
    Allen S. Olmsted, 2d, and Saul, Ewing, Remiek & Saul, all of Philadelphia, Pa., for appellant.
    Geo. Gowen Parry and Harold Cooper Roberts, both of Philadelphia, Pa. (White, Parry Schnader & Maris, of Philadelphia, Pa., of counsel), for appellee.
    Before DAVIS, Circuit Judge, and THOMSON and WATSON, District Judges.
   DAVIS, Circuit Judge.

This was a suit instituted by the Keller Company to recover from the defendant $4,-411.47, the value of 287 bales of) rags, alleged to have been lost through the negligence of the Reading Company, defendant herein, from a larger lot of 835 bales unloaded on defendant’s wharf September 8, 1924, by the steamship Dania. The negligence alleged was the failure of the defendant to maintain an adequate guard or exercise sufeient supervision over its wharf on which the bales were delivered to protect them from being stolen.

The theory upon which the suit was brought was that the defendant was a public warehouseman, and, when the rags were delivered on the wharf or pier, it became a bailee for hire, and as such was responsible for its negligence which resulted in the loss of the rags. The learned trial judge directed a nonsuit on the ground that the plaintiff had not shown a contract with the defendant as to the goods in question and on the further ground that the plaintiff had failed to show negligence on the part of the defendant.

There is no doubt that one who holds himself out as a public wharfinger or warehouseman and invites the public to use his wharf for hire is required to use due care in the protection of the property received by him and is liable for the loss of goods resulting from his negligence. But one of the fundamental questions here is whether or not the evidence shows that the defendant held itself out as a public warehouseman for hire and received and held the rags.

The plaintiff says that the defendant did so hold itself out, and cites as evidence the following portion of paragraph 2 of the complaint which was admitted in the affidavit of defense: “It (the defendant) owns and operates certain piers and wharves in the City of Philadelphia and is likewise a warehouseman and common carrier engaged in interstate and foreign commerce.” It further alleged that the defendant owned pier No. 27 North on the Delaware river, and held itself out as willing to receive and store import freight from the public on its pier and published a tariff of charges for such storage. This, as alleged, was denied by the defendant. It stated that it received and stored only import freight from foreign points in transit over its Imps to points beyond Philadelphia. This part of the affidavit of defense was also offered in evidence by the plaintiff, and, being in evidence, the court had to give due credit to all the allegations. Kull v. Mastbaum & Fleisher, 269 Pa. 202, 112 A. 631; Buehler v. United States Fashion Plate Co., 269 Pa. 428, 112 A. 632. The tariff referred to follows:

“Freight Received from Foreign Ports.
“Freight received from foreign ports will be held by the Reading Company at owner’s risk free of charge, when in transit via Reading Company to points other than Philadelphia stations (as enumerated in Item No. 1).
“When space on its piers is available, and until such space is needed for other purposes, the Reading Company will hold, free of charge, at owner’s risk, freight received from foreign ports, when in transit, for a period not exceeding 15 days, if piece or package freight; and for a period not exceeding 5 days, if bulk freight (excepting iron ore, manganese ore and chrome ore), time to be computed from the first 7 A. M. following the day the vessel completes discharging its cargo, and storage charges, if any, will cease when shipping instructions are furnished carrier. After the expiration of the free time, storage charges will be assessed as follows:
“For the first 10 days, or fraction thereof : 1% cents per 100 pounds.
“For each succeeding 10 days, or fraction thereof % cent per 100 pounds.
“In ease shippers desire import freight held, it will be necessary to make arrangements with the Freight Traffic Department of the Reading Company.”

The tariff clearly refers to import freight destined to points beyond Philadelphia routed over the defendant’s lines, and specifically provides that, in case shippers desire freight to be held by the defendant, it was “necessary to make arrangements with the Freight Traffic Department of the Reading Company.” It is admitted that no arrangements were made, or attempted to be made, for the storage of the freight for which plaintiff seeks to recover. The evidence establishes that the plaintiff unloaded the'freight on defendant’s wharf without notifying it and without making any arrangements whatever for it to remain there. Whether the plaintiff would ever ship any of the rags over the defendant’s lines and pay storage for them depended upon future contingencies. If they were sold to persons beyond Philadelphia and were shipped over the Reading lines, the plaintiff would necessarily under the law and provisions of the published tariff pay storage, but, if they were removed by truck from the wharf, the plaintiff would not pay any storage whatever. The freight contemplated by the tariff was freight which the defendant had received and which was in transit, not freight simply left on the pier without notice or agreement. The storage charges provided in the tariff were for freight received for transportation over defendant’s lines, not for freight which had not been received and accepted by it under the arrangements made necessary by its published tariff. Until such freight was delivered to"the defendant and arrangements were made for its storage, it was not subject to the tariff. Some 122 of the bales of rags left on the pier were taken away by the plaintiff without the payment of any storage whatever and without the .consent or even knowledge of the defendant, and all of the bales here in question could have been so removed, without payment of storage.

Some reference was made by counsel at the argument to a suit brought by the defendant against the plaintiff in the common pleas court of Philadelphia county for storage, but the only storage to which that suit referred was storage for the bales received by the defendant and actually shipped over its railroad. This has no bearing on the issue here involved. We do not think that the evidence shows that the defendant was a public wharfinger as to the bales lost so as to make it a bailee for hire. There was no express agreement from which such conclusion can be drawn, nor can it be implied from the evidence as a whole. Consequently, the defendant did not hold itself out expressly or by implication as a public wharfinger or warehouseman.

A shipper may not import merchandise, simply dump it down on a private wharf maintained by a common carrier for the storage of import freight in transit destined to some point over its lines, and thus make it liable as a bailee for hire for the loss of the merchandise without notifying the owner of the wharf of the presence of the freight, and without making some arrangement for its storage as required by its published tariff. No case has been cited as authority for such proposition of law, and it is so manifestly contrary to established principles of justice that we are persuaded that none can be cited.

The appellant was notified when the rags were unloaded on September 11, 1924, by the American Baltie Chartering & Shipping Company, agents for the steamship Dania, that, if they were not removed from the pier by 5 o’clock September 15, 1924, it would be compelled to store same at plaintiff’s expense or allow them to remain on the pier at its risk without further notice. It did not store them, but allowed them to remain on the pier at plaintiff’s risk. Neither.did the plaintiff do anything to protect them, but allowed them to remain on the pier unprotected. When the shortage was discovered) the plaintiff applied to the defendant to make good the loss, but it refused on the ground that it had never received the goods, that any goods belonging to x plaintiff on defendant’s pier were left there entirely at plaintiff’s risk, and that the defendant had not assumed, and would not assume, any responsibility for them. Yet the plaintiff allowed the rags to remain there two years longer without doing anything for their protection. The responsibility of a bailee for hire cannot be thrust upon a person without his knowledge or consent. There must be a delivery to him either actual or constructive. The evidence shows that there was neither as to the rags lost.

As to the negligence charged, the evidence shows that the defendant employed watchmen who were on duty 24 hours a day, maintained gates at the entrance to the pier, excluded unauthorized persons from it, and locked the .gates at 'night. This the defendant did to protect property delivered to it for transportation by rail, but it did not assume responsibility for nor exercise control over other property not so delivered to it, but left on the pier at owner’s risk. Over such property during business hours the owner exercised absolute control and did what he pleased with it.

If it can be said that the defendant was in any respect a bailee of property left on the pier, but not delivered to it for transportation over its lines, it was a gratuitous one, and was responsible for gross negligence only. There is no evidence of such negligence here. If there was any such negligence, it was not on the part of the defendant.

The judgment is affirmed.


author: MeDERMOTT, Circuit Judge.

text:
    EAST & WEST INS. CO. OF NEW HAVEN, CONN., v. FIDEL.
    No. 326.
    Circuit Court of Appeals, Tenth Circuit.
    April 6, 1931.
    J. 0. Seth, of Santa Ee, N. M., for appellant.
    Carl H. Gilbert and M. W. Hamilton, both of Santa Ee, N. M., for appellee.
    Before PHILLIPS and MCDERMOTT, Circuit Judges, and KENNEDY, District Judge.
   MeDERMOTT, Circuit Judge.

The plaintiff recovered in this action at law upon two fire insurance policies, and the company appeals. The ease was tried without a jury, and most of the facts were stipulated. The sole question presented is whether the policies, or either of them, cover a three-story brick building adjacent to and communicating with the two-story brick building described in the policies. The trial court found that the description in both policies was ambiguous, and that the parties intended to cover both the two-story older part as well as the three-story newer part of a building known as the Fidel Building.

The $20,000 policy was issued on June 12, 1927, while the three-story addition was in course of construction; the $5,000 policy was issued on February 12, 1928, some five months after the addition was completed. The description of the property in both policies is identical, and is:

“ * * * on the two story Composition roof brick building, * * * occupied as Feed and Variety Store and Warehouse on first floor and Hotel on the second floor, situated Southwest corner of Galisteo and Water Streets, Sanborn Map Page 5 Nos. 128-27-28' City of Santa Fe, State of New Mexico.”

The policy provided that the company should not be liable for damage occurring “while mechanics are employed in building, altering or repairing the described premises beyond a period of 15 days,” unless permission therefor was endorsed on the policy. Such an “Alterations and Repairs Permit” was endorsed on each policy, which reads:

“Permission granted for mechanics to be employed for more than fifteen (15) days in. making alterations, improvements and repairs to any building herein described, and in constructing additions or sheds which attach to and communicate with such building, and the insurance, if any hereunder, on such building, is hereby made to cover such alterations, improvements, repairs, attached and communicating additions and sheds, also building materials and supplies therefor, while contained therein or on the premises immediately adjacent thereto; and the insurance, if any, hereunder, on contents of ■any building herein described is hereby made to cover in such attached and communicating additions and sheds to said building; but any change in a fire wall, the removing or replacing of the joists or supports of a floor, or the construction of additional stories of any building herein described, when mechanics are employed for such purposes fqr more than fifteen (15) days at any one time, shall not be permitted by this policy, unless specifically included by endorsement attached hereto.”

The policy also contains the customary provision that no waiver shall be binding unless in writing and endorsed on the policy.

A fire occurred on June 19, 1928; an agreement was made to appraise the damage, and an award made finding that the two-story portion of the building was worth $23,-018.10 and was damaged to the extent of $1,-427.91; that the three-story portion |was worth $38,968.03 and was damaged to the extent of $27,766.55. The company offered to pay its share of the loss on the two-story building, but denied any liability on account of the loss on the three-story building. The parties have stipulated

“That if the policies of the defendant, Exhibits ‘A’ and ‘W to the complaint herein cover only the two-story building hereinabove described, plaintiff is entitled to recover only the amount heretofore tendered by plaintiff, to-wit: $1,368.10; that if both said policies cover both the two-story and three-story buildings, plaintiff is entitled to recover the sum of $14,718.33, and interest and costs of suit, that if Exhibit ‘A’ [the $20,000 policy] covers both the two-story building and the three-story building, and Exhibit ‘E’ [the $5,-000 policy] covers only the two-story building, plaintiff is entitled to recover $12,048.69 and interest, and costs of suit.”

The facts stipulated, together with the most favorable version of plaintiff’s testimony, disclose that on June 12, 1924, plaintiff owned a frontage of 120 feet on Galisteo Street, at its intersection with Water Street, in Santa Fe. On the comer, and extending south approximately 69 feet 1% inches, there was a two-story brick building with a composition roof, erected in 1922. The second story was used as a hotel; there were three ground floor rooms, the corner room being occupied by a variety ¿tore, the next room as a lobby or entrance to the hotel, and the south room as an office connected with a feed store, and in which there was occasionally stored small quantities of grain. The “Sanborn Map” referred to in the policies, was prepared by and for the convenience of the insurance companies doing business in Santa Fe. “Page 5, Nos. 128-27-28” thereof described the land on which this building, was located and approximately one foot, more.

On the south 52 feet of such frontage, in 1924, there was a one-story brick and adobe building occupied by a feed store, warehouse and laundry. On June 12, 1924, two policies were issued on these properties, one for $22,-000, which described the “two-story composition roof brick building” in the identical language as the policy in suit. The other was for $3,000 and its description reads:

“The one-story composition and earth roof adobe and brick buildings, including foundations, plumbing, electrical wiring and stationary heating, lighting and ventilating apparatus and fixtures therein; also aE permanent fixtures, stationary scales and elevators, belonging to and constituting a part of said buildings; occupied as grocery, feed store and laundry, situated Galisteo Street— Sanborns Map page 5 — Nos. 120 and 30, City of Santa Fe, State of New Mexico.”

“Sanborn’s Map page 5 — Nos. 120 and 30” describes the property — except for about one foot — on which was located the one-story brick and adobe building. In the spring of 1927 the plaintiff tore down the one-story brick and adobe building and commenced the construction of the three-story brick building on the same ground; the south wall of the two-story building was built up another story, and used as the north wall of the new structure. On June 12, 1927, both of the policies expired; the policy of $3,000 on the one-story building was not renewed; the $22,000 policy was renewed, the description being identical with its predecessor, and is one of the policies now in suit. At that time the outer walls, roof, sub-floors, joists, supports and partitions of the three-story structure were completed. However, mechanics were employed in finishing the structure until September, 1927. When completed, the upper floors of the two buildings were so connected as to be used as one hotel, and the entire structure was known as the Fidel Building. It is stipulated that “said three-story building was so erected as to be a communicating addition to the two-story buEding hereinabove referred to.” ' The occupancy of the ground floor of the three-story building is not shown. Since February, 1927, the south room of the two-story building has been occupied as an electric store.

In September, 1927, the plaintiff, advised the agent of the defendant at Albuquerque, of the new addition, and asked to have the $3,000 policy (which had already expired) cancelled, to have an 80 per cent, co-insurance clause substituted for the- 90 per cent, clause in the $22,000 policy, and to have it reduced to $20,000. The agent advised him that the $22,000 policy would cover the three-story addition. The policy was reduced .as requested. In February, 1928, the $5,000 poEcy in suit was issued. <

The $20,000 Policy.

The plaintiff claims that there are both patent and latent ambiguities in the $20,000 poEcy, the patent ambiguities arising from the description contained in several subsequent endorsements. These claims need not be explored, for we have no doubt that HabiEty exists as to this policy by its terms. When it was issued, in. June, 1927, a communicating addition to the two-story buEding w,as in course of construction; mechanics were engaged «thereon for more than 15' days thereafter. The “Alterations and Repairs Permit” granted the necessary permission to so use such mechanics on such addition. The mechanics were not however engaged in any of the structural changes forbidden by the last sentence of the Permit; that part of the work, with its incidental hazards, had been completed before June 12. The Permit was therefore operative. The Permit expressly extends the coverage to additions being constructed under it; the language is clear and unequivocal; it reads: “and the insurance, if any hereunder, on such buEding, is hereby made to cover such alterations, improvements, repairs, attached and communicating additions and sheds.” It is stipulated that the three-story structure is a' “communicating addition”; the poEcy therefore covers it in terms. The defendant contends that the three-story structure cannot be considered an “addition” because it is larger than the buEding to which it was added. There is nothing in the contract which limits the size of additions; and where an insurance contract covers “additions,” the comparative size or cost thereof is not material. Ayers v. Palatine Insurance Co., 234 N. Y. 334,137 N. E. 608.

The $5,000 PoEcy.

The $5,000 policy presents a question of considerable perplexity. It does not purport to cover “additions” as do many of the policies in the cases cited by plaintiff. WhEe it contains an “Alterations and Repairs Permit,” that Permit can have no reference to the addition here involved, for it grants permission to do something in the future, and the addition in question had been long since completed; this addition.was not in process of construction when this poHey was issued,no mechanics were thereafter employed thereon; the clause cannot therefore attach to nor cover the three-story structure. Nor is the September conversation of assistance; that conversation concerned itself with the $20,000 policy, the only one then in exist•ence; the agent told the plaintiff correctly .that that policy covered the three-story structure. The $5,000 policy was not then in contemplation; but if it were otherwise, the conversation would have become merged in the writing later entered into, under familiar rules. Nor is any claim made that a patent .ambiguity exists in the $5,000 policy, for the •endorsements with differing descriptions are mot on this policy.

Notwithstanding the absence of any patent ambiguity in the policy, the court may receive evidence of the actual .intent of the parties if a latent ambiguity is disclosed by the surrounding circumstances. But in an action at law, the existence of such a latent ambiguity must first be established before extrinsic evidence of actual intent is admissible. Queen Ins. Co. v. Meyer Milling Co. (C. C. A. 8) 43 F.(2d) 885. After an ambiguity is established, a contract is construed strictly against the party which drafted it. Graham v. Business Men’s Assur. Co. (C. C. A. 10) 43 F.(2d) 673, and cases therein cited. But it is not true that a strained construction will be resorted to in order to establish an ambiguity which does not exist. Courts do not force an ambiguity in order to resolve it against an insurer. In the recent case of U. S. Fidelity & G. Co. v. Guenther, 281 U. S. 34, 50 S. Ct. 165, 166, 74 L. Ed. 683, the Supreme Court quoted with approval from the earlier case of Imperial Fire Insurance Co. v. Coos County, 151 U. S. 452, 462, 14 S. Ct. 379, 38 L. Ed. 231, as follows:

“It is settled * * * that, when an in-suranee contract is so drawn ,as to be ambiguous, or to require interpretation, or to be fairly susceptible of two different constructions, so that reasonably intelligent men, on reading the contract, would honestly differ .as to the meaning thereof, that construction will be adopted which is most favorable to the insured. But the rule is equally well settled that contracts of insurance, like other contracts are to be construed according to ¡the sense and meaning of the terms which the parties have used, and, if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense.”

Judge Walter H. Sanborn, speaking for the Eighth Circuit Court of Appeals, tersely stated the rule in Standard Life & Accident Ins. Co. v. McNulty, 157 F. 224; 226, as follows:

“Counsel for the plaintiff invoke the familiar rule that a policy of insurance should be construed favorably to the insured in eases of doubt or ambiguity. But this rule ought not to be permitted to have the effect to make a plain agreement ambiguous, and then to interpret it in favor of the insured.”

See, also, Fred J. Kiesel & Co. v. Sun Ins. Office of London (C. C. A. 8) 88 F. 243, and McGlother v. Provident Mutual Acc. Co. (C. C. A. 8) 89 F. 685, 689.

The question in this ease then is, Is there substantial evidence in the record to support the finding that there is a latent ambiguity in the coverage of the $5,000 policy ? The plaintiff’s principal reliance is upon Queen Ins. Co. v. Meyer Milling Co., supra; Prussian National Ins. Co. v. Terrell, 142 Ky. 732, 135 S. W. 416; Davenport v. Firemen’s Ins. Co., 47 S. D. 426, 199 N. W. 203; Still v. Connecticut Fire Ins. Co., 185 Mo. App. 550, 172 S. W. 625; and other eases holding that where a building is insured, the whole building is covered. With the holding and reasoning in Queen Ins. Co. v. Meyer Milling Co., we are in thorough accord. The facts in that case disclosed a striking example of a latent ambiguity. That policy insured a building located on certain lots; but going to those lots, one would not find the building and appurtenances described; instead, one would find only a slice of an integral building, a segment without the elevators and heating apparatus described, and unusable for any purpose. The building and appurtenances described did not jibe with the location .described. There was therefore a latent ambiguity. But in our ease the description of the land fits the building described. The policy covers a “two-story composition roof brick building * * * situated Southwest-corner of Galisteo and Water Streets, San-born Map Page 5 Nos. 128-27-28.” While the Sanborn Map is not an official designation, the parties are competent to use it as a means of identification. Going to the corner designated, one would discover on the identified ground, the two-story building described. Could any confusion arise in the minds of any one as to what was intended, simply because there was adjacent to it a communicating three-story building using a common party wall ? Or, to put it another way, would any reasonable person believe that the parties intended to insure not only the two-story building so. aptly described, but also the three-story new building not described, and which was not located on the designated lots? Least of all, could the plaintiff be misled? He had carried a policy with this identical description on this two-story building since 1924, and had carried another policy, with an entirely different description, on the building then located on the adjacent lots. It is true the upper floors of the two structures are communicating, and are used as one hotel; it is true that the entire structure is called the Fidel Building; but whether called two buildings or one, the fact remains that they are two structures, erected at different times, and on different locations. It is likewise true that the policy discloses that one of the store rooms was occupied as a warehouse rather than an electric store; but there is no evidence that any store room in the new ■building was occupied as an electric store. But this, to our minds, indicates an omission or error as to occupancy, and does not raise a reasonable doubt as to the identity of the building otherwise so accurately and meticulously described.

The painstaking and commendable researches of counsel on both sides disclose a paucity of helpful authorities on the subject, to which our own investigation has added nothing. That there are two classes of building coverage, one “with additions,” and one with no reference thereto, is well known; and, to use the language of the Kentucky Court “It is a rule not denied anywhere that a policy of fire insurance does not cover additions made to an insured building unless the contract so provides.” Old Colony Ins. Co. v. Berryman Realty Co., 193 Ky. 7, 234 S. W. 748, 750, 21 A. L. R. 292, and Annotation, page 300. Cases involving policies which cover “additions” are therefore not in point. Nor do we conceive to be in point the cases which hold the insurance of a “building” covers all inseparable and constituent parts thereof. The ease most nearly in point is Freed Realty Co. v. National Fire Ins. Co., 161 La. 102, 108 So. 228, where it was held that a policy on a one-story composition roof brick building did not cover an adjacent two-story slate roof building using a common wall and owned by the same person. Both the Federal and State courts of New York have held that a policy on a described building did not cover a new building erected nearby to take the place of the building insured, although the company knew the insured building had been replaced and examined and approved the new building. Arlington Mfg. Co. v. Norwich Union Fire Insurance Co. (C. C. A. 2) 107 F. 662; Arlington Co. v. Empire City Fire Insurance Co., 116 App. Div. 458, 101 N. Y. S. 772.

It may be, as argued, that the parties intended to insure the three-story building not described. But this is not an action to reform a contract. It is an action on the contract. Unless it can fairly be said that the' description is ambiguous, there can be no recovery for the loss to the three-story building under this policy. The question is not free from doubt, but on the whole we conclude that it cannot fairly be said that there is any real ambiguity as to this description; and we are unwilling to force a construction on the plain language used in order-to arrive at that end.

The judgment is reversed, with instructions to enter a judgment for the plaintiff in the sum of $12,048.69 and interest and costs, as stipulated. One-fifth of the costs in this court will be taxed to appellee; four-fifths to appellant.

Reversed.


author: NORTHCOTT, Circuit Judge.

text:
    PRICE v. POCAHONTAS FUEL CO.
    No. 3077.
    Circuit Court of Appeals, Fourth Circuit.
    April 13, 1931.

      H. F. Porterfield, of Bluefield, W. Va. (I. C. Herndon and Ira J. Partlow, both of Welch, W. Va., and Russell S. Ritz, of Blue-field, W. Va., on the brief), for appellant.
    Thomas H. S. Curd, of Welch, W. Va. (Strother, Sale, Curd & St. Clair and J. M. Crockett, all of Welch, W. Va., on the brief), for appellee.
    Before PARKER and NORTHCOTT, Circuit Judges, and WEBB, District Judge.
   NORTHCOTT, Circuit Judge.

This is an action at law brought by appellant, who will be here referred to as plaintiff, a resident and citizen of the state of West Virginia, against the appellee, a Virginia corporation, which will be here referred to as defendant, in the circuit court of McDowell County, W. Va. The cause was removed to the District Court of the United States for the Southern District of West Virginia, and tried at the June, 1930, term of said court. The basis of the action was the alleged negligence of the defendant company, through its servants or agents, in constructing and maintaining an outdoor toilet on the premises owned by defendant and occupied by plaintiff’s husband, as tenant. On the trial, the learned judge below directed a verdict for the defendant, and judgment was entered upon the directed verdict, from which judgment this appeal is brought.

The plaintiff and her husband had lived in certain property owned by the defendant company in McDowell county from the year 1925 until the day of the trial of this cause. Plaintiff’s husband was in the employ of the defendant company during this time, and paid for the use of the property, a dwelling house, rental. For the convenience of Price and his family, in the occupation of their dwelling house at the time they moved • on the premises, there was provided a small outbuilding, situated in an alley adjoining the yard connected with the dwelling house. About two months after moving into the property, the plaintiff and her husband requested a carpenter, an outside foreman of the defendant company, to move the outbuilding inside the premises occupied by them. A pit was dug the same size of the outbuilding, and a wooden box was sunk into the pit, and the outhouse set, without being fastened thereto, on top of the box. The outbuilding was located on an elevation of about 7% feet higher than the ground between it and the dwelling.

Shortly after the toilet was removed, plaintiff’s husband attached two clotheslines to it; one 70 feet long was stretched in the rear of the premises, and the other about 50 feet long extended toward the house. At the time of the removal of the outbuilding, the plaintiff did not know whether or not it was fastened to the frame or foundation in any manner. In April, 1929, the plaintiff was hanging out clothes on the two lines attached to the outbuilding. She had hung clothes on both lines, and at the time the accident happened was hanging the clothes on the line 53 feet long, and, as she neared the outbuilding hanging the clothes, it fell over on her and injured her. There was a wind blowing at the time.

The only question involved is whether the landlord was liable for not having attached the outbuilding to the foundation.

“The general doctrine of the law is that on the demise of a house or lands there is no covenant or warranty implied that the premises shall be fit and suitable for the use for which the lessee requires them whether for habitation, occupation or cultivation. * * * The tenant hires at his peril and a rule similar to that of caveat emptor applies and throws upon the lessee the responsibility of examining as to the existence of defects in the premises and of providing against their ill effects.” 16 R. C. L. 772.

“In the absence of warranty, deceit or fraud on the part of a landlord, the rule of caveat emptor applies to leases of real estate, the control of which passes to the tenant, and it is the duty of the tenant to make examination of the demised premises to determine their safety and adaptability to the purposes for which they are hired.” 16 R. C. L. 775.

There have been a large number of decisions on the question of the liability of a landlord to the tenant, or the members of his family, for injuries due to the defects in the premises, or buildings located thereon. A careful study of these decisions leads us to the conclusion that the landlord is not liable where the buildings or appurtenances to the buildings are used by the tenant or the members of his family for purposes other than that for which they were constructed. The case most similar to the instant ease is that of Keesey v. O’Reilly, 181 App. Div. 665, 168 N. Y. S. 844, where the landlord was held not liable for injury to a tenant due to the falling of a defective chimney while the tenant was on the roof hanging out clothes, and in that case, the court held that, if the jury would have been warranted in finding that the defendant knew or ought to have known that some of the tenants were using the roof for drying clothes, the only legal inference properly to be drawn from these facts was that the defendant acquiesced in and permitted such use of the roof, thus imposing upon him a duty to exercise only sueh care as is owing to a bare licensee.

For a general discussion of the liability of a landlord to one injured while using, for a purpose which was not intended, property leased, see note on page 1390 of 30 A. L. R., where a discussion of a number of the eases decided on this point will be found.

In Gavin v. O’Connor (Err. & App.) 99 N. J. Law, 162, 122 A. 842, 30 A. L. R. 1383, the landlord was held not liable for the death of a child due to the fall of a clothes pole in the back yard of premises, leased by him to the parents of the injured child, where the pole fell because another child in his play was riding on the clothesline. The landlord has also been held not liable for injuries arising out of the use of a fire escape for the hanging of elothes, or as a playground, or for some purpose other than that of escape in ease of fire. Mayer v. Laux, 18 Misc. Rep. 671, 43 N. Y. S. 743; McAlpin v. Powell, 70 N. Y. 126, 26 Am. Rep. 555.

Here the plaintiff had at least the same opportunity, and perhaps a better opportunity, to observe the manner in which the outbuilding was placed upon its foundation by the employee of the defendant company as employees of the defendant. She was not using the outbuilding for the purpose for which it was erected, and she was unquestionably guilty of negligence in filling the two clotheslines full of wet clothes, having considerable weight, while the wind was blowing, and her negligence in this respect was undoubtedly the direct and- immediate cause of her injury.

The court properly directed the verdict for the defendant, and the judgment is affirmed.