author: LEWIS, Circuit Judge.

text:
    ROBBINS v. IRA M. PETERSIME & SON.
    No. 333.
    Circuit Court of Appeals, Tenth Circuit.
    July 13, 1931.
    Raymond Ives Blakeslee, of Los Angeles, Cal., for appellant.
    H. A. Toulmin, Jr., of Dayton, Ohio (H. A. Toulmin, of Dayton, Ohio, and Henry C. Widal, of Denver, Colo., on the brief), for appellees.
    Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges.
   LEWIS, Circuit Judge.

The appellees instituted this suit on November 22, 1928, and their bill alleges that they are the owners of patent 1,562,787, issued November 24, 1925, to Ira M. Peter-sime. The patent application, filed May 22, 1923, was for “Improvements in an Incubator,” and it is alleged that Robbins was and had been making, using and selling incubators that embodied the invention set forth in said letters patent. The usual relief grant-able in such eases was asked.

The answer denies infringement, pleads prior state of the art, and prior patents, among them S. B. Smith No. 1,262,860, issued April 16, 1918, as rendering the patent in suit invalid and void, and alleges that Petersime, in the Patent Office proceedings had so limited the scope of his invention and claims as not to include the structure made and sold by Robbins. Robbins had filed application for patent covering his apparatus for “Improvements in Incubators” on February 6, 1928, and patent was issued to him, No. 1,728,980, on September 24, 1929.

Smith in his patent covered both the process of artificial incubation and an apparatus to carry on that process. There are three claims of the former type and two of the latter. That patent has been uniformly sustained in extended litigation, but limited as construed by Patent Office proceedings and the terms of his claims, although Smith seems to have been the first discoverer of ways and means of applying the art on a large scale so as to meet commercial demands. Theretofore, as further appears in that litigation, the number of eggs that could be successfully and economically hatched in one incubator simultaneously was comparatively small. From Smith it was first learned how the number could be raised to many thousands with success. Others quickly saw and took advantage of the limitations on Smith. That litigation is instructive and helpful here. It seems to have opened with Buckeye Incubator Co. v. Wolf (D. C.) 291 F. 253; Wolf v. Buckeye Incubator Co. (C. C. A.) 296 F. 680. Then came on Buckeye Incubator Co. v. Blum (D. C.) 17 F.(2d) 456; Buckeye Incubator Co. v. Blum (C. C. A.) 27 F.(2d) 333; Buckeye Incubator Co. v. Cooley (C. C. A.) 17 F.(2d) 453; Buckeye Incubator Co. v. Hillpot (D. C.) 22 F.(2d) 855; Buckeye Incubator Co. v. Hillpot (C. C. A.) 24 F.(2d) 341; Buckeye Incubator Co. v. Petersime (C. C. A.) 19 F.(2d) 721. In the case last cited Smith and his assignees charged Petersime with infringement of the Smith method or process claims only. The court, after considering the claims of Smith sued on and the apparatus of Petersime and the process it was adapted to perform, said [page 722 of 19 F.(2d)]:

“This conception of a current of air driven in a definite or predetermined direction is different, we think, from the Petersime process, by which diffusion of heat units and uniformity of temperature is obtained by the slow stirring or agitation of the air in the egg chamber.”

Briefly and relative to the above excerpt, Smith calls for a central corridor in Ms chamber or cabinet. The partition on either side thereof extends not quite to the floor, on the other sides of the partitions a space for tiltable racks to receive trays containing the eggs, and then for purposes of an even temperature and circulation and ventilation and to supply needed oxygen he calls for a fan in the top of the corridor which drives a current to the floor of the corridor where the current mushrooms, passes under the partitions and ascends through trays of eggs, again reaches the fan, thus setting up a continuous circulation. There are inlets for fresh air and outlets for foul air, and means for supplying needed heat and moisture. Other steps in the method, or appliances or parts of his apparatus need not be here mentioned. Petersime does not divide his cabinet. He puts a rotatable or tiltable drum on a shaft in the cabinet, in the drum a rack, and into this rack trays of eggs, one above another. His means for air circulation and evenness of temperature as described in Ms claim 1, is:

“ * * * An agitator element having blades adapted to pass around the exterior of the said drum, and means to actuate the said agitator element.”

In claim 2:

“ * * * An agitator element arranged in said cabinet and adapted to pass around the exterior of said egg supporting member.”

In claim 3:

“ * * * A pair of members pivotally mounted on said shaft one at each end of said drum, a series of blades having their ends attached to said pivotally mounted members so that said members and blades will rotate together to form an agitator, and means engaging one of said pivotally mounted members to rotate the entire agitator.”

Claim 4:

“An incubator including a heated cabinet equipped with egg holding means, and an agitator traveling around said means to maintain a uniform temperature in all parts of the cabinet.”

Claim 5:

“An incubator including a heated cabinet equipped with egg supports, and means movable around the supports to maintain a uniform temperature around all of the supports.”

Claim 6:

“An incubator including a heated egg containing cabinet, and an air agitator constantly traveling around the eggs in said cabinet.”

Petersime, in his specifications, says on this subject:

“To keep the moisture agitated, however, as is well known in the art, an agitator 22 is provided which consists of the cross arms 23 on the shaft 2 at opposite ends of the drum, and these cross arms are provided with the blades 24 which rotate around the drum when the agitator is operated.”

And this difference — Smith’s power driven current of air through the corridor and the egg trays versus Petersime’s air agitating means revolving around the egg trays — saved Petersime from infringing Smith. We are not disposed to question the soundness of the conclusion of the Sixth circuit in that respect. The Third circuit was of the same view as to the limitation on Smith. Buckeye Incubator Co. v. Hillpot, 24 F.(2d) 341. We pass to the issue here, Does Robbins infringe Petersime? The court below so found.

The incubator exhibited in Petersime’s patent, as well as that of Robbins, and the structure which each makes and sells, is a combination of old elements. None of them is new, none of them was first discovered by Petersime or Robbins — a cabinet, chamber or room with doors and windows, a shaft, a drum (skeleton or frame of), the drum mounted on the shaft and tiltable, a power driven fan or fans (in Robbins) as part of his ventilating and even temperature system — this in Peter-sime is his agitator revolving around the drum and described in his patent, supra. Frequent change of the position of an egg while in the process of-hatching is necessary. Smith speaks of it in his specifications and provides for it in one of his claims for an incubator, as do Petersime and Robbins. Pe-tersime’s patent has never been adjudicated as valid in a contested case, except in the court below. He has obtained one or two consent decrees against users of the Robbins incubator. Robbins’ egg tray rack is supported by a shaft extending lengthwise the cabinet. He has a fan of about sixty inches diameter between the rear wall of the cabinet and the egg tray rack rotating about a horizontal axis perpendicular to the rear wall and means for rotating the fan, which, he says in claim 1, produces “an air current that travels from the fan towards the doors directly in front of the fan whereby the air will return towards the fan along the outside of the central air current,” and in claim 2, “it will produce, an air current that travels through the egg tray rack between the super-positioned egg trays. * * ■ * ’■’ Here lies the crux of the ease, whether Robbins’ fan in his combination of old elements is the equivalent of Petersime’s agitator in his combination of old elements.

The Patent Office proceedings show^that Petersime asked for the allowance of two claims in which he did not locate or position his agitator. In that respect those claims said: “An agitator arranged in said cabinet,” and “an agitator arranged for providing an even temperature in said cabinet.” And in his application therefor he said: “As an agitator of the character described is new in the art, an allowance of the two claims is asked.” The Examiner rejected both of them on citation to Smith. Petersime says in his specifications : “An agitator element having blades adapted to pass around the exterior of said drum to keep the air in motion and of the same temperature throughout the machine.” As the only means in Smith to keep the air in motion and of the same temperature throughout the machine is a fan, the Examiner’s ruling obviously was based upon the conclusion that Petersime’s agitator so positioned was not the equivalent of Smith’s fan. It is difficult to see that Petersime is not estopped now to claim that Robbins’ fan is equivalent to his agitator, Moreover, .Petersime’s combination is specific, not generic, is for Improvements in an Incubator, and must have a narrow construction as to equivalents.

The blades of Petersime’s agitator extend from one end to the other of his so-called drum and, of course, clear it in revolving around it as do the arms at either end of the drum to which the blades are attached clear the ends of the drum. Mechanically his agitator is like a paddle-wheel of a boat. If free of obstructions it will agitate the air around it when put in motion, and ordinary common sense teaches that this effect will extend a far greater distance outwardly from the wheel than inwardly. Indeed, the unquestioned and undenied testimony of Robbins and three other experienced hatchery men who had observed the operation of both incubators convinces there is a quiet zone at the center of Petersime’s drum. They each said that they observed that the fuzz or down from the young chicks accumulated at the center of Petersime’s drum and that does not occur in the Robbins machine. Robbins testified that near the axle there is not the necessary circulation in the Petersime drum to produce normally vigorous chicks in the same proportion as outside where the eggs receive some circulation of air. This must be so, because Petersime’s blades as they encircle the drum are opposite each other. The weak force of a blade on one side tending to drive the down through and out of the drum is met by an equally opposing force on the opposite sides of the drum. In Robbins none of this down is found in or on. the egg trays, but on the floor and in corners, some sticking to windows, on the side opposite to and aeross from the fan, carried there from the egg trays by the driving force of the fan.

Conceding, for purposes of argument, that there is identity of function in the air circulating elements in the two machines, we are convinced there is no substantial identity in the way of performing that function, which must exist before there can be infringement. The combinations contain an element that functions substantially differently, and this causes a substantial difference in the combinations themselves as units. Walker on Patents (5th Ed.) § 362. Robinson on Patents, after stating in section 253 that one “requisite in an equivalent is that its use in the invention must not involve a change in the idea of means,” continues the discussion in the two following sections thus:

“In examining alleged equivalents with reference to this second attribute, it is important that the radical distinction between a combination and a simple invention should be constantly remembered; for the same apparent change which, in a simple invention, would be but a substitution of equivalents might, in a combination, introduce a new idea of means. * * * ” ■ Section 254.
“The field of equivalents is thus far wider in regard to these (simple) inventions than with reference to combinations. In these a substitute, in order to escape equivalence, must differ in its function, not merely as a means, and must subvert or modify the principle of the entire invention, while any substitution in the essential elements of a combination which affects either the means or function of the single element passes beyond the region of equivalents into the sphere of substantive invention.” Section 255.

A fan and a paddle-wheel are different mechanisms, and operate in wholly different ways in whatsoever position or relation they may be put respectively to other co-operating instrumentalities. They are not, therefore, equivalents as an element in the combinations of Petersime and Robbins. In James Heekin Co. v. Baker (C. C. A.) 138 F. 63, 65, the court, said:

“Identity of result is, however, not a sufficient test of infringement. There must also be substantial identity of the means and manner of its accomplishment.”

See Westinghouse v. Boyden Power-Brake Co., 170 U. S. 537, 568, 569, 18 S. Ct. 707, 42 L. Ed. 1136.

Furthermore, if Robbins were using an agitator such as that found in Petersime, placed on one side of his egg trays and not revolving around them, it would seem that by the Patent Office proceedings Petersime would be estopped to claim that an agitator so placed would be an infringement. I. T. S. Rubber Co. v. Essex Rubber Co., 272 U. S. 429, 47 S. Ct. 136, 71 L. Ed. 335. Much more, it seems to us, is that principle applicable here.

We have referred to the fact that Peter-sime’s patent is only for Improvements in an Incubator. That is true also of Robbins. In Sander v. Rose (C. C. A.) 121 F. 835, 840, the court said:

“ * * * When two inventors have each adopted the substantial features or elements of an earlier invention, making respectively but slight changes in or improvements upon the earlier device, each will be limited to his own specific form of device; and, if there are differences therein, neither device will be held to be an infringement of the other.”

The same court (Eighth circuit) said in Anakin Lock Works v. Dillon Lock Works, 292 F. 45, 47:

“In ease of a pioneer patent the claims are to be given a broad and liberal construction (Railway Co. v. Sayles, 97 U. S. 554, 24 L. Ed. 1053); while in ease of a patent involving mere improvements, in view of the prior art, the claims are to be narrowly construed and limited to the particular mechanism described, and any device which accomplishes the same result by means of different mechanism is not an infringement.”

Robbins early in his experimentations made and sold one or two incubators with a fan on the shaft at either end of the drum, one fan driving the air into the drum, the other from the drum. For the reasons stated we do not think this was an infringement. But by way of experiment, he made two machines after Petersime’s pattern, except he had two agitators like Petersime’s, one revolving around the drum in one direction and the other around it in the other direction. He said he did this to break up the bottling of the air within the incubator caused by the use of a reel going around it in one direction, and that he destroyed both of these after one hatch in each, having found them unsatisfactory. This use of the reels encircling the drum was, we think, an infringement of Pe-tersime for which Robbins is liable to Peter-sime in damages.

The defendant set up a counterclaim for damages based upon alleged unfair trade practices — that plaintiffs advertised defendant as an infringer, brought an unnecessary number of suits against defendant’s customers, threatened to sue others, and demanded of those sued that they deliver to plaintiffs the incubators purchased from defendant for destruction, all of which, as alleged, caused and was by plaintiffs intended to cause the loss of many sales by defendant. It is further alleged that said acts of the plaintiffs interfered with the defendant making collections for incubators he had already delivered and for those ordered but not delivered, that said acts were a part of a plan by plaintiffs to injure the defendant’s business, and that said acts had greatly damaged and injured the defendant in his business, but the extent and amount thereof were not then known further than the defendant believed that they amounted to many thousands of dollars. Defendant also prayed that the plaintiffs he enjoined from further acts of a like kind and character. The proof offered by defendant to sustain his counterclaim tended strongly to support his allegations, but the court immediately on the close of the evidence directed to that issue dismissed the counterclaim for the stated reason that the facts did not support it. The counterclaim charged, in substance, a libel of defendant in his business.

To be sure, plaintiffs had a right to sue any and all the users of defendant’s incubators as long as they acted in good faith, but several letters of plaintiffs’.counsel written to defendant’s users were more than notices of an intention to sue the addressee as an in-fringer. They contained demands and were in the nature of threats; and the bulletin board which plaintiffs put up at the Minneapolis exhibition of incubators whereon it posted bulletins consisting of copies of these letters, at which there was a large attendance of prospective purchasers of incubators, was unfair and inexcusable, and according to the proof of defendant caused loss to him of prospective purchasers who were there present. On the 'proof adduced on that issue defendant,, in our judgment, was entitled to some damage from plaintiffs on its counterclaim.

The order will be that the decree both on plaintiffs’ bill and on the counterclaim be reversed, that the court decree that the incubator manufactured and sold to the trade by Bobbins, described in his letters patent 1,728,980, does not infringe Petersime’s letters patent 1,562,787, which is decreed to be a good and valid patent owned by the plaintiff, that .the two machines with double reels, manufactured and used by Bobbins for brief periods and by him destroyed, did infringe Petersime, that the amount of damage, if any, for the manufacture and use of the said two machines by Bobbins be ascertained and assessed against him, and the damage, if any, incurred by Bobbins because of said unfair trade practices by plaintiffs be ascertained and assessed in favor of Bobbins, and that the costs in the case in the District Court be equitably divided between the parties, Costs on this appeal to be taxed against ap-pellees.


source: Caselaw Access Project

author: McDERMOTT, Circuit Judge.

license: Public Domain

text:
    COULSTON v. UNITED STATES.
    No. 397.
    Circuit Court of Appeals, Tenth Circuit.
    June 29, 1931.

      James H. Mathers, of Oklahoma City, Okl. (J. Q. A. Harrod, Laynie Harrod, and James C. Mathers, all of Oklahoma City, Okl., on the brief), for appellant.
    Herbert K. Hyde, Asst. U. S. Atty., of Oklahoma City, Okl. (Roy St. Lewis, U. S. Atty., of Oklahoma City, Okl., on the brief), for the United States.
    Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.
   McDERMOTT, Circuit Judge.

The appellant was convicted of violating the Anti-Narcotic Acts (title 21, U. S. C., c. 6 [21 USCA § 171 et seq.]; title 26, U. S. C., c. 11 [26 USCA § 691 et seq.]). The government’s evidence was that defendant and one Mathews were partners engaged in selling morphine; that defendant furnished the morphine and Mathews did the selling; that an addict arranged with defendant to make a purchase from Mathews; and that the morphine was delivered by Mathews in the presence of defendant. The defendant took the stand and denied the partnership, admitted he was present when Mathews made the delivery, but disclaimed any knowledge of what was going on.

Several errors are assigned. It is claimed that a demurrer to the government’s evidence should have been sustained. Aside from the fact that the point was waived by the introduction of evidence and the failure to move for a directed verdict at the close of all the evidence, the claim is frivolous. It is claimed that error was committed because the trial court commented on the evidence, counsel asserting the law to be that “the trial court is not permitted to convey, in the slightest manner, to the jury any indication whatsoever as to the weight, force, effect or truthfulness of any evidence. And should he do so through inadvertence or otherwise, it is reversible error.” That is not, and never has been, the law in the national courts. On the contrary, the trial judge has the right to analyze and classify with fairness the evidence on both sides, and otherwise aid the jury in its consideration; and as long as he makes it clear that the jury has the exclusive right to decide the facts, he may comment on the weight of the evidence, although he should not argue the ease. Complaint is made because the stenographer did not report all of the proceedings of the trial, including arguments of counsel. Trials are not officially reported in the national courts; if either party desires a stenographic report as an aid in the preparation of the bill of exceptions, or of his assignments of error, or for any reason, he has the absolute right to have a stenographer present for that purpose; but the responsibility is upon the parties to provide themselves with such a record. A stenographic report, while helpful, is not indispensable in the settlement of a bill of exceptions.

The record discloses that, on cross-examination of the defendant, the court per-, mitted, over objection, an inquiry into a controversy between defendant and the narcotic agent, involving the return of $25 supposedly paid the defendant in connection with a transaction involving morphine and which occurred some thirteen months after the offense for whieh he was on trial. The record further discloses that on rebuttal the government was permitted to prove, over objection, its version of such subsequent transaction, and to prove a further conversation between the agent and defendant over $1,750 worth of morphine. Neither of the transactions proven on rebuttal had the slightest connection with the sale for whieh defendant was being tried.

In our judgment, this was prejudicial error. The issue presented was a simple one: Did defendant negotiate the sale on January 20, 1929, as testified to by two government witnesses, or was he an innocent bystander, as he testified. These remote and disconnected transactions had no evidentiary bearing on this issue; at best they could serve but to create an atmosphere of hostility and to distract the attention of the jury from the issue. The briefs indicate a confusion of thought upon two entirely different evidenti-ary principles — one the admissibility of proof of other offenses; the other, the impeachment of the defendant as a witness if he takes the stand.

In the civil law, and very early in the common law, evidence of other crimes was ad mitted on the theory that a person who has committed one crime is apt to commit another. The inference is so slight, the unfairness to the defendant so manifest, the difficulty and delay attendant upon trying several eases at one time so great, and the confusion of the jury so likely, that for more than two hundred years it has been the rule that evidence of other crimes is not admissible. Boyd v. United States, 142 U. S. 450, 12 S. Ct. 292, 35 L. Ed. 1077; Hall v. United States, 150 U. S. 76, 14 S. Ct. 22, 37 L. Ed. 1003; Niederluecke v. United States (C. C. A. 8) 21 F.(2d) 511; Cucchia v. United States (C. C. A. 5) 17 F.(2d) 86; Smith v. United States (C. C. A. 9) 10 F.(2d) 787; Wigmore on Evidence (2d Ed.) § 194. Corpus Juris cites cases from forty-four American jurisdictions in support of this rule. 16 C. J. 586. There are many exceptions to the rule, the most common of whieh is that, if the prosecution must show a specific intent, evidence of other similar offenses may be used to establish that fact. For example, in a prosecution for a scheme to defraud, the existence of the crime depends upon the proof of fraudulent intent; and many times the proof of that intent is found in the “evidence of other acts and doings of the party, of a kindred character, in order to illustrate or establish his intent or motive in the particular act directly in judgment.” Wood v. United States, 41 U. S. (16 Pet.) 342, 360, 10 L. Ed. 987; Williamson v. United States, 207 U. S. 425, 28 S. Ct. 163. 52 L. Ed. 278; Wigmore on Evidence (2d Ed.) §§ 300-373; 16 C. J. 589. All of the many so-called exceptions to the general rule of exclusion can be covered by stating the rule negatively; that is, relevant and competent evidence of guilt is not rendered inadmissible because it also proves that defendant committed another offense. Moore v. United States, 150 U. S. 57, 61, 14 S. Ct. 26, 37 L. Ed. 996; Tucker v. United States (C. C. A. 6) 224 F. 833; Hogan v. United States (C. C. A. 5) 48 F.(2d) 516; Miller v. United States (C. C. A. 9) 47 F.(2d) 120. Or, to use the language of Justice Brewer, “A party cannot, by multiplying his crimes, diminish the volume of competent testimony against him.” State v. Adams, 20 Kan. 311, 319.

The government was not obligated to show any specific intent in the case at bar. In Paris v. United States (C. C. A. 8) 260 F. 529, the defendants were charged with a violation of the Anti-Narcotic Act, and the cause was reversed because evidence of other violations of the act was admitted, the court holding that “the intent of the defendants, or either of them, was not an essential element of the offense with which they were charged in the ease at bar.” The evidence offered by the government in this case had no probative bearing on the guilt of the defendant, and should have been excluded. .. .

If the defendant takes the witness stand, 'a different rule comes into play. He steps out of his character as a defendant, for the moment, and takes on the role of a witness, and as such becomes subject to cross-examination in the same manner and to the same extent as any other witness. The rules of evidence in criminal eases may not, in the same jurisdiction, be the same as the evidentiary rules in civil eases, sections 858 and 914 of the Revised Statutes (title 28, U. S. C. §§ 631, 724 [28 USCA §§ 631, 724]) having no application to criminal cases. In criminal eases, the competency of witnesses is determined by the common law of the jurisdiction as it existed when the state was admitted into the Union [Neal v. United States (C. C. A. 8) 1 F.(2d) 637, and cases there cited; United States v. Fay (D. C.) 19 F.(2d) 620; Id. (C. C. A. 9) 22 F.(2d) 740; Rendleman v. United States (C. C. A. 9) 18 F.(2d) 27; Zoline on Fed. Crim. Law and Procedure, vol. 1, § 300, page 248], subject to such changes as may be brought about by judicial authority or congressional enactment [Rosen v. United States, 245 U. S. 467, 38 S. Ct. 148, 62 L. Ed. 406; Neal v. United States, supra; Tinsley v. United States (C. C. A. 8) 43 F.(2d) 890], In criminal cases, there may therefore be differences arising from variations in the common law in the different jurisdictions at the time of their admission into-the Union. It may however be said that, subject to possible variants so arising, it is well settled in criminal eases in the federal courts that cross-examination must be confined to the subjects of the direct examination [Philadelphia & Trenton R. R. Co. v. Stimpson, 39 U. S. [14 Pet.] 448, 10 L. Ed. 535; Sawyer v. United States, 202 U. S. 150, 26 S. Ct. 575, 50 L. Ed. 972, 6 Ann. Cas. 269; McKnight v. United States (C. C. A. 6) 122 F. 926; Resurrection Gold Mining Co. v. Fortune Gold Mining Co. (C. C. A. 8) 129 F. 668; Harrold v. Oklahoma (C. C. A. 8) 169 F. 47, 17 Ann. Cas. 868; Illinois Central R. R. Co. v. Nelson (C. C. A. 8) 212 F. 69; Hendrey v. United States (C. C. A. 6) 233 F. 5; Heard v. United States (C. C. A. 8) 255 F. 829; Zoline on Fed. Crim. Law and Procedure, vol. 1, § 385, page 317] ; that the credibility of a defendant who has. testified may he impeached in the same manner and to the same extent as any other witness, and no further [Raffel v. United States, 271 U. S. 494, 46 S. Ct. 566, 70 L. Ed. 1054; Fitzpatrick v. United States, 178 U. S. 304, 315, 20 S. Ct. 944, 44 L. Ed. 1078; Reagan v. United States, 157 U. S. 301, 305, 15 S. Ct. 610, 39 L. Ed. 709; Madden v. United States (C. C. A. 9) 20 F.(2d) 289; Tucker v. United States (C. C. A. 8) 5 F.(2d) 818]; questions asked on cross-examination for the purposes of impeachment should be confined to acts or conduct which refleet upon his integrity or truthfulness, or so “pertain to his personal turpitude, such as to indicate such moral depravity or degeneracy on his part as would likely render him insensible to the obligations of an oath to speak the truth” [Miller v. Territory of Oklahoma (C. C. A. 8) 149 F. 330, 338, 9 Ann. Cas. 389] ; when such a question is asked and answered, the inquiry is ended; the government is bound by the answer in that it may not, on rebuttal, offer countervailing proof [Fisk v. United States (C. C. A. 6) 279 F. 12; Billiard v. United States (C. C. A. 4) 245 F. 837; Smith v. United States (C. C. A. 9) 10 F.(2d) 787, 788]. To this latter rule, there is one exception : In criminal cases a witness may be asked, for purposes of impeachment, whether he has been convicted of a felony, infamous crime, petit larceny, or a crime involving moral turpitude, and on rebuttal the record of such conviction is admissible. Middleton v. United States (C. C. A. 8) 49 F.(2d) 538; Glover v. United States (C. C. A. 8) 147 F. 426, 8 Ann. Gas. 1184; Williams v. United States (C. C. A. 5) 46 F.(2d) 731; Pittman v. United States (C. C. A. 8) 42 F.(2d) 793; Lawrence v. United States (C. C. A. 8) 18 F.(2d) 407; Haussener v. United States (C. C. A. 8) 4 F.(2d) 884; Williams v. United States (C. C. A. 8) 3 F.(2d) 129, 41 A. L. R. 328; Neal v. United States (C. C. A. 8) 1 F.(2d) 637; Scaffidi v. United States (C. C. A. 1) 37 F.(2d) 203. A witness may not be asked if he has been accused or arrested for a crime, for the sufficient reason that it calls for hearsay evidence, and because accusation carries no implication of guilt. Glover v. United States (C. C. A. 8) 147 F. 426, 430, 8 Ann. Cas. 1184; Pittman v. United States (C. C. A. 8) 42 F.(2d) 793; State v. Greenburg, 59 Kan. 404, 53 P. 61.

Tested by these rules, the questions asked on cross-examination of the defendant were improper. That a controversy occurred, some thirteen months after the sale charged, between a narcotic agent and the defendant over the repayment of $25, or that at an unnamed date the two of them had a conversation concerning other morphine, did not impeach the credibility of the witness. But, even if the cross-examination were proper, the evidence received was not admissible on rebuttal to contradict defendant, for it concerns a collateral matter, as to which inquiry stopped with the answers of the witness. The government states in its brief that the defendant, on direct examination, testified that he knew nothing about the morphine business. The record does not substantiate this statement.

One other point is stressed. From the brief of appellant, purporting to quote the testimony verbatim, it appears that the narcotic agent was asked whether he “had information that morphine was being sold by this defendant at the Sun Drug Store,” and that his answer was received over objection. The record, by which we must go, does not disclose either objection or exception. Since the case must be retried, it may be said that such information is not competent evidence of guilt; the defense of entrapment not being interposed, it is not available to rebut such defense.

To all of this, the appellee answers that the jury convicted, upon abundant evidence, and that the errors complained of were not prejudicial. The same contention was made to the Eighth Circuit Court of Appeals many years ago, and in response thereto that court (Sanborn, Van Devanter, and Philips sitting) said: “The zeal, unrestrained by legal barriers, of some prosecuting attorneys, tempts them to an insistence upon the admission of incompetent evidence, or getting before the jury some extraneous fact supposed to be helpful in securing a verdict of guilty, where they have prestige enough to induce the trial court to give them latitude. When the error is exposed on appeal, it is met by the stereotyped argument that it is not apparent it in any wise influenced the minds of the jury. The reply the law makes to such suggestion is: that, after injecting it into the case to influence the jury, the prosecutor ought not to be heard to say, after he has secured a conviction, it was harmless. As the appellate court has not insight into the deliberations of the jury room, the presumption is to be indulged, in fávor of the liberty of the citizen, that whatever the prosecutor, against the protest of the defendant, has laid before the jury, helped to make up the weight of the prosecution which resulted in the verdict of guilty.” Miller v. Territory of Oklahoma, 149 F. 339, 339, 9 Ann. Cas. 389.

The case will be reversed and remanded for a new trial.

Reversed and remanded.

      TIie exceptions are classified in many ways trit in all of them, the evidence of the other offenses either has probative value, or, as in Astwood v. United States (C. C. A. 8) 1 F.(2d) 639, St. Clair v. United States, 154 U. S. 134, 14 S. Ct. 1002, 38 L. Ed. 936, and Jones v. United States (C. C. A. 9) 179 F. 584, the several offenses are so interwoven that proof of one necessarily involves proof of the other. In State v. King, 111 Kan. 140, 206 P. 883, 22 A. L. R. 1006, are gathered many interesting cases, where the crime was committed in such a peculiar manner that proof that defendant committed other offenses in the same unusual way was held to be admissible to establish the identity of the perpetrator. It has also been held that, where the defendant concedes the doing of the act complained of, but claims that he did it accidentally or by mistake, evidence of other similar offenses, not too remote in time, may be admitted to rebut the defense and to establish •general criminal intent. Marshall v. United States (C. C. A. 2) 197 F. 511. For a discussion of exceptions to the rule, see 16 C. J. 587 et seq.

       The authorities are widely divergent as to the specific acts or conduct which is a proper subject of such inquiry. Wigmore devotes 28 pages to a citation of cases on this subject. Wigmore on Evidence (2d Ed.) vol. 2, pp. 385 to 412. The rule herein stated is the rule of the Eighth circuit, and concerning which Dean Wigmore says, at page 365: “The other attitude is entirely logical, and admits only such misconduct as indicates a lack of veracity — traud, forgery, perjury, and the like. A minority of courts are inclined to observe this limitation, — at least now and then.”

       There is a divergence of authority as to the nature of the crime which may be proven for the purpose of impeachment. Judge Morris, in the Scaffidi Case (C. C. A.) 37 F.(2d) 203, analyzes the decisions of all the circuits which had passed upon the question by 1930. The rule stated in the opinion is that of the Eighth circuit and is supported by the weight of authority. The trial court has a discretion in allowing cross-examination as to such convictions, and the questions should not be permitted unless the court is satisfied that they are asked in good faith and on substantial information —ordinarily only when the record proof of such conviction is available. See elaborate opinion of Judge Kenyon in Williams v. United States (C. C. A.) 3 F.(2d) 129, 41 A. L. R. 328.

         There is a conflict of authority in the state courts upon the question of whether the credibility of a witness may be attacked by a showing that he has been accused, arrested, or indicted for an offense; or, if such an attack is permissible, whether it is confined to offenses growing out of the transaction then on trial. For a discussion of this conflict, see 28 R. C. L. p. 627. The rule stated in the opinion is the rule in the Eighth circuit, is supported by the weight of authority, and- seems to be sound as a matter of principle. See Wigmore on Evidence (2d Ed.) vol. 2, p. 366.


author: SOPER, Circuit Judge.

text:
    PHILYAW v. ARUNDEL CORPORATION.
    No. 3135.
    Circuit Court of Appeals, Fourth Circuit.
    June 24, 1931.
    D. W. Robinson, of Columbia, S. C. (Joseph T. Davis, of St. Louis, Mo., and W. H. Nicholson, of Greenwood, S. C., on the brief), for appellant.
    R. B. Herbert, of Columbia, S. C. (Herbert & Dial, of Columbia, S. C., on the brief), for appellee.
    Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
   SOPER, Circuit Judge.

The administrator of Durand Philyaw brought a suit subsequently removed to the federal court against Arundel Corporation charging that Philyaw was killed by reason of the failure of the defendant to furnish him with a safe place to work when acting as its employee in the operation of a steam shovel in the construction of a dam across the Saluda river in Lexington county, S. C. There was no complaint that the machinery was defective, but it was said that the deceased was an inexperienced employee and was not properly warned as to a certain danger attending the adjustment of the apparatus upon which he was engaged as an assistant at the time of the fatal injury.

The steam shovel was of the usual construction and contained three engines. Two were in the cab of the maehin'e and were used to operate the boom and the bucket at the end of the dipper stick. The third engine was located on the boom between two parallel steel beams about two feet apart, which formed the framework of the boom. Just outside of the beams and alongside of the engine on either side, two bull wheels were mounted. This arrangement was used for the operation of the dipper stiek which was so adjusted that it slid back and forth between the wheels in order that the bucket at the end might reach the earth to be exeavated and be withdrawn to deposit it at the point desired. Over the boom engine between the steel beams and the bull wheels, there was a grease cover or- lid designed to keep out the dirt, which was four feet long and twenty inches wide and weighed about fifty pounds.

C. E. Heath operated the engines in the cab and had full charge of the work, while J. T. Lee, an experienced engineer and machinist, ran the engine on the boom. Philyaw wás subject to the orders of both. On the morning of the accident, the dipper stiek worked sluggishly and Lee believed that the difficulty was due to a tight bearing. Consequently he gave the proper signal and stopped his engine; whereupon Heath stopped the engines in the cab and the machinery came to rest. Lee then got certain tools and ascended to a place on the boom alongside and to the left of the engine, facing the bucket or shovel. He reached over the steel, beam, lifted up the cover of the engine, and ' supported it upon his arm and shoulder while he tried to make adjustments to the machinery. At this moment Philyaw, the deceased, came up on the right-hand side of the boom opposite to Lee, whereupon Lee told him to hold the grease cover and was thereby left free to use both hands upon the engine. Philyaw obeyed, thrusting his arm between the spokes of the right-hand wheel. Since the men were scarcely two feet apart, Philyaw’s attitude was easily visible to Lee. In fact, in one part of his evidence, which is not altogether consistent on this point, Lee gave testimony tending to show that he knew that Philyaw’s arm was between the spokes of the wheel. If he did not know it, it was only because he was intent upon the engine rather than upon the safety of his assistant. Philyaw’s action was a dangerous thing to do, as it afterward transpired, notwithstanding’the fact that the machinery was not in operation. The dipper stiek was so adjusted that when the power was shut off, the stiek woulí slide one way or other, turning the wheels until it reached the center of gravity and was supported at a point of balance. On the occasion in question, it turned out that the dipper stiek was stuck, and when the pressure was released, it slid naturally into a place of rest, causing-the accident.

Although Lee knew of the danger, he gave no warning to Philyaw but proceeded with the work. There were a number of other ways in which the cover could be safely held up, but the evidence shows that it was a natural and not an unheard of thing for a person to put his arm through the spokes of the wheel while at rest. Lee testified that although he knew the danger, he himself had put his arm in this position both before and after the boy was killed.

Lee believed that there was a tight bearing, by reason of which the dipper stiek would not pass back and forth through the boom easily and to its full extent. In order to ascertain whether his theory was correct, he used a hammer upon the connecting rod, knowing that if in fact the trouble was caused by the bearing being a little too tight, the tap of the hammer would tend to make the engines move. As a matter of fact, when the hammer was used the engines did move at once. The dipper stick slid in towards the cabin, and the bull wheels revolved, catching the arm and shoulder of Philyaw between the spokes of the wheel on his side and the boom of the steamshovel, so that he was crushed and killed.

There seems to be no doubt from this recital of the facts that the evidence tended to show negligence on the part of Lee, an experienced man, in ordering or permitting his assistant to thrust his arm between the spokes of the wheel while the engine was being tested. It seems equally clear, from the following recital of facts, that the evidence tended to show that Philyaw was an inexperienced workman, unaware of the risk which he ran. He had never been warned as to the danger of putting his arm through the spokes of the wheel. He was nineteen years of age and an intelligent boy. He had graduated from high school on May 20-, 1929; had gone to work on June 1, and was killed on October 24. He had had no training as a machinist, and this was his first job. The only warning which he had received prior to the accident was a general one that he should stand clear of the shovel when the train of ears came in to receive the dirt to be carried away. His work was that of an oiler and it was his duty to oil the machinery while it was at rest between the departure of one train and the arrival of another. This general warning was of no help in this ease for the reason that the machine was not in operation at the time, and the warning thereafter had no application. He had of course had some opportunity-during the term of his employment to observe the general operation of the steam shovel and particularly of the boom, but there is nothing in .the record to indicate that he had any reason to believe or suspect that the dipper stick would slide one way or the other when he thrust his arm between the spokes of the wheel. The evidence was not so clear that it could be said as a matter of law that the danger was so obvious to him that he assumed the risk.

At the conclusion of the plaintiff’s ease, wherein the facts above recited were brought out, the court directed a verdict for the defendant on the ground that there was not sufficient evidence of neglect or failure in any of the duties of the defendant, as master of the deceased, to warrant the case being sent to the jury. We have seen, considering the testimony in the light most favorable to the plaintiff as we are obliged to do, that there was evidence tending to show that the deceased was so inexperienced that he could not be held to have assumed the risk of the accident which caused his death, and also that there was evidence tending to show that the engineer in charge of the boom engine was neglectful in failing to warn the deceased of the risk which he was running at the time of his death. We think that the correctness of the ruling of the court depends in the main upon whether there was a violation of the nondelegable duty of the defendant to warn the deceased as to the hidden danger involved in the work, or whether, on the other hand, the fatal accident was due simply to negligence of a fellow servant for which the defendant was not responsible.

The rules governing the responsibility of the master to furnish a safe place to his employees to work and to warn them as to the dangers of the employment, on the one hand, and the lack of responsibility of the employer for the negligence of a fellow servant of an injured employee, on the other, when the master has once performed his duties, are well established. It has been succinctly said by Judge Sanborn:

“The duty of the employer is one of original construction and provision. The duty of the employee is one of operation. The employee assumes the ordinary risks and dangers of his employment, and among these the risks and dangers of the negligence of his fellow servants in the performance of the work including the risk and danger of the negligence of his superior, be he foreman or superintendent, who in his direction or failure to direct the operation of the work is his fellow servant.” Missouri Valley Bridge & Iron Co. v. Walquist (C. C. A.) 243 F. 120, at page 124.
“All who enter into the service of a common master, except those who become heads of and vested with absolute control of separate departments or branches of a great and diversified business, thereby become engaged in a common service and are fellow servants in all they do, except that which they do in discharge of the master’s nondel-egable duty of provision. And in the absence of a statutory provision to the contrary each servant, by accepting his employment, voluntarily assumes the risk and danger of the negligence of his fellow servants in the discharge of all their duties of operation, whether those duties are those of superintendence and direction, or those of equal or subordinate service.” Union Pac. R. Co. v. Marone (C. C. A.) 246 F. 916, at page 923. See also Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 13 S. Ct. 914, 37 L. Ed. 772; New England R. R. Co. v. Conroy, 175 U. S. 323, 20 S. Ct. 85, 44 L. Ed. 181; overruling Chicago, Milwaukee & St. Paul R. v. Ross, 112 U. S. 377, 5 S. Ct. 184, 28 L. Ed. 787; Texas & Pacific Ry. Co. v. Bourman, 212 U. S. 536, 29 S. Ct. 319, 53 L. Ed. 641.

The real test, according to Judge Watkins, speaking for this court in James Stewart & Co. v. Newby, 266 F. 287, at page 294, “is whether the master has intrusted to such one the limited duty of mere operation on the one hand, or a broader duty involving provision on the other. When one is charged with a nondelegable duty of a master, liability for his negligence thereof exists, if injury is thereby caused to another servant of any rank whatever, superior, equal, or inferior. Since, however, all who enter a common employment are prima facie fellow servants, in order to render the master liable specific testimony must be produced to show that the offending servant is charged with some duty of provision, and not merely the ordinary service of operation.” In that ease the court held that it was error to direct a verdict for the defendant where there was evidence to show that the breaking of a boom used to raise a heavy timber from a pier to a scow, by which a workman on the scow was injured, was due to the improper placing of the scow by the foreman in charge.

It is not always easy in a given case to determine whether the negligent act or omission should be classified as one of provision or one of operation; and it is quite impossible to reconcile the decisions, state or federal, which have attempted to solve the difficulty. It arises because accidents in the factory, in the mine or quarry, or .on the railroad, usually take place in the course of the actual operation of the business, and in one sense it is always true in such cases that the duty of operation was being performed by the fellow servant of the injured man. But this sense is not intended in the statement of the rule, for otherwise the duties which the master must perform at his peril could be delegated with impunity to his subordinates. On the other hand, the rule does not contemplate that every danger which arises in the course of the work through the carelessness of the master’s servant shall be treated as a failure of the master to furnish a safe place to work, or that every neglect of his employees to give warning of an unseen danger shall be considered as a failure of the master to warn or instruct, for if this were the ease, the exemption of the master from liability for the negligence of fellow servants of an injured employee would cease to exist. The circumstances must determine into which category the negligence complained of falls, and it is not possible to enunciate a more definite formula by which each ease may be solved than to say that in each instance the court must determine whether or not the negligent fellow servant was engaged at the time in performing a nondelegable duty of the master.

By way of illustration, it has been held that the failure of a fellow servant to give warning of an impending danger should not be imputed to the master, when a mine boss failed to give to the injured man, who was engaged in breaking rock at the top of a chute, the usual notice that he should descend because the chute was about to be opened, Alaska Mining Co. v. Whelan, 168 U. S. 86, 18 S. Ct. 46, 42 L. Ed. 390; or where a workman on a hand car on a railroad was injured by collision with a train because the foreman in charge of the gang failed to keep a proper lookout, Martin v. Atchison, etc., R. Co., 166 U. S. 399, 17 S. Ct. 663, 41 L. Ed. 1651; or where a workman employed beneath a ear in making repairs was injured by a collision with an approaching car because a fellow employee stationed outside failed to give the proper warning, Southern Pacific Co. v. Pool, 166 U. S. 438, 16 S. Ct. 338, 46 L. Ed. 485; or where the mate of a vessel engaged in between decks in loading lumber thereon was injured by reason of the failure of one of the men on the wharf to give warning that a piece of lumber was being sent down the chute, Hermann v. Port Blakely Mill Co. (D. C.) 71 F. 853.

On the other hand, the employer has been held'liable for failure of a subordinate to give warning of a danger arising in the course of the business, where a laborer, chiefly engaged about a hoisting engine in a quarry, and with no experience in blasting, was ordered by his boss to dig out the tamping from a- hole which had been filled with explosives but had failed to go off, Peters v. George (C. C. A. 3d) 154 F. 634; and where a laborer in a mine was injured by the fall of a drain pipe supported by wooden props which a fellow employee had been ordered to disconnect, Kentucky Block Cannel Coal Co. v. Nance (C. C. A. 6th) 165 F. 44; and where a man at work under a car was injured because his foreman, without warning, caused the ear to be moved, American Car & Foundry Co. v. Rocha (C. C. A. 8th) 257 F. 297; and where an engineer, inexperienced in such matters, having been ordered by his chief from his regular duty to assist in testing a new electric motor, was injured by the action of the chief in turning on the current after the motor had become heated and dangerous, American Car & Foundry Co. v. Brinkman (C. C. A. 7th) 146 F. 712; and where an inexperienced stevedore foreman, employed in coaling a vessel, was injured by a fall of coal from an unguarded chute, Panama R. Co. v. Minnix (C. C. A. 5th) 282 F. 47. See also Gagnon v. Klauder-Weldon Dyeing Machine Co. (C. C.) 174 F. 477; Id. (C. C. A.) 183 F. 962; Force v. Standard Silk Co. (C. C.) 160 F. 992; Id. (C. C. A.) 170 F. 184; Thomas v. Cincinnati, etc., Ry. Co. (C. C.) 97 F. 245; Western Electric Co. v. Hanselmann (C. C. A. 2nd) 136 F. 564, 76 L. R. A. 765; Lehigh Valley Coal Co. v. Lukaszunas (C. C. A.) 230 F. 792; Freedom Casket Co. v. McManus (C. C. A.) 218 F. 323; Alpha Portland Cement Co. v. Curzi (C. C. A.) 211 F. 580; Montana Coal & Coke Co. v. Kovec (C. C. A. 9th) 176 F. 211; Mountain Copper Co. v. Pierce (C. C. A. 9th) 136 F. 150; International Paper Co. v. Robin (C. C. A. 1st) 167 F. 922; John Lang Paper Co. v. Zacheyfia, (C. C. A. 3rd) 178 F. 253; Chesson v. Walker & Myers, 146 N. C. 511, 60 S. E. 422.

In our opinion, a duty to warn the deceased on the occasion of the accident in the case at bar devolved upon the defendant company and could not be delegated to his fellow workman on the job, if we assume, as the jury might have found from the facts before it, that the injured man was directed to do work outside the scope of his usual duties and was knowingly permitted to perform it in a dangerous manner without knowledge of the danger and without warning of any kind. For the neglect of such a duty, an employer must bear the responsibility. We can do no better than to quote from the opinion of Judge Munson in Hayes v. Colchester Mills, 69 Vt. 1, 37 A. 269, 271, 60 Am. St. Rep. 915, where a young boy, employed as a helper around a spinning room of a mill for about two years, was directed by Sturgis, his-foreman, to ascend a ladder so as to be able to hold a belt from a revolving shaft in order that the belt might be repaired. He was not warned of the danger of the situation, and as the result, lost an arm. Holding that the employer was liable for the foreman’s neglect, the court said:

“The plaintiff was suddenly called upon to perform a service which was essentially different from any he had before undertaken. The danger of the service lay somewhat in the place where it was to be done, and the position it was necessary to take in doing it. It cannot be assumed from the fact that the plaintiff knew in a general way of the movement of the shaft, and its effect upon a belt, that he so understood the dangers connected with the performance of this particular service that the caution and instruction of an experienced workman would have been of no benefit to him. We think the plaintiff’s knowledge in the respects stated will not justify us in holding, as matter of law, that he was not entitled to caution or instruction under the circumstances disclosed by his evidence.
“It being for the jury to determine whether instructions should have been given the plaintiff, it is necessary to consider whether any omission of Sturgis in this matter was the negligence of the defendant. It is evident that the right of an employee to receive instructions cannot be made to depend upon the presence of the employer or his general representative. The duty must often rest upon the one whose order creates the necessity for the instruction. In such a case the employer cannot excuse himself for the employee’s failure to receive instruction by saying it was the neglect of a fellow servant. If it became -the duty of the defendant to instruct the plaintiff, the performance of that duty devolved upon Sturgis, and any negligence of Sturgis therein would be chargeable to the defendant. This holding is not upon the ground that Sturgis was not a fellow servant of the plaintiff in the general sense, but upon the ground that his connection with the plaintiff in this transaction was such that, when occasion arose for instructing the plaintiff, he was in that matter the representative of the defendant. When an employee, although a fellow servant of the injured employee, is charged with the master’s duty to such employee, his failure in that duty is the negligence of the master, and the doctrine of fellow servant does not apply.”

The judgment of the District Court must be reversed.


text:
    ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, Inc., v. EDWARDS.
    No. 389.
    Circuit Court of Appeals, Tenth Circuit.
    June 27, 1931.

      P. C. Simons, of Enid, Okl., and E. W. Dillon, of Columbus, Ohio (Simons, McKnight, Simons & Mitchell, of Enid, Okl., on the brief), for appellant.
    C. E. Dyer, of Enid, Okl., and Stephen C. Treadwell, of Oklahoma City, Okl. (Dyer, Smith & Crowley, of Enid, Okl., on the brief), for appellee.
    Before COTTEEAL, PHILLIPS, and McDERMOTT, Circuit Judges.
   McDERMOTT, Circuit Judge.

The appellee recovered on an accident insurance policy. The appellant assigns as error that the court should have directed a verdict for appellant, and that there was error in the charge to the jury. The controversy narrows to one proposition, for if the theory upon which the trial court declined to direct a verdict is sound, then the charge to the jury is sound. We take up the question of whether the court should have directed a verdict for the appellant.

There is little dispute as to the facts. The testimony of the plaintiff’s witnesses was that on June 9, 1927, the insured accidentally fell out of an automobile and struck his side or lower abdomen against the running board; the blow left a red and inflamed mark, which disappeared by the third day. The skin was not broken. A doctor was called the third day after the accident, and discovered a mass in the region of the caecum and the appendix; that night the insured was operated. The appendix, the caecum and the bowel were gangrenous and highly infected. Pour days later he died of a bloodstream infection, a general septicemia.

•The contract sued on certifies that:

The insured “is entitled to all the rights and benefits which may be provided for such ‘Class A’ Insured Members in and by the Constitution of said Order in force and effect at the time any accident occurs subsequent to said time and date. The benefit under this certificate for death due to accidental means alone and independent of all other causes shall be six thousand three hundred dollars ($6,300.00).

“This Certificate, the Constitution, ByLaws and Articles of Incorporation of said Order, together with the application for insurance signed by said Insured Member, shall constitute the contract between said Order and said Insured Member and shall govern the payment of benefits, and any changes, additions or amendments to 'said Constitution, By-Laws or Articles of Incorporation, hereafter duly made, shall bind said Order and said Insured Member and his beneficiary or beneficiaries, and shall govern and control the contract in all respects.”

The constitution, referred to in the certificate, is a booklet of 91 pages; article IV thereof, consisting of 17 pages, deals with insurance; section 7 of article IV consists of two pages of exemptions from liability in case of accidental injury or death. The clause directly in question reads, in part:

“Nor shall the Order be liable to any person for any benefits for any death, disability or loss of time by reason of any of the following conditions, whether caused by accidental means or not, to-wit: Appendicitis, * * * poisoning, * * * or any infection (unless the infection is introduced into by or through an open wound, which open wound must be caused by external, violent and accidental means and be visible to the unaided eye). * * * ”

Whether the insured died as a result of appendicitis is a debatable question. There is not the slightest doubt, however, that his death was caused by an infection; the attending physician and surgeon, testifying for plaintiff, agree upon that. There is no contention that the infection was introduced into his system through an open wound visible to the unaided eye. The clause provides that there shall be no liability for any death from infection “whether caused by accidental means or not.” It is 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.” Imperial Fire Insurance Co. v. Coos County, 151 U. S. 452, 462, 14 S. Ct. 379, 38 L. Ed. 231. See, also, U. S. Fidelity & G. Co. v. Guenther, 281 U. S. 34, 50 S. Ct. 165, 74 L. Ed. 683; East and West Insurance Co. v. Fidel (C. C. A. 10) 49 F.(2d) 35; Chase v. Business Men’s Assurance Co. (C. C. A. 10) 51 F.(2d) 34, and cases therein cited.

There being no ambiguity in the language used, there is no room for construction ; the undisputed facts bringing the case squarely within the four corners of the exemption, the appellant was entitled to an instructed verdict.

The appellee suggests several answers to the apparently impregnable logic of appellant’s position. The first answer, and the one followed by the trial court in its charge to the jury, is that there may be a recovery on an accident insurance policy where the immediate cause of death is disease, provided that an accident is the proximate cause of the disease; or, otherwise stated, if an accident causes a death, there may be a recovery notwithstanding that a disease intervenes and is a link in the chain of causation. This rule is amply sustained by authority. United States Mutual Accident Ass’n v. Barry, 131 U. S. 100, 9 S. Ct. 755, 33 L. Ed. 60; National Masonic Acc. Ass’n v. Shryock (C. C. A. 8) 73 F. 774; Western Commercial Travelers’ Ass’n v. Smith (C. C. A. 8) 85 F. 401, 40 L. R. A. 653; New Amsterdam Casualty Co. v. Shields (C. C. A. 6) 155 F. 54; Illinois Commercial Men’s Ass’n v. Parks (C. C. A. 7) 179 F. 794; Aetna Life Ins. Co. v. Wicker (C. C. A. 2) 240 F. 398; Freeman v. Mercantile Mutual Acc. Ass’n, 156 Mass. 351, 30 N. E. 1013, 17 L. R. A. 753; Central Acc. Ins. Co. v. Rembe, 220 Ill. 151, 77 N. E. 123 5 L. R. A. (N. S.) 933, 110 Am. St. Rep. 235, 5 Ann. Cas. 155; Travelers’ Insurance Co. v. Murray, 16 Colo. 296, 26 P. 774, 25 Am. St. Rep. 267; Omberg v. U. S. Mutual Acc. Ass’n, 101 Ky. 303, 40 S. W. 909, 72 Am. St. Rep. 413; Stanton v. Travelers’ Ins. Co., 83 Conn. 708, 78 A. 317, 34 L. R. A. (N. S.) 445, and note. In many of the cited cases, the contract expressly provided that there should be no liability if death resulted directly or indirectly from disease, the courts nevertheless holding, and we think correctly, that if the accident was the direct and sole cause of the disease, the accident was the proximate cause of the death. But none of the eases decided on this principle, which we have examined, contains the unusual clause here involved, and which apparently is designed to avoid the doctrine of proximate cause, — the restrictive phrase “whether caused by accidental means or not.” It is true that the phrase prevents recovery in many eases where an accident is the sole, proximate and only cause of death; but it is the contract which the parties made; it is clear and unambiguous, and we have no alternative but to enforce it. The only reported ease cited construing this unusual provision is Order of United Commercial Travelers v. Dobbs (Tex. Civ. App.) 204 S. W. 468, which is in accord with our conclusion.

The appellee further suggests that so construed, it conflicts with the agreement to pay death benefits in case an accident is the sole and proximate cause of death; that there is therefore an ambiguity which, under familiar rules, should be resolved in favor of the insured; that if the contract be otherwise construed, it is not an insurance policy but a trap for tbe unwary. This contention, as we understand it, is bottomed on the proposition that between every aeeident and ensuing death, disease or infection intervenes. We cannot agree. In the first place, if death is caused by an infection which is introduced through an open and visible wound, there is liability; again, many deaths follow accidents almost instantaneously, and without the intervention of any disease, as is evidenced by airplane disasters and by deaths occurring on hunting trips. It is true that the exemptions in the constitution are liberal, and that the protection afforded is narrow, ■a situation that may be reflected in the premium exacted.

The appellee urges that the exemptions in the constitution are not a part of the contract — in fact, the argument is that none of the 17 pages of that document devoted to insurance is a part of the contract. Two reasons are assigned in support of this argument. It is contended that the first paragraph of the certificate promises to pay .a benefit for accidental death without any reservations; that the provisions of the succeeding paragraph should be ignored as contradicting the unqualified promise of the first paragraph. But we are not at liberty to determine the rights of the parties by one paxa^-, graph, or one sentence, or one clause. The certificate must be read as a whole; so reading it, it is entirely clear that the constitution, by-laws and articles of incorporation are a part of the contract and “govern the payment of benefits.”

Appellee’s second contention is that the constitution cannot be considered as part of the contract, because section 6731, C. 0. S. 1921, provides that “the policy, together with the application therefor, a copy of which application shall be endorsed upon or attached to the policy and made a part thereof, shall constitute the entire contract between the parties.”

The appellant claims that this section does not apply because section 6737 exempts “associations operating on the fraternal plan.” To which appellee replies that appellant is not so operated because it does not have a “representative form of government” as required of fraternal associations by the Oklahoma statutes. Session Laws 1923, p. 160, c. 94. Appellee grounds her objection to appellant’s form of government upon the proposition that Past Counselors are entitled, ex officio, to sit on the governing bodies of the Order, together with presently elected representatives. But these Past Counselors were once elected by the membership ; the obj eetion made goes to their tenure, and not to their nonrepresentative character, and appears to be without substance.

But there is a more fundamental objection to this contention of appellee. A mere reading of all of section 6731 demonstrates, beyond peradventure of doubt, that it deals only with life insurance policies, and has nothing to do with accident insurance. The first sentence of the section reads “No policy of life insurance shall be issued,” etc. The sections preceding and following deal exclusively with life insurance. But still more convincing is the section itself. It requires that all life insurance policies shall provide in substance (among other things) that if the age of the insured has been misstated, the policy or the premium shall be adjusted to correspond; that the policy shall participate in the surplus of the company, and for the manner of paying dividends to the policyholder; that after three premiums have been paid, there shall be a specified loan value; that in case of default in payment of premiums after three years, the insured shall be entitled to the reserve on the policy in certain optional forms. There are other provisions, but these are sufficient to demonstrate that the section can have no possible application to aeeident policies, the premiums on which are not graduated by the age of the insured, which .do not participate in the surplus of the company, which pay no dividends, which have no reserve values, and which afford the insured no unqualified right to keep the policy in force by the payment of premiums.

We conclude that the court erred in refusing to direct a verdict for the defendant. The cause is therefore reversed and remanded.

Reversed and remanded.


text:
    BACH v. WESTERN STATES LIFE INS. CO.
    No. 374.
    Circuit Court of Appeals, Tenth Circuit.
    July 6, 1931.
    H. L. Mulliner, of Salt Lake City, Utah, for appellant.
    Frank A. Johnson, of Salt Lake City, Utah (Charles C. Dey, A. L. Hoppaugh and Robert E. Mark, all of Salt Lake City, Utah, on the brief), for appellee.
    Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.
   McDERMOTT, Circuit Judge.

The plaintiff (appellant) was denied recovery on a $5,000 policy of insurance issued on May 10, 1915, on the life of her husband, who died on May 27, 1927. The defense was that the policy lapsed on July 2, 1925. The facts are agreed.

The policy is the ordinary “old-line” life policy, with reserve values. It provides:

“The consideration for this insurance and all benefits hereunder shall be the declarations, answers and agreements made in the application for this policy, which is made a part hereof, and the payment of One hundred and Eighty-two and 00/100 Dollars in advance before this contract shall take effect, as the premium for an insurance terminating on the Tenth day of May, 1916.
“In consideration of the said application and the payment to the Company of a like amount in the succeeding years, at the Home Office of the Company on or before the same days, or upon the presentation of a receipt for the said amounts signed by the Secretary of the Company and countersigned by an authorized agent of the Company, this contract shall be renewed and continued as an ordinary life policy, subject to all of the provisions herein.
“If any premium shall not be paid on or before the date when due, the, liability of the Company hereunder shall be only as herein-before provided.”

The policy includes a table of guaranteed reserve values which sets out the “Cash or Loan Value,” the “Paid-up Insurance” and the “Automatic Term Insurance” at the end of each policy year commencing with the second. As to loans, the policy provides that the company will advance, on request and on the sole security of the policy, an amount up to the cash value of the policy; that such loan shall bear interest at five per cent, payable at the end of each policy year. It provides :

“Failure to repay any such advance or to pay interest shall not avoid this policy unless the total indebtedness hereon to the Company shall equal or exceed the cash value at the time of such failure, nor until one month after notice shall have been mailed by the Company to the last known address of the Insured or of the Assignee of record, if any, at the Home Office of the Company.”

It further provides:

“If any indebtedness to the Company on account of this policy shall exist at the time the above values become available, such indebtedness shall reduce the amount of the said loan, cash or paid-up values, or shall shorten the extended insurance period, which values or period shall then be adjusted on the basis originally used in their calculation.
“Any indebtedness to the Company, including any balance of the premium for the insurance year remaining unpaid, will be deducted in any cash settlement of this policy or will reduce, proportionately, any other benefit thereunder.”

While the policy gives the insured three options as to his reserve values, it provides that—

“If any premium shall not be paid on or before the date when due, the full amount of insurance hereunder will, without action upon the part of the Insured, automatically continue from said due date as term insurance, during the term, including the period of grace, specified in column three of the accompanying table.”

At the end of the eighth policy year, the policy carried a cash value of $825 and an extended insurance for 7 years and 204 days (which extends beyond the date of the death of the insured). However, on June 9, 1922, the insured availed himself of the loan provisions of the policy and borrowed $601.80, and executed a loan agreement , by which the insured agreed—

“To pay said Company interest on said loan at the rate of 5 per cent, per annum, payable in advance from this date to the next anniversary of said policy, and annually in advance on said anniversary and thereafter.
“To pledge, and do hereby pledge, the value of said policy as sole security for the payment of said loan and interest.”
“That said loan shall become due and payable (a) Either if any premium on said policy or any interest on said loan is not paid on the date when due, in which event said pledge shall, without demand or notice of any kind, every demand and notice being hereby waived, be foreclosed by satisfying said loan in the manner provided in said policy.”

The premium of $182, due May 10, 1923, was never paid, notwithstanding the company sent the insured eight notices of the delinquency. Neither did the insured pay any part of the principal or interest of the loan of $601.80. On June 11, 1923, the company charged the then due and unpaid loan of $601.80 against the reserve value of $825; the balance of $223.20 was applied to automatic term insurance which expired July 2, 1925, which was two years prior to the death of insured. If the company had the right to charge this note against the reserves on the policy, which was the sole security for the loan, the trial court was right. If it did not have such right, then plaintiff is entitled to recover.

The action of the company was in accord with the contract of the parties. The loan agreement provided that the loan should become payable if any premium, or interest on the loan, was not paid when due, which was (including the grace period) June 10, 1923. The agreement further provides that in that event, notice and demand is waived, and the pledge foreclosed by satisfying the loan as provided in the policy. The policy provides that such indebtedness shall reduce the amount of the reserve values “or shall shorten the extended insurance period” and that “any indebtedness * * * will reduce, proportionately any benefit” under the policy. Moreover, such action is in accord with sound and settled insurance practices. By paying premiums for eight years, the insured built up a reserve of $825. He could take this in cash, or he could purchase extended insurance for a term, or he could purchase a paid up policy for a limited amount. What he did was to take $601.80 in cash, and use the balance to purchase term insurance. The prayer of the plaintiff is that she be entitled to take the reserve in cash and also have its value in extended insurance. This is contrary to the agreement of the parties, and no insurance company could exist that paid out its reserves twice.

Plaintiff relies, to sustain this unusual contention, largely upon the clause of the policy which provides that the policy shall not be avoided for failure to pay a policy-loan, unless (a) the loan and interest exceeds the cash value of the policy nor (b) until after a month’s notice to 'the insured. This clause has no application to the facts in this case, because the policy was not avoided for failure to pay the policy-loan; the policy, in the true sense, was not avoided; the policy provided for certain rights of the insured in event he ceased paying premiums; he did cease paying premiums and he has had his rights. But if we consider the policy as being “avoided”, it was the nonpayment of the premium and not the policy-loan that resulted in the avoidance. The loan was paid by charging it against the reserve. Reading the entire policy, the purpose of this clause is clear. The accruing interest on a policy-loan might equal the reserve value of the policy between premium paying dates. It would be manifestly unfair to avoid the policy on the date the accruing interest equalled the reserve values without giving notice to the insured. No such situation is here presented.

The plaintiff cites several cases in support of her contention; we have examined them, and in our opinion they may be distinguished from the case at bar; but if they are not distinguishable, then we must decline to yield to their authority, for this court is committed to the proposition that where the provisions of a contract are clear and unambiguous, the parties must abide thereby. Chase v. Business Men’s Assurance Company (C. C. A. 10) 51 F.(2d) 34; East & West Insurance Co. v. Fidel (C. C. A. 10) 49 F.(2d) 35; Order of United Commercial Travelers of America v. Edwards (C. C. A. 10) 51 F.(2d) 187. In support of the conclusion at which we have arrived, see New York Life Ins. Co. v. Slocum (C. C. A. 3) 177 F. 842; Pacific Mutual Life Ins. Co. v. Davin (C. C. A. 4) 5 F.(2d) 481; Meridian Life Insurance Co. v. Hobbs, 200 Ala. 487, 76 So. 429, L. R. A. 1918A, 904; Rife v. Union Central Life Ins. Co., 129 Cal. 455, 62 P. 48; Hally v. Standard Life Ins. Company, 38 Ga. App. 623, 144 S. E. 674; Mills v. National Life Insurance Co., 136 Tenn. 350, 189 S. W. 691; Rye v. New York Life Insurance Co., 88 Neb. 708, 130 N. W. 434, Alabama National Life Ins. Co. v. Smith, 214 Ala. 585, 108 So. 524; Black v. Franklin life Ins. Co., 133 Ga. 859, 67 S. E. 79.

Plaintiff undertakes to deflect the force of these authorities by asserting that “This policy contains no provision that the policy shall be terminated for nonpayment of premiums.” The policy contains the usual provisions according to the insured the right to keep the policy alive by the payment of premiums, and defining his rights in event of failure to pay renewal premiums. And, of course, the regular payment of premiums is the very essence of the agreement. Mr. Justice Bradley, in New York Life Ins. Co. v. Statham, 93 U. S. 24, 30, 23 L. Ed. 789, said:

“But whilst this is true, it must be conceded that promptness of payment is essential in the business of life insurance. All the calculations of the insurance company are based on the hypothesis of prompt payments. They not only calculate on the receipt of the premiums when due, but on compounding interest upon them. It is on this basis that they' are enabled to offer assurance at the favorable rates they do. Forfeiture for non-payment is a necessary means of protecting themselves from embarrassment. Unless it were enforceable, the business would be thrown into utter confusion, * * *' The case, therefore, is one in which time is material and of the essence of the contract. Non-payment at the day involves absolute forfeiture, if such be the terms of the contract, as is the ease here.”

To the same effect, see Klein v. Insurance Company, 104 U. S. 88, 26 L. Ed. 662; Thompson v. Insurance Company, 104 U. S. 252, 26 L. Ed. 765; Iowa Life Insurance Company v. Lewis, 187 U. S. 335, 23 S. Ct. 126, 47 L. Ed. 204.

The judgment is affirmed.