author: CAFFEY, District Judge.

text:
    THE CITY OF ROME. In re OCEAN S. S. CO. OF SAVANNAH.
    District Court, S. D. New York.
    Nov. 28, 1930.

      See also 24 F.(2d) 729.
   The report of Commissioner Van Vechten Veeder on damages is as follows:

Pursuant to the interlocutory decree in this cause I have taken proofs as to the amount, validity, and priority of all claims, and I submit herewith my report thereon, both in respect of the claims for death and with regard to the damages sustained by the United States as owner of submarine S-51.

On the night of September 25, 1925, some twelve miles east of Block Island, the steamship City of Rome collided with the' United States submarine S-51. The submarine sank, and thirty-three lives were lost. Claim is made in this proceeding for damages resulting from the loss of thirty-two lives. These claims are governed by the Act of March 30, 1920, c. 111 (41 Stat. 537 [46 USCA §§ 761-768]), which reads:

“§ 1. Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.” (46 USCA § 761.)

“§ 2. The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought and shall be apportioned among them by the court in proportion to the loss1 they may severally have suffered by reason of the death of the person bv whose representative the suit is brought.” (46 USCA § 762.)

On the face of the statute the specified beneficiaries take severally, not as in the Federal Employers’ Liability Act (45 USCA §§ 51-59), in the alternative. In limiting recovery to pecuniary loss, the statute is in accord with the Federal Employers’ Liability Act (45 USCA §§ 51-59), as to which the Supreme Court has said: “The damages should be equivalent to compensation for the deprivation of the reasonable expectation of pecuniary benefit^ that would have resulted from the continued life of the deceased.” Chesapeake & Ohio Ry. Co. v. Kelly, 241 U. S. 485, 36 S. Ct. 630, 631, 60 L. Ed. 1117, L. R. A. 1917F, 367. In other words, the beneficiary is to have what might reasonably be expected to accrue had the deceased lived.

The manifest purpose of Congress was to compensate beneficiaries as fully as money can for the loss sustained. Adequate allowance must, of course, be made for the earning power of money; an ascertained amount based upon the deprivation of future benefits must be discounted to make it equivalent to their present value. Chesapeake & Ohio Ry. Co. v. Kelly, supra. Thus circumscribed, the assessment of damages resulting from loss of life comprises many elements. The deceased’s age,- his earning capacity, his surviving benefieiaiies, their ages, and his contributions to them, his condition of health, his prospects of advancement, are among the elements to be considered. Drowne v. Great Lakes Transit Corp. (C. C. A.) 5 F.(2d) 58.

This holocaust has not deterred me from the most careful consideration of each individual case in the light of every material element of pecuniary loss. Before dealing with them separately, I may avoid repetition by considering first some features common to all the claims, or applicable to various groups.

The deceased were, with few exceptions, very young. Their expectancy of life was therefore high. Computation of expectancy of life is, after all, based upon averages, and is quite as useful as a cheek as it is as a guide. For “no man knows when the night cometh”; nor is he wiser with knowledge of his expectancy of life.

The deceased were employed in the naval service. Hence their earning capacity was fixed and readily ascertained. Their pros-' peets of advancement were, within certain limits, reasonably assured. But I have not felt justified in attaching particular impor-! tance to the prospects of promotion of commissioned officers beyond the grade of lieutenant commander, because further promotion is dependent upon selection. Similarly, in the case of enlisted men, I have felt that particular consideration of their prospects of promotion should be confined to the term of their enlistment. Of course, repeated enlistment indicates a more settled purpose to continue in the service.

The testimony concerning actual contributions by the deceased is often so casual and vague that I have had to rely finally upon my judgment of the credibility of the witness. And all these men were so young that there was hardly an instance of a seasoned record of conduct upon which habit could be predicated. Most of the married men had been recently married; their wives were young; and, even where there were children, the family life had been so short that it afforded little or no forecast.

Having headquarters at New London, the married officers usually maintained a home ashore; married enlisted men seldom did so. Although some of the officers deposited their entire pay in a joint account, a specific allowance to wives was common among both officers and enlisted men. Where there were children, this allowance commonly approximated the whole pay received. When a man maintained a home ashore on a specific allowance to his wife, I have generally estimated' that the interest of his widow in the allowance was at least one-half. Where there is a child, I have proceeded upon the common experience in life that the father and mother diminished their individual interest to bring up the child. Similarly, when the surviving beneficiaries are mother and child, where the statute requires the interests of each to be specified, the mother’s portion is generally smaller than it would be had she been childless. This seems to be inevitable in the division of a given sum; the compensations of motherhood are seldom pecuniary.

The government contends that the pecuniary interest of a child should be limited to minority. No fixed rule can be followed. Birkett v. Knickerbocker Ice Co., 110 N. Y. 504, 18 N. E. 108. But there is much to be said for it in practical operation, at least with male children. In general, it is the American way of life that children should support themselves by the time they attain their majority. Indeed, in the limited scale of living available to the families of these enlisted men, the children would ordinarily be expected to be self supporting at an earlier age.' An officer’s mode of life might afford exceptions; yet, if a son follows his father in the naval service, as often happens, he would be "self-supporting before attaining majority.

Several of the widows wbo are claimants have remarried. The government contends that in such eases the pecuniary loss is limited to the date of remarriage; her pecuniary loss is viewed in terms of her marital status and the consequent right to support, and, when that is restored by remarriage, her loss is said to have been recouped. But the uniform course of authority for more than á generation is to the effect that remarriage of a widow neither bars nor mitigates her pecuniary loss arising out of- the death of her husband. Lees v. New York Consolidated Railroad Co., 109 Misc. Rep. 609, 180 N. Y. S. 546, affirmed 193 App. Div. 882, 182 N. Y. S. 933; Chicago & Eastern Illinois Railroad Co. v. Driscoll, 207 Ill. 9, 69 N. E. 620; O. S. Richardson Fueling Co. v. Peters, 82 Ill. App. 508; Davis v. Guarnieri, 45 Ohio St. 470,15 N. E. 350, 4 Am. St. Rep. 548; Philpott v. Pennsylvania Railroad Co., 175 Pa. 570, 34 A. 856; Wabash Railroad Co. v. Gretzinger, 182 Ind. 155,104 N. E. 69; Consolidated Stone Co. v. Morgan, 160 Ind. 241, '66 N. E. 696; Katz v. Northern Kansas City Development Co. (Mo. App.) 14 S.W.(2d) 701; Platt v. Cape Girardeau Bell Telephone Co. (Mo. App.) 12 S.W.(2d) 933; Davis v. Springfield Hospital, 204 Mo. App. 626, 218 S. W. 696; Dimmey v. Railroad Co., 27 W. Ya. 50, 55 Am. Rep. 292; Georgia Railroad Co. v. Garr, 57 Ga. 277, 24 Am. Rep. 492; Archer v. Bowling, 166 Ky, 139, 179 S. W. 15; Jones v. Kansas City Southern Railway Co., 137 La. 178, 68 So. 401; Gulf, Colorado & Santa Fe Railway Co. v. Younger, 90 Tex. 387, 38 S. W. 1121; Gulf, Colorado & Santa Fe Railway Co. v. Moser (Tex. Civ. App.) 277 S. W. 722; Texas Electric Railway v. Stewart (Tex. Civ. App.) 217 S. W. 1081; International & G. N. Railway Co. v. Boy-kin (Tex. Civ. App.) 85 S. W. 1163; St. Louis, Iron Mountain & Southern Railway Co. v. Cleere, 76 Ark. 377, 88 S. W. 995. Bangor & Aroostook Railroad Co. v. Jones (C. C. A.) 36 F.(2d) 886, and Motor Wheel Corporation v. Dodson (C. C. A.) 23 F.(2d) 282, are not opposed. These cases deal with various phases of this issue; they apply various and dissimilar statutes, and in none of them is the discussion of this issue adequate. Yet the absence of any authority to the contrary is significant. Under such circumstances I have not stopped a widow’s pecuniary loss at the date of her remarriage. It would be pure assumption to do so; there is no evidence before me to indicate whether she is as well off pecuniarily, 'or better or worse, by reason of her remarriage.- Nor do I think that any such consideration would be relevant. It may often happen that, by reason of inheritance, or insurance, or by reason of her own industry and superior capacity, a widow may be much better off pecuniarily after her husband’s death than she had ever been in his lifetime. No one has ever suggested that such considerations must be taken into account in computing her pecuniary loss. Her remarriage is analogous. The fundamental question is, not her financial situation after her husband’s death, but what she might reasonably have expected to receive from him had he lived.

In the consideration of the cases of the deceased who were unmarried, where the claimants are parents, other factors enter. Inasmuch as the deceased were (with two or three exceptions) of age, the relationship carries, as a rule, no legal obligation of support. There are exceptions, such as Massachusetts General Laws, c. 273, § 20, which makes it .a misdemeanor for adult children to fail to provide for the support of destitute parents. But adult children who would ignore such a strong moral obligation could easily evade legal compulsion. Where parents are claimants, therefore, regard must be had solely to actual contribution. Occasional gifts will not form the basis for pecuniary loss, unless they are sufficient to indicate a consistent purpose to contribute. Moreover, the continuity of contributions to parents can hardly be regarded with the same assurance as support of wife and children. It must also be borne in mind that the shorter expectancy of life of the parents prevails.

In the application of these views, I proceed to the particular consideration of eaeh one of the deceased with respect to whom claim is made. For- convenience, they are arranged in alphabetical order. All statements as to ages have reference to the date of the casualty, September 25, 1925.

Paul Daniel Berk, aged 19, was an engineman, second class, drawing $72 a month, and living pay. In 7 months he would probably have become an engineman, first class, with an increase of $12 a month in his base pay. The claimants are his wife, aged 22, and a child, Paul D. Berk, Jr., who was bom February 7, 1926, after his father’s death. His wife testified that he contributed between $60 and $65 to the support of the family. The widow is engaged to be married. The pecuniary loss in this ease is fixed at $12,-000.1 This sum is apportioned $7,000 to the mother and $5,000 to the child.

Ralph E. Cassidy, aged 25, was a gunner’s mate, second class, drawing $84 a month. He was on his second enlistment, and was already eligible for promotion to gunner’s mate, first class, at an increase base pay of $12 a month. He is survived by his father and mother. But he gave, nothing to his father, and during his 8 years’ service in the Navy he had given his mother, aged 47, only $425. This was given during the last year of his life, and was given for the purchase of a home. Prior to that he once gave her $100. It is very difficult to fix the pecuniary loss where there is no regular contribution. The indications are that the deceased was disposed to help in emergencies,, but that is about all. The mother’s pecuniary loss is fixed at $1,500.

Henry Lee Crawford, aged 24, was a radioman, first class, drawing $97.40 a month. He was on his second enlistment. He would not have been eligible for promotion 'for 2 years. His father and mother survive him,' but there is no proof of any contribution to his father. His mother, who is 45, testified that he sent her $15 a month during his first enlistment. He made no regular contribution during his second enlistment, but sent her small sums from time to time. She thought it would average $10 a month. The mother’s pecuniary loss is fixed at $1,500.

Rodney Hiram Dobson, aged 32, was a lieutenant, senior grade. He entered the service in 1917. His pay was $336 a month, made up of a base pay of $220, rental allowance, $80, and subsistence, $36. He might have expected promotion to the grade of lieutenant commander in 1937. The claimants are his wife, aged 25, whom he married June 25, 1921, and a son, Rodney Hiram Dobson, Jr., aged 2 years. The family lived in New London, Conn. Lieutenant Dobson paid $320 a month into a joint bank account, out of which the family disbursements were made. Mrs. Dobson remarried May 24, 1928. The pecuniary loss in this case is fixed at $35,000. This sum is apportioned $19,000 to the mother and $16,000 to the child.

Allen Clifford Earle, aged 25, was an engineman, first class, drawing $97.40 a month. He was on his second enlistment. In 7 months he could reasonably have expected promotion to chief machinist’s mate, with an increase in base pay of $15 a month for the first year and $42 a month thereafter. The claimants are his wife, aged 26, and á son, Allen Earle, Jr., aged about 2. His wife, whom he married June 24,1923, testified that he contributed all his pay, save $10 a month, to the support of the family. Mrs. Earle remarried July 8, 1928. The pecuniary loss in this case is fixed at $14,000. This sum is apportioned $8,000 to the mother and $6,000 to the child.

Edmund Webster Egbert, aged 24, was an ensign. He entered the service as a midshipman in 1919. His prospects of promotion were lieutenant, junior grade, in 1926; lieutenant in 1931, lieutenant commander in 1943. His pay was $183 a month, made up of $125 base pay, rental allowance, $40, and subsistence, $18. The claimants are his wife, aged 21, and a son, Edmund Webster Egbert, Jr., aged 3 months. His wife, who married the deceased April 5,1924, testified that the entire ineome of the deceased was used for the upkeep of their home. Mrs. Egbert remarried May 19, 1928. The pecuniary loss in this case is fixed at $22,000. This sum is apportioned $12,000 to the mother and $10,-000 to the child.

Harry Dick Elser was a coxswain, drawing a base pay of $60 per month, which, with other allowances, aggregated $71 monthly. He was nearly 26. He enlisted in 1918, and was therefore well on in his second enlistment. On the date of his death he was eligible for promotion to boatswain’s mate, second class, in which the base pay is $72 per month. The claimant is his father, aged 50. During the last year or two he had received $30 or $40 a month from his son. His pecuniary loss is fixed at $4,300.

Rudy Firm, aged 25, was a machinist’s mate, first class, drawing $97.40 a month. He was on his second enlistment, and could not have expected promotion unless he enlisted a third time. The claimant is his mother, aged 53, who is apparently infirm, and is supported by her children. Her testimony is to the effect that the deceased contributed $20 a month. Her pecuniary loss is fixed at $2,500.

Frederick D. Foster, aged 26, was a lieutenant, junior grade. He was appointed a midshipman in 1918. His pay was $271 a month, made up of $175 base pay, $60 rental allowance, and $36 subsistence. He would probably have been a lieutenant, senior grade, in 1929, and lieutenant commander in 1942. The claimants are his wife, aged 28, whom he married June 4, 1924, and a daughter/ Frances Lloyd Foster, aged 4. The family' lived at New London, Conn. Lieutenant ' Foster paid about $225 a month in a joint bank account, out of whieh the family expenses were paid. The pecuniary loss in this case is fixed at $28,000. This sum is apportioned $16,000 to the mother and $12,-000 to the child.

John Law Gibson, aged 24, was an engineman, second class, drawing $84.20 a month. He was on his second enlistment. In 1 year and 3 months he could have expected promotion to engineman, first class, with an increase of $12 a month in his base pay. He left a wife of 18, whom he had married April 5, 1925. She remarried May 21, 1926. During her brief married life with the deceased his pay went to maintain their home.4 Her pecuniary loss is fixed at $8,500.

Turner Ashby Glascock, aged 28, was a lieutenant, junior grade. His pay, with all allowances, was $356 a month. He would normally have been commissioned lieutenant in 1926, and lieutenant commander in 1939. The claimant is his wife, aged 30, whom he married October 4, 1919. She has valvular heart trouble. They had. a joint account, to whieh he contributed $325 a month. Her pecuniary loss is fixed at $27,000.

James D. Haselden, Jr., aged 28, was a lieutenant, junior grade. He was graduated from the Naval Academy June 7, 1919. His base pay was $183 per month, with an allowance of $18 a month for subsistence, or a total of $201 a month. Had he lived to December, 1925, he would probably have become a lieutenant, senior grade, and a lieutenant" commander in 1935. He helped his father in a real estate purchase; and since an accident in 1923 his father had been practically dependent upon him. But the father died January 22, 1930, and no claim is made on his behalf. He had two sisters. He "contributed to the support of his elder sister, Rebecca Louise, until her education was finished and she married.. Then he looked after his younger sister, Mary Lucia, who is the sole claimant; she was also the beneficiary under his will. While she was in high school, he clothed her. During the last 2 years of his life, while Mary Lucia was in college, he gave her $1,000 annually. She continued her college course through part of 1927, having paid her expenses out of the moneys received under her brother’s will, namely, $1,000 insurance, 6 months’ gratuity, and $100 back pay. But ill health compelled her to withdraw before graduation, and she had 3 months’ work to do before she received her degree. She had been teaching at intervals, I gather, since September, 1929. Prior to that time she had not been strong enough to work. The evidence discloses a strong sense of family obligation on Lieut. Haselden’s part. She was clearly dependent upon him at the time of his death, and he certainly indicated a purpose to fit his younger sister to support herself. If, having done so much, his sister’s bad health made it hazardous for her to attempt to support herself, I think she had substantial expectations > of further assistance from her brother. Of course, his own marriage would probably have affected the situation to some extent; but he was unmarried at 28. Her pecuniary loss is fixed at $3,000.

Franklin Pierce James, aged 33, was a chief motor machinist’s mate, drawing $149.-90 a month. He was on his third enlistment, and had reached the highest petty officer grade. The claimants are his wife, aged 37, and a son, Benjamin Franklin James, Jr., aged 5. His wife, whom he married January 3, 1913, testified that he contributed around $140 á month for the support of the family. The son has congenital heart disease and a deformed spine. His expectancy of life is very much reduced by the condition of his heart, which will inevitably prove fatal. He must live a restricted life, and will require support. The pecuniary loss in this ease is fixed at $19,000. This sum is apportioned $10,000 to the mother and $9,000 to the child.

Walter E. Lawton, aged 27, was an electrician’s mate, first class, drawing $101.60 a month. He was on his third enlistment, and within 2 years he could have expected promotion to chief electrician’s mate at a base of $99 a month for the first year and $126 a month thereafter. The claimants are his wife, aged 25, and his mother. Substantially his whole income went to pay household expenses. The pecuniary loss of the widow is fixed at $15,000. There is no basis for any award to the mother.

Brady D. Lindsay, aged 22, was an engineman, first class, drawing $77 a month. It was his first enlistment. Nine months from the date of his death he would normally have ‘become an’ engineman, first class, with an increase in base pay of $12 a month. . The claimant is his mother, aged 40, to whom he had contributed $30 a month. Her health has been bad during the past 10 years. Her pecuniary loss is fixed at $5,000.

John (alias Sylvester) J. McCarthy, aged 20, was a seaman, first class, drawing $59 a month. He was on his first enlistment. In approximately 1 year he would have become a coxswain, with an increase in his base pay of $6 a month. The claimant is his mother, aged 63, to whom he gave “about $25-$30 a month.” Her pecuniary loss is fixed at $3,500.

George Henry Martin, aged 40; was an officer’s cook, second class, drawing $95 a month. He was on his fifth enlistment. The claimants are his wife, aged 21, whom he married November 29, 1921, and two sons, George Henry Martin, Jr., aged 1 year, and Leonard Gordon Martin aged 4 months. His wife testified that he had sent her regularly $104 a month, which she supposed was his pay. The pecuniary loss in this ease is fixed at $15,000. This sum is apportioned $5,000 to the mother and $5,000 to each child.

Osear J. Milot, aged 18, was a fireman, second class, drawing $59 a month. In one year and a half he would have been eligible for promotion to fireman, first class, with an increase in his base pay of $6 a month. The claimant is his mother, aged 40. When he was 8 months of age his father died, and his mother married her present husband in 1910. His mother testified that he sent her “from $15 to $25 a month.” Her pecuniary loss is fixed at $4,500.

Frank L. Mims, aged 21, was a fireman, third class, drawing $65 a month. In 1 year and 6 months he would have been eligible for promotion to machinist’s mate, second class, with an increase in base pay of $12 a month. The claimant is his mother, aged 36, who had received about $15 a month from her son. Her pecuniary loss is fixed at $2,800. Mrs. Mims has been separated from her husband for several years. She has five other children, who have apparently had the benefit of the contributions made by the deceased. But he gave the money to her, and the award should go to her.

Robert S. Noble, aged 27, was a motor machinist’s mate, first class, drawing $97.40 a month. He was on his third enlistment. In 3 years he would normally have become chief machinist’s mate, with an increase in his base pay of $15 a month for the first year and of $42 a month thereafter. The claimant is his mother, aged 54, who has been a widow since December, 1929. For 3 years he had given his mother $40 a month. Her pecuniary loss is fixed at $5,500. There is no basis for any award' to the sister of the deceased.

Harlow Milton Pino, aged 28, was a lieutenant, junior grade. He was graduated from the Naval Academy in 1921. His pay was $193 a month. In ordinary course he would have become a lieutenant in 1927, and lieutenant commander in 1941. His family consists of father and mother, two brothers, and a sister. There is no proof of any contribution to his father or his brothers or his sister. The sole possible beneficiary is his mother, aged 50. She testified that the deceased possibly gave her approximately $25 a month, but this amount seems to be a mere estimate of the value or aggregate of gifts to her from time to time when her son was at home. The family is evidently in prosperous financial condition; the father has retired, and lives on his income from investments, and hei has established a trust fund for his wife and children. I infer that the deceased did not consider it necessary to contribute. There is some proof of a vague promise by Lieut. Pino to reimburse his mother for money received by him while he was at the Naval Academy, “possible $500 a year”; but he had not made any payment on account of this. In fact, he was himself in debt when he died. The only possible pecuniary loss that the mother sustained is the loss of repayment of advances, the amount of which is doubtful, since no account of them was kept. Her pecuniary loss is fixed at $1,000'.

James Moreland Schofield, aged 22, was a radioman, first class, drawing $89 a month. The claimants are his aunt, Leah Schofield, aged 45, and sister, Alice Redfem, aged 33, both married. The mother of the deceased died when he was 7, and Mrs. Schofield brought him up. She testified to contributions of $5 a month. Her pecuniary loss is fixed at $750. There is no proof of pecuniary loss on the part of Mrs. Redfern. The deceased once gave her $200 to buy a car, and he made small gifts at other timés when .he visited her.

Frank Archibald Shea, aged 24, was an electrician’s mate, first class, drawing $97.40 at death. He was on his second enlistment, and had been recommended for promotion. The claimant is his wife, aged 23. Subsequently, on September 8,1926, she married Lloyd B. Hazel, and on September 6, 1928, she.died. The only proof of contribution by the deceased to his wife is the testimony of her second husband that she had often said that the deceased sent her $70 a month. Although no objection was made to this testimony at the hearing, counsel for the United States now contends that there is no legal evidence of any contribution. I think the objection comes too late. Moreover, there is a reasonable presumption that he supported his wife. The wife’s pecuniary loss is limited in duration and extent to her lifetime. Sider v. General Electric Co., 238 N. Y. 64, 143 N. E. 792, 34 A. L. R. 158; Matter of Meekin v. Brooklyn Heights Railroad Co., 164 N. Y. 145, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635; Pitkin v. New. York Central & Hudson River Railroad Co., 94 App. Div. 31, 87 N. Y. S. 906; Cooper v. Shore Electric Co., 63 N. J. Law, 558, 44 A. 633. These cases, together with analogies drawn from Chicago, Burlington & Quincy Railroad Co. v. Wells-Dickey Trust Co., 275 U. S. 161, 48 S. Ct. 73, 72 L. Ed. 216, 59 A. L. R. 758; Reading Co. v. Koons, 271 U. S. 58, 46 S. Ct. 405, 70 L. Ed. 835; Union Steamboat Co. v. Chaffin’s Adm’rs (C. C. A.) 204 F. 412, and Carson v. Gore-Meenan Co. (D. C.) 229 P. 765, negative the government’s contention that all right of recovery .under this statute lapsed on her death. The pecuniary loss is fixed at $1,500.

John J. Sheehan, aged 25, was a motor machinist’s mate, first class, drawing $97.40 a month. He was on his second enlistment. In 2 years and 7 months he could have expected promotion to chief machinist’s mate at an increase in base pay of $15 a month for the first year and $42 a month thereafter. The claimants are his wife, aged 23, and a daughter, Gloria Ann Sheehan, aged 4. His wife, whom he married September 13, 1920, testified that all' his pay, save $10" a month, went to support the family. Mrs. Sheehan remarried December 28, 1927. The pecuniary loss in this case is fixed at $14,000. This sum is apportioned $8,000 to the mother and $6,000 to the child.

Herbert P. Snyder, aged 25, was chief signalman, drawing $149.90 a month. He was on-his third enlistment. The claimant is his wife, aged 25, whom he married July 11, 1925. She remarried April 1, 1930.. During the 2 months that she was married to the deceased, he paid their board and gave her $50 a month. Her pecuniary loss is fixed at $15,000. ' ■

Augustus Alexander Smith, aged 27, was a torpedoman, second class, drawing $87.80 a month. He was on his third enlistment. He was eligible for promotion to torpedoman, first class, with an increase of" $12 a month in his base pay. The claimants are his wife, aged 19, and a son, Albert Ash-ton Smith, aged 3 months. His wife, whom he married July 23, 1924, testified that he contributed $75 a month to the family support. The pecuniary loss in this ease is fixed at $13,000. This sum is apportioned $7,500 to the mother and $5,500 to the child.

Frederick Peter Teschemaeher, aged about 19, was á seaman, first class, drawing $59 a month. In 8 months he would probably have become coxswain, and in- 2 years and 2 months boatswain’s mate. His mother, aged 46, had received $20 a month from him. Her pecuniary loss is fixed at $3,000.

William Charles Teschemaeher was a twin brother of Frederick Peter Teschemaeher, with the same rank and pay; and he contributed the ■ same amount to his mother. Her pecuniary loss is fixed at $3,000.

Charles C. Thomas, aged 21, was a fireman, second class, drawing $59 a month. He was one of a large family, and left home on his mother’s death in 1921. He was almost halfway through his first enlistment. He came home from time to time when he was out of work. The claimant is his father, aged -71, to whom, prior to enlistment, he once gave $20. His father testified that, after enlistment, he wrote that, if his father and his younger brother, would settle down together he would send part of his wages after he got started in his work. The father testified that he had lived for 8 or 9 years with one of his daughters, and.did not mention his younger son again. Apparently he had a stroke in 1920. If it were permissible to assume that the deceased, had he lived, would probably have helped his father, the amount would still be left to imagination. In the absence of any contribution, it is idle to speculate about what the deceased might have done. There is no proof of pecuniary loss.

Stephen H. Triffitt, aged 24, was a torpedoman, third class, drawing $71 a month. He was on his second enlistment. He was eligible and had been recommended for promotion to torpedoman, second class,' which would have increased his base pay $12 a month. One year and 6 months from the date of his death he would have been eligible for promotion to torpedoman, first class, with a further increase of $12 a month in his base pay. • The claimant is his mother, aged 57, to whom in 1925 he had allotted $20 a month. She says he gave her “around $20 besides” each month. Her pecuniary loss is fixed at $5,000.

Robert Holland 'Wills, aged 28, was a torpedoman, first class, drawing $97.40 a month. He was on his second enlistment, but could not have expected promotion unless he re-enlisted. The claimant is his mother, aged 56. Her first husband, father of the deceased, died in 1903, and in 1919 she married her present husband. The mother testified that her son gave her $60 a month. In explanation of this rather unusual contribution, it appears that she suffers from rheumatism, and had been under expense for treatment. Her pecuniary loss is fixed at $6,000.

Kirlin, Campbell, Hickox, Keating & Mc-Crrann, of New York City, for petitioner Ocean S. S. Co. of Savannah.

Bigham, Englar, Jones & Houston, of New York City, for claimants Dobson, Egber and Haselden.

Lucien V. Axtell, of New York City, for claimant Charles T. Mims.

Robert E. Manley, of New York City (Horace M. Gray, Sp. Asst. U. S. Atty., of New York City), for the United States.

William A. Ryan, of Brooklyn, N. Y., for claimant Berk and others.

Barry, Wainwright, Thacher & Symmers, of New York City, for other petitioners.

Francis C. Wiseman, aged 25, was a torpedoman, third class, drawing $71 a month. He was on his second enlistment. In one month he would have become eligible for promotion to torpedoman, second class. The claimant is his mother, aged 53, to whom he contributed continuously over a considerable period $50 a month. She has been a widow since 1927, and lives with three of her children. • She set aside half of her son’s contribution for his benefit. But this was her own idea; it was an absolute gift. Out of this accumulation she paid the expense of his burial. Her pecuniary loss is fixed at $6,500.

The foregoing amounts, as apportioned, are awarded in each case to the legal representatives of the deceased. The death claims are entitled to priority in payment. In the similar case of The Steel Inventor the commissioner’s report expressly allowing the death claimants priority over all other claimants was confirmed by this court. The Steel Inventor, 36 F.(2d) 399, reversed on other grounds, 43 F.(2d) 958, 1930 A. M. C. 1468. The fact that a government vessel is involved does not alter the incidence of the limitation proceeding. In re United States Steel Products Co. (C. C. A.) 24 F.(2d) 657. It is stipulated that the damages sustained by the United States as owner of the submarine S-51 are $950,000, and..that the damages sustained by the City of Borne are $17,972.52.

CAFFEY, District Judge.

I have examined the authorities cited, and have considered the arguments I agree with the conclusions of the "commissioner, and feel that the grounds assigned in the report adequately sustain him. In consequence, there is no need for extended discussion. Accordingly, I shall content myself with adding only a few brief comments..

1. While the question raised with respect to the remarriage of widows seems not heretofore to have been squarely passed on by a federal court, the doctrine prevailing in the state courts (report, ante, pp. 336-343) impresses me as right, as certainly it is far preferable- in application to the consequences which would ensue from adopting a different doctrine, and I think its acceptance is plainly required if harmony is to be preserved with a closely related proposition which has been settled by the Supreme Court of the United States.

The best basis I have seen in the state decisions for refusing to mitigate damages of a widow because of remarriage is stated in Georgia Railroad & Banking Company v. Garr, 57 Ga. 277, 280, 24 Am. Rep. 492, and St. Louis, I. M. & S. Ry. Co. v. Cleere, 76 Ark. 377, 386, 88 S. W. 995. If we should enter upon an inquiry as to the relative merits of the new husband as a provider, coupled with his age, employment, condition of health, and other incidental elements concerning him, unavoidably we should embark upon a realm of speculation and be led into a sea of impossible calculations. Moreover, adherence to the rule followed by the commissioner seems essential to consistency with the holding that, úpon the death of the first husband, there was.“an immediate, final and absolute vesting” in his widow, if the statutory beneficiary, of a cause of action on that account. C., B. & Q, R. R. v. Wells-Dickey Trust Co., 275 U. S. 161, 163,164, 48 S. Ct. 73, 72 L. Ed. 216,59 A. L. R. 758.

2. Payment of death claims in full does not rest .for support exclusively on The Steel Inventor (D. C.) 36 F.(2d) 399, as seems to have been assumed by some counsel. On the contrary, under decisions of the Supreme Court of the United States itself, I see no es? cape, on the facts of the case at bar, from priority to the death claimants.

It was unequivocally determined in United States v. The Thekla, 266 U. S. 328, 45 S. Ct. 112, 69 L. Ed. 313, that, by coming into this proceeding to litigate its claim, the United States put itself upon the plane of, and subjected itself to the law measuring the rights of, the private owner of a vessel engaged in collision. It is also established by The Hamilton, 207 U. S. 398, 406, 407, 28 S. Ct. 133, 52 L. Ed. 264, that, as between the private owner who seeks damages for his lost ship and the successors in interest to those aboard that ship who perished by her sinking, the death claimants must be paid first. By coupling the two cases mentioned, The Steel Inventor is completely sustained.

It is urged that the death claimants cannot recover in direct suits against the government, Dobson v. United States (C. C. A.) 27 F.(2d) 807 — in part because members of the naval service are provided for by a pension system. This, however, seems to me to be entirely beside the point. One reason why nonliability of the sovereign'is immaterial is that, inasmuch as the limitation fund arises wholly from a nongovernment vessel, the cause of action of the death claimants is predicated solely upon the fault of the ship that survived the collision, and may be maintained regardless of whether the other ship was at fault, Erie R. R. Co. v. Erie Transportation Co., 204 U. S. 220, 225, 226, 27 S. Ct. 246, 51 L. Ed. 450. In consequence, the relation to the United States, called by counsel the employment status, of those who lost their lives in the S-51, is irrelevant to the inquiry on which we are engaged. As said, in regard to this very matter, in The Hamilton, at page 406 of 207 U. S., 28 S. Ct. 133, 135, the contract between the seaman who was drowned on and the owner of the sunken ship “does not affect the case.” If the death claimants were subordinated to, or even placed on an equality with the government, in its capacity as a shipowner who has intervened to prosecute its claim against the limitation fund, T think clearly they would be deprived of a right to which, as between themselves and the City of Rome, they are entitled.

3. So far as I can discover, no award was made by the commissioner to a child for a period beyond infancy. However, if the total going to a widow and her child be not excessive, then it seems to me that the apportionment, even though it were somewhat lib•eral to the child, might well be treated, on complaint of the only objectors here involved, as damnum absque injuria. After review of the gross going to a mother and her child or children in the cases of numerous claimants, I find none in which it was greater than it should be.

4. The mother of fireman Mims is thq only claimant who contends that an allowance is inadequate. When, however, all the facts are taken into account — including the hazardous nature of the occupation, the probability that a man of 21 will marry, the other reasonable probabilities with respect to the future course of a youth of the kind involved, the monthly contribution (as the proof shows) being about $15 and the age of the beneficiary being 36 — I think that, when the table of mortality and the table of present value of a dollar are applied, the fixing of the damages at $2,800 is as nearly fair an approximation of the pecuniary loss as can be arrived at. At any rate, the commissioner was justified in reaching that figure, and there is no warrant for overruling him. Only indulgence in rank speculation would permit any substantial increase.

4. So far as concerns the amounts of particular recoveries by death claimants sought to be reduced, some exceptions might be disregarded because so general and because attention has not been drawn to portions of the record relied on. Nevertheless, I have gone over the proof-bearing on many typical ex-, ceptions of all kinds and tested the calculations.

Undoubtedly the task of the commissioner was difficult. He has performed it with care. •So far as I can see, he has given weight to nothing which was unfair and has not omitted to give weight to anything which was pertinent. Not alone was there some evidence to support him in every instance, but I have found no instance in which he appears to have committed an error.

6. Several principles of law insisted on by exceptants are indisputably sound. Nevertheless, they avail nothing, because there is no demonstrated illustration of failure by the commissioner to employ them. ■

The commissioner will be allowed $6,000 for his services.

Exceptions overruled, and report confirmed.


source: Caselaw Access Project

author: PATTERSON, District Judge.

license: Public Domain

text:
    IRVING TRUST CO. v. ROTH et ux. In re RHEINAUER-ROTH KNITTING MILLS, Inc.
    District Court, S. D. New York.
    Oct. 31, 1930.
    Lhowe & Obstfeld, of New York City (Emanuel A. Obstfeld, of New York City; of counsel), for plaintiff.
    Walter B. Milkman, of Brooklyn, N. Y., for defendants.
   PATTERSON, District Judge.

This is a suit to recover alleged preferential payments. The defendant Andrew Roth was the president of the bankrupt corporation and the owner of its entire capital stock. The defendant Olga Roth is his wife. She had worked for the bankrupt corporation for six months prior to bankruptcy, except for several weeks immediately preceding the filing of the petition, when she was ill- The bankrupt company was virtually a one-man organization, engaged in making and selling knit goods. The petition was filed on July 19, 1929. The payments to Andrew Roth complained of total $650, being five separate payments made in the three weeks preceding bankruptcy. The suit is brought on the theory that these payments were on account of a debt due to him from the bankrupt, presumably for salary. The payments to Olga Roth which are complained of cover three amounts paid over to her within a month of bankruptcy. These payments to Olga Roth totaled $1,005.72, and were on account of advances made by her to the bankrupt in May, 1929.

A preference,'so far as concerns the present case, is defined by the Bankruptcy Act (section 60 [11 USCA § 96]) to be a payment by a bankrupt, the effect of which will enable one creditor to obtain a greater percentage of his debt than other creditors of the same class; the payment being made within four months of the filing of the petition and at a time when the bankrupt was insolvent. A preference, so defined, is voidable provided the creditor receiving it has reasonable cause to believe that a preference will be the result of the payment.

In this ease the issues are, first, the insolvency of the bankrupt at the times when these payments to Andrew Roth and Olga Roth were made; second, whether the effect of the payments to Andrew Roth was to give him a greater percentage of his debt than other creditors of the same class will receive, it being his contention that his claim was for wages as salesman earned within three months before bankruptcy, and therefore, to the extent of $600, a prior claim under section 64 of the Bankruptcy Act (11 USCA- § 104); and, third, whether the defendants had reasonable cause to believe that the payments would effect preferences in their favor.

First, as to insolvency at the times of the payments. The defendants insist that the bankrupt was then solvent. There is nothing to support the argument beyond the testimony of Andrew Roth himself and the figures in the bankrupt’s books. As indicating insolvency at the time of bankruptcy, we have the verified statement of Andrew Roth himself in the voluntary petition, to the effect that the liabilities were $29,000 and the assets only $20,000. There is plenty of other testimony in the record to show a condition even more hopeless at the time of bankruptcy. And the inference is a strong one that the corporation was likewise- insolvent for at least one month prior to that date. No sudden calamity overtook this business in the final month of its existence. The evidence shows that the company had been doing business at a loss for many months. It had difficulty in raising the money necessary for pay rolls. Bad conditions gradually became worse, and the time came when it could no longer continue in business. I find that the bankrupt was insolvent at the times when these payments to Andrew Roth and to Olga Roth were made.

Second, as to whether the debt owed to Andrew Roth was a claim entitled to priority under section 64. If it was, then payments made by the bankrupt on account of such debt, not in excess'of $600, do not constitute a preference to him, for it is not shown by the plaintiff that there are insufficient assets to pay prior claims. But in my opinion the debt owed to Andrew Roth does not fall within the category of wages due to workmen, clerks, salesmen, or servants, and was not a prior claim by virtue of section 64. Roth undoubtedly did perform work in selling goods. But he was much more than a salesman; he was the president, manager, and sole stockholder of the corporation, and did work of all sorts. He was “the whole thing” in the business. Under such circumstances, it would be a plain perversion of the Bankruptry Act and an unwarranted surrender of substance to form to hold that a debt due to such a person for salary, at a rate fixed by him alone, takes precedence over the claims of general creditors. Keyes v. Davie (C. C. A.) 231 F. 688; In re Progressive Luggage Corporation (C. C. A.) 34 F.(2d) 138. I therefore hold that the debt owed to him was no better than a general claim,' and that the payments on account of that debt did have the effect of giving him a greater percentage of his claim than other general' creditors will receive. As .for the payments to Olga Roth, it is undisputed that these were not on account of wages earned, but were in repayment of loans.

Third, as to reasonable cause to believe. I find that this element was present as to each defendant. Andrew Roth was as familiar with the financial condition of the company as if the business had been conducted by him as sole proprietor. Olga Roth claimed to be ignorant and unadvised as to the finances of the company. In view of the fact that she worked for the company for five months shortly before bankruptcy, that she had formerly conducted a business of her own for some years, and in view of the marital relationship, I cannot take this claim at face value. It is highly improbable that her husband did not tell her of the hopeless finances of the company, and likewise it is not natural to suppose that she, a woman of business experience, worked in the business for months without seeing for -herself that it was a losing venture.

Finally, it is pleaded as an offset in behalf of Olga Roth that a larger sum than the amounts received by her as payments on account of her loans was owing to her by the bankrupt as wages for her services covering several months. The claim is that she was to receive $75 a week, as well as commissions, for her services. No salary was ever paid to her, however, and the corporate books show no salary account with her. She had never calculated and could not say what her commissions came to. She filed no claim for wages in the bankruptcy proceedings. In view of these facts, the offset will not be allowed.

The plaintiff is entitled to recover from Andrew Roth the sum of $650 and from Olga Roth the sum of $1,005.72, with.interest from the dates of the respective payments.


author: ADLER, District Judge.

text:
    SHATTUCK et al. v. PENNSYLVANIA R. CO.
    District Court, W. D. New York.
    March 21, 1931.

      Pierre Evans, of Elmira, N. Y., for substituted attorney Levi Ginsburg.
    Mortimer A. Sullivan, of Buffalo, N. Y., for discharged attorney Mortimer L. Sullivan.
   ADLER, District Judge.

An order of substitution of attorneys has heretofore been granted by consent, and the question of compensating Mr. Sullivan, the attorney who brought the action, was submitted to the court upon the basis of facts contained in the stipulation setting forth the legal services performed by him prior to the substitution.

The action was to recover damages arising from the death of an employee of the defendant company, due to negligent operation of its train. Mr. Sullivan, through an employee in his office, interviewed a witness, obtaining a statement from him tending to show the liability of the defendant company, examined the law relating to the right of one of the plaintiffs to begin the action owing to a common-law marriage after divorce, prepared papers and supervised execution of the petition for appointment of administrators, and procured their appointment by the surrogate, noticed the ease for -trial, and subsequently attended .calendar call, and other services were rendered and slight expense incurred pertaining to details and preparation; while Mr. Ginsburg, who at this time was an associate of Mr. Sullivan, attended the inquest to ascertain the cause of death, visited the scene of the accident, and prepared the complaint.

The services performed were under a contingent fee arrangement entered into between plaintiffs and Mr. Sullivan, whereby the latter was to receive in full for his compensation, 25 per cent, of the amount reeo'vered by judgment or adjustment, and no claim is asserted unless there is a recovery. Subsequently Mr. Sullivan was discharged by plaintiffs and Mr. Ginsburg substituted. No questions of turn-over of papers or misconduct are involved.

The substituted attorney contends that, regardless of the contingent fee contract, the measure of compensation is limited to the reasonable value of the services rendered. It is true that, since the contract was made in this state, the rights of the parties are determinable by its laws; and, in the circumstances, the discharged attorney is only entitled to the reasonable value of the services rendered up to the time of his discharge. Martin v. Camp, 219 N. Y. 170, 114 N. E. 46, L. R. A. 1917F, 402. See Spellman v. Bankers’ Trust Co. (C. C. A.) 6 F.(2d) 799. That the clients had the right to discharge the original attorney with or without cause, thus ending "the contract, is admitted, and the latter is therefore precluded from recovery under the stipulated contract, since a breach thereof by the clients does not lie. But in opposition it is urged that, even though the services are determinable on a basis of quantum meruit, that the stipulated contract and the ultimate result should not be ignored in fixing the fees. I am of the opinion that this contention is not without fair and reasonable merit.

In O’Brien v. Mulcahy, 230 App. Div. 790, 244 N. Y. S. 701, 702, the referee before whom the matter of a discharged attorney’s fees for performing legal services under a conditional contract on percentage of recovery was submitted reported to the court that the discharged attorney’s compensation, prior to the trial of the action, was of the value of $500.. Later the action was settled in plaintiff’s favor for $15,000, and the appellate court ruled that the allowed amount, in view of the settlement, was unreasonable and inadequate, and it resubmitted the ease to the Special Term. The court said: “At the time the official referee made his report, and when it was confirmed, it was not known how much the plaintiff would recover, if anything, and on the rehearing the Special Term should take into consideration the amount of the settlement and the finding of the official referee that the appellant was to receive 25 per cent, of any amount plaintiff might receive.” That case was decided after the Camp Case, supra, and, since the latter- is moot upon this point, I think the request-of Mr. Sullivan that fixing his fees should be deferred until the damages are determined is not unreasonable.

The value of an attorney’s services is ordinarily not solely controlled by the mere. details of his services, but his professional skill and diligence and final results in litigation are elements bearing upon the appraisement of his employment. Here, as already remarked, the original attorney was discharged, and the value of what he did must be based upon quantum meruit, but the ultimate result of 'the action, even though the substituted attorney conducts the trial, constitutes an element, I think, for consideration in fixing the fees.

The case of Boston v. Lamport & Holt, 223 App. Div. 385, 228 N. Y. S. 279, supports this view, and this would be the rule even without an agreement as to fees. The client, having exercised his right to discharge the attorney, admittedly cannot be compelled to pay damages for breach of contract or the percentage of recovery to be paid thereunder. He merely exercised an implied right, but the result of the trial and recovery nevertheless not infrequently are due to the preliminary conduct of the ease, and accordingly the request of plaintiffs that the value be fixed ahead of the trial or settlement, assuming that there may be a settlement, is believed unreasonable, and should not be made at this stage of the case.

An order may be entered in accordance with these views, which may contain provisions for the original attorney’s protection. So ordered.


author: SOPER, District Judge.

text:
    BROAD-GRACE ARCADE CORPORATION v. BRIGHT, Mayor, et al.
    No. 224.
    District Court, E. D. Virginia.
    March 28, 1931.
    Christian & Barton, of Richmond, Va., for complainant.
    Collins Denny, Jr., Asst. Atty. Gen., for defendants.
    Before PARKER, Circuit Judge, and SOPER and WAY, District Judges.
   SOPER, District Judge.

Broad-Grace Arcade Corporation, owner and operator of a large and valuable building located on important thoroughfares in the city of Richmond, seeks an injunction against the mayor, the director of public safety, and the chief of police of the city, to restrain them from interfering with the complainant, or its employees, in the operation of a miniature golf course for profit in the building on Sundays. The golf course was opened to the public on two Sundays in J'anuary of 1931, and was patronized by a considerable number of persons. The plaintiff was then ordered by the police to close the place. Having refused to do so, its manager was arrested, charged with violation of the Sunday law of Virginia, brought to trial before the police justice of the city, and convicted. An appeal wa.s taken to the hustings court of the city, where the case was tried anew before a jury, which disagreed. A new trial has been arranged for April 27, 1931. The complainant has been warned that, if it attempts to operate the golf course on Sundays, its employees will be arrested and prosecuted to the fullest extent for each violation of the law.

A statutory court of three judges has been organized under the provisions of 28 USCA § 380,'and a hearing has been had on five days’ notice upon complainant’s prayer for an interlocutory injunction pending the final determination of the case. The jurisdiction of the court with reference to the amount involved, the character of the defendants as state or municipal officers, and the right of the complainant to equitable relief, has been questioned; but these matters need not now be discussed, because we are of the opinion that, on the merits, the complainant is not entitled to the relief which it now seeks.

The contention of complainant is that the Sunday law of Virginia, codified in section 4570 of the Virginia Code of 1930, as construed by the Supreme Court of Appeals of the state, violates the due process clause of the Fourteenth Amendment of the Constitution of the United States; and also that the administration and enforcement of the statute by the defendants is directed so exclusively against the complainant as to amount to a practical denial of the equal protection of the law secured to it by that amendment.

Section 4570 of the Virginia Code, so far as it relates to this controversy, is as follows:

“If a person on a Sunday be found laboring at any trade or calling, or employ his apprentices or servants in labor or other business, except in household or other work of necessity or charity, he shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than five dollars for each offense. Every day any person or servant or apprentice is so employed shall constitute a distinct offense.”

This statute has been construed in three recent eases by the Supreme Court of Appeals of Virginia wherein the validity of the act under the Virginia Constitution was established and the meaning of the law was construed. In Crook v. Commonwealth, 147 Va. 593, 596,136 S. E. 565, 566, 50 A. L. R. 1043, the latest case, the court said:

“This section of the Code was considered by the court in the recent cases of Lakeside Inn Corp. v. Commonwealth, 134 Va. 696, 114 S. E. 769, and Pirkey Bros. v. Commonwealth, 134 Va. 713, 114 S. E. 764, 29 A. L. R. 1290. In the latter ease, the very able and illuminating opinion by Judge Burks expresses fully our views on the question of Sunday observance, religious liberty, a Christian state, the constitutionality and the construction of the statute as applied to the facts in that case. At page 722 of 134 Va., 114 S. E. 766, he says: ‘While the provisions of the statute, therefore, cannot be enforced as a religious observance, the great moral force that is back of it will make itself felt in its enforcement in conformity with the views of that force.’ Referring more specifically to a proper construction of the statute at page 726 of 134 Va., 114 S. E. 768, he speaks thus:
“ ‘ * * * The statute should have a reasonable construction so as to promote the end for which it was enacted, and thus cover every class of labor at every trade, calling or other business not excepted by the statute. The statute should also be construed in the light of the age in which we live, recognizing the fact that there are things which the community regard as necessary that were not necessities when the statute was first enacted; that, to escape the penalty pronounced by the statute, the labor performed must be of the class excepted by the statute, or recognized by the community as a necessity, and that what is or is not a necessity is generally a question of fact for the jury and not one of law for the court. There are cases where the question is one of law for the court. Where the act done is plainly a violation of the statute, as where a contractor, without emergency, is running a steam shovel on Sunday, or the act is plainly one of necessity, as where the owner lifts his ox out of the ditch; in either case, the question is one of law for the court. But if the act be one about which fair minded men might reasonably differ as to whether or not it is a work of necessity, then it is a question of fact for the jury. * * * ’
“At page 725 of 134 Va., 114 S. E. 767, he uses this language: ‘Its aim is to prevent the physical and moral debility which springs from uninterrupted labor, and in this respect it is a beneficent and merciful law. It gives one day to the poor and the dependent, from the enjoyment of which no capital or power is permitted to deprive them. It is theirs for repose, for social intercourse, for moral culture, and, if they choose, for divine worship.’ ”

Applying these principles, the court held that the question of whether the playing of a game of professional ball on Sunday, to which the public was admitted without charge, was a work of necessity or charity within the exception of the statute, was rightfully submitted to the jury. In the two previous cases, the same court had decided that it was likewise a question for the jury to decide whether the operation of a public resort for swimming and bathing, or the operation of a public cave or grotto on Sundays, was a work of necessity or charity. It is difficult to discern any material distinction between the legal aspects of the complainant’s action and those involved in the eases cited.

But the complainant says that the Virginia statute has become so vague and uncertain, through the liberal interpretation placed upon it by the Virginia court, as to offend the Constitution of the United States. The contention is that, by judicial construction, the word “necessity” has been taken out of the exception in the statute, and in its place there has been substituted a standard of moral fitness and propriety which is so lacking in definiteness as to be incompatible with due process of law. This contention of the complainant is suggested by certain passages in the opinions in the cited cases, which, considered apart from the context, lend support to the complainant’s theory. Thus in Lakeside Inn Corp. v. Commonwealth, where the operation of a swimming and bathing pool on Sunday was under consideration, the court said (134 Va. 696, 700, 114 S. E. 769, 771):

“We need only inquire as to the necessity of the act entailing the consequent labor, for without the labor the.act could not be done. As pointed out in the Pirkey Bros. Case, the necessity meant by the statute is not a physical necessity, but a moral fitness or propriety of the work and labor done under the circumstances of the particular ease, and whether or not the act in question is morally fit and proper is usually a question of fact to be determined by a jury after hearing the testimony relevant to that particular act, and receiving proper instructions from the court, upon request, as to the proper interpretation of ‘necessity’ as used in the statute. It is the function of the court to interpret the statute, but when this has been done, it is usually the function of the jury, as the representative of the morality of the community, to determine ‘the moral fitness or propriety of the work’ in question. But the jury cannot discharge its function, unless it is permitted to hear all the pertinent and relevant testimony offered on the subject.”

Moreover, the following instruction to the jury was approved both in that case and in Crook v. Commonwealth:

“The court instructs the jury that a work of necessity, as meant by the statute of Virginia, is not a physical and absolute necessity, but a moral fitness or propriety of the Work or labor or act done under the circumstances of each particular ease.”

If this instruction be read apart from the general discussion of the court, it is open to the interpretation that the criterion of the work performed is not its necessity, but its moral fitness and propriety as determined by the court or jury; and such a statute might perhaps be held too vague to support a criminal charge. See the following eases for illustrations of statutes held invalid because they offered no standard of conduct that it is possible to know; International Harvester Co. v. Kentucky, 234 U. S. 216, 34 S. Ct. 853, 58 L. Ed. 1284; United States v. Cohen Grocery Co., 255 U. S. 81, 41 S. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045; Connally v. General Const. Co., 269 U. S. 385, 46 S. Ct. 126, 70 L. Ed. 322; Cline v. Frink Dairy Co., 274 U. S. 445, 47 S. Ct. 681, 71 L. Ed. 1146. But, when the recent opinions of the Virginia court are examined as a whole, it is clear that the construction given to the statute by the court is not found in its entirety within the terms of the instruction. In substance, the court held that the work of necessity covered by the exception in the statute is not merely one of absolute or physical necessity, not merely something required to sustain physical existence or safety of person or property, but it embraces all work essential to the moral welfare of the people. Considerations of moral welfare are as pertinent as those which affect physical well being, but in neither casé is it sufficient that the act be beneficial. The fundamental element of necessity must also exist.

So construed, the statute tabes on a meaning much more precise, and is not obnoxious, in our opinion, to the rule that a criminal enactment must set up an ascertainable standard of guilt. It is true that cases occur in which opinions may differ as to whether certain conduct falls within the condemnation of the law; but as said by Mr. Justice Holmes in Nash v. United States, 229 U. S. 373, 377, 33 S. Ct. 780, 781, 57 L. Ed. 1232:

“The law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. ‘An act causing death may be murder, manslaughter, or misadventure, according to the degree of danger attending it’ by common experience in the circumstances known to the actor. ‘The very meaning of the fiction of implied malice in such eases at common law was, that a man might have to answer with his life for consequences which he neither intended nor foresaw.’ Commonwealth v. Pierce, 138 Mass. 165, 178, 52 Am. Rep. 264; Commonwealth v. Chance, 174 Mass. 245, 252, 54 N. E. 551, 75 Am. St. Rep. 306. ‘The criterion in such eases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct.’ 1 East, P. C. 262. If a man should kill another by driving an automobile furiously into a crowd, he might be convicted of murder, however little he expected the result. See Reg. v. Desmond, and other illustrations in Stephen’s Dig. Crim. Law, art. 223, 1st Ed. p. 146. If he did no more than drive negligently through a street, he might get off with manslaughter or less. Reg. v. Swindall, 2 Carr. & K. 230, 2 Cox, C. C. 141; Rex v. Burton, 1 Strange, 481. And in the last case he might be held although he himself thought that he was acting as a prudent man should. See The Germanic, 196 U. S. 689, 596, 25 S. Ct. 317, 49 L. Ed. 610, 613.”

See, also, Hygrade Provision Co. v. Sherman, 266 U. S. 497, 502, 45 S. Ct. 141, 143, 69 L. Ed. 402, where Mr. Justice Sutherland said:

“Many illustrations will readily occur to the mind, as for example statutes prohibiting the sale of intoxicating liquors and statutes prohibiting the transmission through the mail of obscene literature, neither of which have been found to be fatally indefinite because in some instances opinions differ in respect of what falls within their terms.”

We are satisfied that the language of the statute, so interpreted, has a meaning sufficiently clear to permit its successful application. Indeed, the interpretation of the Virginia court is not new. It seems to have been first announced in regard to a similar statute in 1849 in Flagg v. Millbury, 4 Cush. 243, by the Supreme Judicial Court of Massachusetts, and to have been followed by a large number of states in various sections of the Union. See the eases cited, 37 Cyc. 552. The language has not heretofore been deemed so vagóle as to jeopardize the safety of the individual citizen, and we believe that it still furnishes á satisfactory guide.

On the second branch of the case, the complainant contends that the action of the defendants in enforcing the Sunday law against it is unjustly discriminatory, when contrasted with the failure of the defendants to enforce it against persons engaged in divers other activities in the same locality. Thus it is alleged in the bill that for a long time it has been the policy of the defendants to permit the operation on Sunday of places of business devoted to the sale of soft drinks, tobacco, confectionery, gasoline, newspapers, and to the operation of swimming pools, rowboats, and auto service stations, as well as various facilities by which the people are furnished with electric light and means of communication or transportation. It is also alleged that there has been no arrest by the de-' fendants of any person in Richmond during the past five years for violation of the Sunday law when the labor performed was incidental to the furnishing of recreational facilities to the public. The answer of the defendants denies that the administration of the law is discriminatory, unequal, or oppressive, or directed exclusively against the complainant. It shows that light and means of communication and transportation are necessarily furnished to the public on Sunday; that, prior to five years ago, prosecutions had been brought and the defendants acquitted for such activities on Sundays as the sale of confectionery, soft drinks, and tobacco; operation of gas and oil stations; operation of swimming pools and rowboats; and that, during the past five years, there have been other prosecutions of persons for violations of the statute not included amongst those enumerated by the complainant in its charge of discrimination. The answer also refers to the recent decisions of the Supreme Court of Appeals of Virginia wherein it was ruled that, in doubtful cases, the necessity of the work or labor was a question for the jury to decide.

Under the facts thus submitted to the court on bill and answer, we do not think the complainant is entitled to an injunction because of discrimination against it. The complainant relies upon the decision of the Supreme Court in Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, where it. was held that an administration of an ordinance for the carrying on of a lawful business violates the Constitution of the United States, if it makes arbitrary and unjust discrimination, founded on difference of race, between persons otherwise in similar circumstances. The court found that there was an unjust discrimination by the authorities against the Chinese by reason of their race, which amounted to a denial of equal justice within the prohibition of the Constitution.

But we do not find from the pleadings in the ease at bar that the complainant has been the victim of arbitrary and unfair discrimination. Even if we confine our attention to the allegation that during the past five years there have been no prosecutions in Richmond of persons engaged in labor in connection with the furnishing of recreational activities on Sunday, there is no foundation for the complainant’s charge of an unconstitutional administration of the law. It does not appear that in Richmond labor of any kind is permitted; provided only that it is connected with the operation of facilities for recreation. There are doubtless forms of recreation which no one attempts to furnish on Sundays. Furthermore, it appears that the defendants have, from time to time instituted criminal charges to test the application of the law to various activities in that locality on Sundays. It is a matter of common knowledge that there is always more or less conflict between those who desire to see the Sunday laws strictly enforced and those who would ignore them altogether for purposes of commercial gain. This conflict creates a difficult problem for the executive authorities to solve, especially when new forms of business are involved. It involves the bringing of prosecutions from time to time, so that the law may be enforced and the courts may be given an opportunity to pass upon charges of violation. We do not find in the pleadings in this case any foundation for the belief that the executive authorities have willfully refused to enforce the Sunday laws in Richmond; or that they have singled out the complainant for prosecution from amongst those who desire to profit by furnishing recreation to the people of Richmond on Sunday. We think, therefore, that the application for an interlocutory injunction should be denied.


text:
    UNITED STATES v. CRUIKSHANK et al.
    District Court, S. D. New York.
    Jan. 23, 1931.

      Robert E. Manley, Acting U. S. Atty., of Hew York City (G. B. Schoonmaker, of Hew York City, and C. M. Charest and Percia E. Miller, both of Washington, D. C., of counsel), for plaintiff.
    Stewart & Shearer, of Hew York City (Harry J. Campaign, of Hew York City, of counsel), for defendants.
   PATTERSON, District Judge.

Suit in equity is brought to collect an additional estate tax alleged to be owing to the United States under the Revenue Act of 1918 (40 Stat. 1057). The defendants are William M. Cruikshank and Henry C. Drayton, individually and as executors of the estate of Charlotte Augusta Haig, and United States Trust Company of Hew York, which is trustee of said estate. Drayton was not served. The facts have been presented by written stipulation.

The decedent died on July 30, 1920. On July 28, 1921, pursuant to the Revenue Act of 1918 then in force, her executors filed an estate tax return, showing a tax of $28,929.39, which sum was paid by them at the same time. Certain features of this return will be discussed later. On December 7, 1921, the executors (by their attorneys) filed a written application for determination of the tax within one year and 'for discharge of personal liability. This application was made under section 407 of the Revenue Act 1921 (42 Stat. 281), which had become effective on Hovember 23, 1921. There had been no similar provision in the 1918 act. The relevant portion of this section is as follows; “If the executor files a complete return and makes written application to the Commissioner for determination of the amount of the tax and discharge from personal liability therefor, the Commissioner, as soon as possible and in any event within one year, after receipt of such application, shall notify the executor of the amount of the tax, and upon payment thereof the executor shall he discharged from personal liability for any additional tax thereafter found to be due, and shall be entitled to receive .a receipt or writing showing such discharge. * * * ”

The Commissioner did not audit the return or notify the executors of the amount of the tax within one year. It was not until over three years had passed that the executors received any notice of a deficiency in the tax. Meanwhile, however, the Commissioner had written to the executors several letters, the first of which is dated May 31, 1922, to the effect that among the deductions claimed in the return were several items that were only estimated, and that before final audit could be made he should be advised of the sums actually paid. The executors replied to some of these letters, furnished certain data, and stated that certain other information would be furnished later. Despite several later requests for this information, it was not given. Finally, the Commissioner went ahead with his audit without the additional data, and on February 19, 1925, gave the executors notice of ,a tentative determination of tax deficiency in the amount of $6,-456.04. The executors filed a protest and an amended protest, which set before the Commissioner for the first time the actual payments in place of the estimated payments. The Commissioner thereupon, on April 14, 1925, notified the executors that their protest had been sustained, and that the deficiency was only $4,541.53. They were also advised that appeal might be filed with the Board of Tax Appeals within sixty days.

The executors paid no attention to this notice. They did not file an appeal, nor did they pay the deficiency. They had already, on November 23, 1923, after paying debts and administration expenses and retaining commissions for their own services, turned over the entire net assets remaining in the estate to the United States Trust Company, the trustee named in the will. This was done pursuant to decree of the Surrogate’s Court of New York eounty.

.The Commissioner never made an assessment of the tax. The only further effort to collect the deficiency prior to institution of suit was a terse'demand, made on July 12, 1926, upon United States Trust Company for payment. Suit was commenced on July 21, 1926, a few days short of five years from the filing of the return.

The bill of complaint, after setting forth the facts as to the incidence of the tax and as to possession by the trustee of assets of the estate, alleges that the unpaid amount is a lien upon such assets. The relief demanded is that it be adjudged that there is due •and owing to the United States the sum of $4,541.53, with interest; that it be further adjudged that the estate assets in the hands of the trustee are subject to a lien in favor of the United States; and that, unless the tax be paid, the estate assets be applied to the satisfaction of the tax. By an amendment to the bill, it is alleged that the executors paid debts owed by the decedent, without satisfying the'debt owed to the United States in violation of section 3467 of the Revised Statutes (31 USCA § 192), and that they are therefore personally liable for the tax.

It is conceded by the defendants that the values placed by the Commissioner on items constituting the gross estate were correct, and it is not disputed that his final adjustments were in each instance proper, and that there is an unpaid balance of estate tax in the amount of $4,541.53. The defendants contend, however, that for several reasons they are not liable for this unpaid balance, and that this suit is not maintainable against them.

As a general proposition, it cannot be disputed that an executor who distributes an estate without payment of the estate tax becomes personally Rabie for the tax. Indications of such a liability are to be found in the 1918 act and in all later acts, but it is sufficient to cite section 3467 of the Revised Statutes. It is likewise clear that the tax is a Ren for ten years upon the gross estate (Revenue Act 1918, § 409 [40 Stat. 1100], and similar provisions in later acts), and that the United States may enforce its Ren by sale in legal proceedings. Page v. Skinner (C. C. A.) 298 F. 731. It is also clear that the statute of limitations on collection of the tax by proceedings in court had not run when this suit was commenced. The period was five years (Revenue Act 1921, § 1320 [42 Stat. 315]; Revenue Act 1924, § 1009 [26 USCA § 105 et seq.]; Revenue Act 1926, § 1109 [26 USCA § 105 et seq.]), and it did not expire until July 28, 1926. The plaintiff is therefore entitled to the relief prayed for, both against the executor who was served and against the estate assets in the hands of the trustee, unless the special matters pleaded by the defendants have merit.

1. It is said that the collector should have made out a return for the estate, and that, since this was not done, the suit cannot be maintained. This argument is derived from section 405 of the Revenue Act 1918 (40 Stat. 1099), to the effect that, where no re-" turn is filed by the executor or where the return filed by him contains a false or incorrect statement, the collector shall malee a return and the Commissioner shall make an assessment on such return. There is no substance in the argument. The administrative procedure outlined in section 405 is not exclusive. It is only one of several methods available for collection of the tax. The failure of the collector to make a return under this section was relied upon by defendants in United States v. Ayer, 12 F.(2d) 194, but was held immaterial by the Circuit Court of Appeals for the First Circuit (see page 197). Moreover, at the time when this suit was started, the 1926 act was in force and was controlling as to the manner of collecting taxes under the 1918 act, though not of course as to the computation of the tax. Revenue Act 1926, § 318 (26 USCA § 1118). The 1926 act contained no direction as to the collector making returns in eases where the return filed by the executor was false or incorrect. For these reasons the fact that the collector did not file a return is of no moment.

2. It is said that the suit fails because there was no assessment of the tax by the Commissioner. Assessment may be a necessary preliminary step to distraint as a means of collecting taxes from persons rmwilling to pay, but there can be no question that' assessment is not essential where suit is resorted to as the method of forcing payment. United States v. Ayer, supra, and authorities collected there. The defendants point out that the Ayer Case arose before the passage of the 1924 act and the 1926 act. So it did, but that fact does not help the defendants. Whereas the earlier aets did not contain any express provision to the effect that proceedings in court could be brought without assessment, both the 1924 act and the 1926 act declare in so many words that suit to collect an estate tax may be brought without a prior assessment. See Revenue Act 1924, §§ 308(b), 311 (26 USCA § 1102 note, and § 1111 note); Revenue Act 1926, § 310 (26 USCA § 1110).

3. I come now to an argument of greater force. It is urged that the executors are discharged from personal liability because of the application made by them under section 407 of the 1921 act for prompt determination of the tax, followed by the failure of the Commissioner to notify them of any additional tax within one year thereafter. As matter of strict construction, the discharge" clause of section 407 does not fit this ease; in terms it covers only instances where, after receipt of the application, the Commissioner gives notice of the amount of the tax within the year, where such amount is paid, and where thereafter a further amount is found to be due. The provision is that the executor shall be free from personal liability as to such further amount. But I take it that the words, “the Commissioner, as soon as possible and in any event within one year after receipt of such application, shall notify the executor of the amount of the tax,” are mandatory, and that ordinarily the executor is discharged from personal liability where the Commissioner fails to give notice within the year of any deficiency in the tax already paid. Common sense would seem to justify this broader operation of the clause, and I will adopt it.

Nevertheless, there are" several features in the present ease which convince me that the executors were not discharged from personal liability. In the first place, it seems to me that the application made by the executors had no effect upon a tax liability which had accrued under the 1918 act. That act contained no provision whereby executors might apply for a prompt audit and thereby cut short the period of their personal liability. The 1921 act, while it repealed the 1918 act generally, provided that the 1918 act should remain in full force for the assessment and collection of taxes accrued under it. Revenue Act 1921, § 1400 (42 Stat. 320). It was not until the 1924 act that this policy was changed and the practice adopted of having the administrative provisions of later statutes govern eases still open under earlier aets. There was nothing retroactive in the 1921 act, nothing which affected in any way taxes under the 1918 act. The taxation of estates of persons who had died prior to November 23, 1921, was left to be governed in all respects by the 1918 aet. It therefore seems to me that the application made by the executors under the 1921 aet was futile.

In the second place, the executors did not file “a complete return,” which is the primary requisite under section 407 of the 1921 act. The return was incomplete both as to the gross estate reported and as to the deductions claimed. Among the assets reported was an undivided interest in certain mortgages held in escrow pending determination of taxes in another estate. The return stated that the value of the decedent’s interest in the mortgages could not be determined until the taxability of the other estate should be settled, and no figure was inserted in the return as the value of the decedent’s interest. (In 1925 the Commissioner fixed the value of the decedent’s interest in these mortgages at $66,666.67, which value is conceded to be correct. The addition of this figure to the value of the gross estate accounts for the greater part of the tax deficiency sued for.) The good faith of the executors in listing the property is beyond question, but to my mind a return wherein no value was placed or could be placed upon the decedent’s interest in this valuable property, and where no tax was paid on account of it, is not a “complete return.” Section 404 of the Revenue Act 1918 (40 Stat. 1099) required that the return set forth “the value of the gross estate,” and here the executors themselves stated in their return that the value of the gross estate could not be set forth. Nor was the return a complete one as to deductions. Several of the deductions were estimated, which was doubtless the best the executors could do at the time. The fact remains, however, that one of the matters which apparently caused the long delay in the audit was the effort of the Commissioner to obtain more specific information as to these estimated deductions. The executora themselves, in their letter to the Commissioner of July 16, 1923, in effect admitted that further information as to the deductions was necessary as an amendment to the original return. The return being “incomplete” in these respects, section 407 of the 1921 aet has no bearing upon the case.

In the third place, the demand for prompt audit was waived by the executors. The Commissioner sought their co-operation in completing an early audit, but did not obtain it. While the Commisioner might have ignored all estimated deductions, and thus have completed his audit within one year, he seems to have delayed his audit in order to do full justice to the estate. As late as July, 1923, the executors promised to furnish complete supplemental data in a few weeks. There is no question that the delay was beneficial to the estate, for in 1925 the executors asked for and were given the benefit of deductions which had not been made at the expiration'of one year after December 7, 1921.

For the reasons outlined above, I have reached the conclusion that the executors did not, by their application for prompt audit and for discharge, clear themselves of personal liability for payment of the tax, and that their defense along this line is unavailing.

4. Finally the defendants urge that this suit cannot be maintained because of certain restrictions imposed by the 1926 aet upon the right of the United States to commence suits to collect deficiencies in estate taxes. The general proposition is beyond dispute that the United States may maintain a suit to collect unpaid revenue, unless another remedy has been expressly made exclusive. Dollar Savings Banks v. United States, 19 Wall. 227, 22 L. Ed. 80; United States v. Nashville, C. & St. L. Ry. (C. C. A.) 249 F. 678; United States v. Ayer, supra. It is also beyond dispute that, prior to the passage of the 1926 aet, the United States had the right to institute suits at law or in equity to collect unpaid estate taxes at any time after they fell due, subject of course to any applicable statute of limitation. One may search the 1916 aet (39 Stat. 756), the 1918 act, the 1921 aet, and the 1924 act, from beginning to end, without turning up any condition or restraint upon such right. In the 1926 act, however, there are certain restrictions upon the power to commence suits for the collection of estate taxes. The important section in this connection is section 308 (a) of 1926 aet (26 USCA § 1101), which provides that the Commissioner on determining a deficiency may send notice thereof to the executor, and that the executor shall have the right, ■within sixty days, to file a petition with the Board of Tax Appeals for redetermination of the deficiency, and then goes on to say: “No assessment of a deficiency in respect of the tax imposed by this chapter and no distraint or proceeding in court for its ‘collection shall be made, begun, or prosecuted until such notice has been mailed to the executor, nor until the expiration of such 60-day period, nor, if a petition has been filed with the board, until the decision of the board has beeome final.”

It will be observed that section 308(a) is confined to deficiencies in estate taxes under the 1926 aet. Section 318(a) of 1926 act (26-USCA § 1118(a), however, assimilates the procedure in collecting estate taxes under earlier acts to the procedure in the case of deficiencies under the 1926 act. And section 316 (26 USCA § 1119) provides that the liability of transferees (including heirs, legatees, distributees, and devisees) for estate tax under any act shall be assessed, collected, and paid in the same manner as indicated in the case of a deficiency under the 1926 act.

The purpose of these provisions is plain. Congress had already in 1924 created the Board of Tax Appeals and had given taxpayers the right to appeal to the Board from deficiencies determined by the Commissioner. But there was nothing in the 1924 act which prevented the United States from bringing suit at any time to collect the tax. In broadening the jurisdiction of the Board in 1926, Congress saw fit to provide that, until the executor had waived his right to lay the matter before the Board, the collection of the tax should be held in abeyance and there should be no assessment, distraint, or suit to collect the deficiency. See 26 USCA § 1211 et seq.

So far as the executors in this ease are concerned, these sections of the 1926 act furnish no defense. As to them the Commissioner complied with the conditions precedent to the commencement of suit. He gave them written notice of deficiency, and he waited more than sixty days before instituting this suit. They filed no petition with the Board. They were therefore subject to suit in the United States District Court at the time this suit was commenced.

As to the trustee, however, the Commissioner did not wait the required period. He commenced suit within ten days after the first notice of deficiency served upon the trustee. If this were a suit to establish liability against the trustee as a transferee of estate assets, I would be inclined to hold that section 316(a), 26 USCA § 1119(a), read in connection with section 308(a), was a bar to maintenance of a suit. See Phillips v. Commissioner (C. C. A.) 42 F.(2d) 177, 179. It should be noted, however, that the contrary seems to 'have been held in two eases in other circuits which arose under the companion sections dealing with liability of transferees for income taxes, sections 274(a) and 280 of act of 1926 (26 USCA §§ 1048, 1069). United States v. Greenfield Tap & Die Corp. (D. C.) 27 F.(2d) 933; United States v. Updike (D. C.) 25 F.(2d) 746, affirmed in (C. C. A.) 32 F.(2d) 1. But this question need not be decided, for this suit is not one to fasten liability upon the trustee, and section 316 is not involved. The prayer for relief does not ask that the trustee be held liable for the tax. If we lay to one side the asserted personal liability of the executors, the suit is solely to collect the tax through enforcement of the tax lien upon assets formerly belonging to the decedent. The trustee is a party defendant merely because these assets are now held by it. It is doubtless true that the restriction upon proceedings in court, which appears in section 308(a), applies to a suit to collect a tax through enforcement of lien, as well as to other suits to collect taxes; in fact, section 314 (26 USCA § 1114), which authorizes proceedings in court of this character, expressly declares that collection of a deficiency by this method shall be subject to the provisions of section 308(a). But, as already pointed out, the requirements - of section 308 (a) were'fully complied with by the Commissioner. As I view the case, therefore, the claim that the 1926 act forbade the bringing of this suit on July 22, 1926, is untenable.

The original bill sought no relief against the executors, although naming them as defendants. It was not until June, 1930, that the amendment was filed, wherein personal liability on their part was asserted. It is not necessary to decide whether the statute of limitations is a good defense under such circumstances, because no such defense has been pleaded.

There will be a decree for the relief prayed for by the United States. The decree will provide that the tax, with interest and costs, be paid out of the estate assets in possession of the trustee, in discharge of the tax lien, and in default of such payment, by the defendant Cruikshank. The plaintiff will submit a decision embodying findings of fact and conclusions' of law, in compliance with the new rule of the Supreme Court, on five days’ notice, and will thereafter submit a decree.

       This amendment was irregular, it was made long after answers had been filed by the defendants, and the plaintiff obtained neither consent of the defendants nor leave of the court as required by Equity Rule 28 (28 USCA § 728). All that happened was that a copy of the amendment was served upon the defendants’ attorneys, precisely as if the plaintiff had the right to amend the bill as of course. No answers to the amendment were filed. But the parties seem to have treated the amendment as a pleading in the case, and the only allegation of fact contained in it, i. e., the payment of debts by the executors, is covered in the written stipulation of facts submitted to the court by both sides, without any objection noted by the defendants as to relevancy. I will therefore treat the amendment as being part of the pleadings in the case.