text:
    THE DUNMORE. THE MONTAUK. P. DOUGHERTY CO. v. UNITED STATES.
    Nos. A-16939, A-17137.
    District Court, E. D. New York.
    June 6, 1945.
    On Reargument June 26, 1945.
    T. Vincent Quinn, U. S. Atty., of Brooklyn, N. Y. (Leo J. Curren, Sp. Asst. to U. S. Atty., of New York City, of counsel), for the United States.
    Foley & Martin, of New York City (Christopher Heckman, of New York City, of counsel), for P. Dougherty Co.
   BYERS, District Judge.

In the first cause the libelant, as owner of the seagoing barge Orleans, seeks to hold the tug Dunmore, claimed by The P. Dougherty Company, for damage to the Orleans caused by her collision with the seagoing barge Montauk in Fishers Island Sound about 2 miles or more south of Avery Point on the Connecticut shore, on the evening of November 8, 1942; in the second cause the said Dougherty Company, as owner of the Montauk, seeks to recover from the United States as owner of the Orleans, for damage said to have been suffered by the Montauk as the result of the same collision.

The causes were tried together on consent, since they involved but one happening.

The tug Dunmore took three seagoing barges in tow in the vicinity of the place of collision, where they had been left at anchor as to the head barge earlier in the day by the tug, while she removed still another barge for delivery at New London.

Pending the return of the Dunmore, the Cohasset (dimensions not given) rode at anchor with the Montauk astern on about 90 fathoms (the witnesses do not agree as to this, so an average has been accepted) of hawser, and she in turn had a like length of hawser out to the Orleans; all were laden with coal, and were seaworthy and in good condition.

When the Dunmore returned from New London, she placed a hawser on board the Cohasset, of 200 fathoms, and then signaled to the Cohasset to heave her anchor, and in due time got under way, straight ahead until the towing hawser took a strain, and then turning to her own starboard, intending to take the tow out through Race Rock to the east; the only question to be decided is whether at the beginning of that maneuver the Montauk was caused to turn so sharply to starboard that she rubbed across the bow of the Orleans, breaking it and causing damage on that vessel; or whether what happened was that, as the hawsers were tightened betweén the barges in response to the initial impetus given by the movement ahead of the tug, the Orleans came ahead so fast that she struck the starboard quarter of the Montauk because she was not properly handled so as to avoid the collision.

The shape of the tow at the initial movement of the tug Dunmore must be established so far as the evidence permits, if any understanding is to be reached as to what probably took place.

The tow got under way at about 8:00 P.M., E.W.T., after dark had fallen; a light northerly wind was blowing, but there is no assertion that weather or atmospheric conditions affected the movement of these vessels. If any witness possessed knowledge of the force and direction of the tide just prior to and at the time of the collision, he concealed it with entire success from the Court. No tide fables were produced, nor other data of that nature upon which a reasonably safe conjecture could be based as to the probable shape of the tow at the time that the tug started ahead, intending to proceed to the east around Race Rock, which lies southwest of Fishers Island.

The testimony as to the relative positions of the second barge, Montauk, and the third barge, Orleans, both as to distance and direction, is in conflict, and at best all that can be evolved is a plausible theory to account for an episode which ought not to have occurred if competent seamanship had been brought to bear.

It is apparent that if these two barges had continued to lie as they were — whatever their relative positions — there would have been no collision between them, and consequently the fact that one did occur must be attributed to the movement initiated by the tug when she started to tow the vessels in her charge on a course to pass Race Rock.

Upon the conflicting and argumentative testimony and the inferences drawn therefrom, the following Findings are made:

(1) Ownership and operation of the Dunmore and the Montauk on November 8, 1942, are found to have been in The P. Dougherty Company, a Maryland corporation, and ownership of the seagoing barge Orleans is found to have been in the United States of America.

(2) The Dunmore is a steamtug, 142 feet by 27.6 feet, having an inside depth of 14 feet, and indicated horse power of 850.

(3) The Montauk is a wooden seagoing barge, 278.7 feet by 40 feet by 16-foot depth of hull.

(4) The Orleans is a wooden seagoing barge, 248 feet by 38 feet by 22-foot depth of hull.

(5) On November 8, 1942, between 7:30 and 8:00 P. M., E.W.T., the seagoing barge Cohasset lay at anchor in Fishers Island Sound, about 2 miles or so south of Avery Point on the Connecticut shore, with a hawser out to the said seagoing barge Montauk, of about 90 fathoms; the latter in turn had a hawser of like length to the said seagoing barge Orleans.

(6) At that time and place there was a light northerly wind prevailing; visibility was good; all vessels carried lights as required, which were burning, and all vessels were seaworthy and in good condition.

(7) These barges were fully laden with coal, and the Orleans carried 2300 tons.

(8) The barge Orleans has ship’s lines as to her hull and shape of bow and stern, while the Montauk has a square stern resembling the stern of a scow and her full beam is carried • further forward toward the bow than in the case of the Orleans; the Orleans carries headway, once having been put in motion, longer than the Mon-tauk, by reason of this difference in the shape of the hulls.

(9) At about 8:00 P.M., the tug Dun-more put a hawser on board the Cohasset preparatory to taking the tow away from the anchorage, and paid out 200 fathoms, and signaled the Cohasset to heave her anchor, and shortly started ahead; after about five minutes, which was an insufficient interval to permit the tow to line up straight astern of the tug, the latter turned to her starboard hand to the eastward. It is impossible to state in points or degrees, the extent of that turn, since the evidence is not clear or convincing on the subject.

(10) The action of the tug in turning the tow to the starboard caused the barges to turn successively in the same direction, and as the Montauk did so before the Orleans, she was somewhat headed across the bows of the latter.

(11) That turn to starboard was undertaken at a time when the hawser between the Montauk and the Orleans had not tightened, so that the Orleans was not then the full towing length thereof removed from the Montauk.

(12) When the Montauk was caused to move as above stated, the Orleans was not astern, -but was somewhat abaft the Mon-tauk’s starboard quarter; as the effect of the strain imposed upon the said hawser, the Montauk moved somewhat.to her own starboard in the path of the Orleans, and the latter started to move ahead, with the result that the Orleans struck the starboard quarter of the Montauk, causing damage to both vessels.

(13) The tug Dunmore was at fault for initiating the turn to starboard before the barges were straight in line astern of the tug, and for failing to correctly observe the actual shape of the tow prior to initiating the maneuver.

(14) The Orleans was at fault for failure to show that the effort was made to avoid collision by endeavoring to steer away from contact with the Montauk.

Conclusion

I. In the first cause, the damages should be borne, one-third by the libelant as owner of the Orleans, and two-thirds by the claimant of the tug Dunmore.

II. In the second cause, the damages should be borne, two-thirds by the libelant as owner of the Montauk, and one-third by the respondent as owner of the Orleans, since the tug was under the same ownership as the Montauk and controlled the movements of that barge.

Comments

In explanation of the Findings, it should be said that the only substantial dispute in the testimony as to what took place has to do with the shape of the tow at the time when the tug began the maneuver in question. Johnson, the master of the Orleans, impressed me as an understanding person, and since he has held a master’s license since 1938 and has had ample prior experience in seagoing vessels, his narrative was convincing except in two respects; it is thought that he is mistaken in saying that his barge was alongside the Montauk and the latter almost alongside the Cohasset just before the tug arrived from New London at about 8:00 P. M.; the vessels were not strung out in line, but since they were all carrying lights, it is difficult to believe that the tug would have started immediately to its starboard hand, if those lights had indicated that the tow at that time was in the shape described by Johnson; probably the barges had been fairly close together earlier in the evening, but they must have separated somewhat more than he remembers, at the time that the tug put the tow in motion. It is at this juncture that the absence of clear and explicit and uncontradicted testimony, as to the direction and force of the tide, hampers the Court in seeking to ascertain just what indeed occurred.

Johnson testified that he was on the bow just before and at the time of the collision, and the cook was at the wheel, but he does not say that he gave the latter any instructions as to helm movement calculated to keep the Orleans from striking the Mon-tauk. He justified this by stating that at the time of collision his own vessel was standing still in the water, and in this it is believed that he was mistaken, although probably honestly so; it is thought that his vessel had received some impetus from force applied to the hawser connecting her with the Montauk, which caused the Orleans somewhat to move ahead.

The real difficulty with this aspect of the case is to judge whether the Orleans was moving sufficiently to have steerage way, so that -it may be reasoned that an order to the cook, who was at the wheel, for a right rudder would have been effective if executed. However, since I am persuaded that the Orleans was moving, I cannot say that she would not have answered her helm, although the importance of that consideration appears in the deposition of Wilkinson. In the absence of testimony that Johnson gave the order, and that in spite of its execution the collision occurred, it seems to me that fault must be attributed in some measure to the Orleans.

The theory advanced by Copeland, the bargee on the Montauk, that the collision could have been averted if the Orleans had dropped an anchor, was not convincing, nor was his attitude on the witness-stand. Being in the employ of Dougherty, he seemed to feel it necessary to demonstrate that Johnson was at fault for not dropping an anchor, and his testimony largely consisted in an argumentative presentation of that contention, rather than in a portrayal of the facts as he observed them. Fie stated that there was no> one at the wheel of the Orleans, and that the latter was a little on his port stern, and that he swung to the starboard side of the Montauk and “shot ahead” and came into the starboard side of the Montauk.

If that narrative were true, the initial jerk on the hawser leading to the Orleans would have caused her to speed ahead faster than the tow moved in response to the power exerted by the towing vessel, which could not have taken place unless the Montauk was indeed being hauled directly across the bow of the Orleans at the very outset of the maneuver. I am loath to believe that the tug turned so sharply and at once.

Counsel referred to the unfortunate infirmity of this witness, who is hard of hearing, and that may have accounted for his somewhat belligerent attitude on the witness-stand. In any case his narrative was not convincing.

The testimony of Sutton, the master of the Dunmore, which was given over two years after the happening, created the impression that the witness did not in fact recall what happened prior to the collision; he did not see it, and did not learn of it until the following day on reaching the Cape Cod Canal. He stated that, before putting out the hawser to the Cohasset, he went close to the Orleans and the Montauk and told their masters not to lengthen hawsers until he got his own hawser on the Cohasset. Johnson denied that any such happening took place, and neither Copeland nor his wife, who was also a witness, referred to that happening, nor did Wilkinson, the captain of the Cohasset, make mention of it; I infer that in giving that testimony Sutton really indicated his practice rather than what happened on this particular occasion.

Taken as a whole, the testimony is neither complete in detail nor reasonably persuasive that seamanship of a high order was practiced in any responsible quarter, and the findings which have been stated were arrived at in the effort to state a conclusion as to what probably took place.

Settle interlocutory decree in accordance with the foregoing.

On Reargument.

Reargument is sought for the owner of the Dunmore and the Montauk, for the reason that the damages have been incorrectly apportioned on a two-thirds and one-third basis, and it appears clearly that error was committed in that respect.

Since the Montauk was not held at fault, there were not two offending agencies for which the owner of both the Dunmore and the Montauk should be held, as in The Kookaburra, 2 Cir., 69 F.2d 71, and the Court was not at liberty to seek to impose a greater penalty upon the Dunsmore than upon tht Orleans, even though the former “was far more gravely at fault” in my opinion. Postal S. S. Corporation v. Southern Pac. Co., 112 F.2d 297, at page 298.

The opinion in The Margaret, 3 Cir., 30 F.2d 923, exposes the erroneous character of the decree as directed to be made, and accordingly, on reargument, it is ordered that the decree shall be entered in each cause for one-half damages.

Settle interlocutory decree.


source: Caselaw Access Project

author: CLARK, District Judge.

license: Public Domain

text:
    STOCKTON v. FORD MOTOR CO.
    No. 2307.
    District Court, D. Idaho, S. D.
    June 18, 1945.

      J. M. Lampert and J. B. Musser, both of Boise, Idaho, for plaintiff.
    William W. Ray, of Salt Lake City, Utah, and Jess Hawley, of Boise, Idaho, for defendant.
   CLARK, District Judge.

The question presented in this case is whether plaintiff is entitled to relief under the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.A.Appendix, § 501 et seq.

The plaintiff, on the 21st day of December, 1938, and for some time prior thereto and until the 26th day of August, 1942, was engaged in the business of selling Ford automobiles and accessories, and operating a general garage business at Emmett, Gem County, Idaho, under the style and name of Stockton Motor Sales.

On the 26th day of August, 1942, he joined the military service of the United States of America, and served until the 14th day of October, 1944, when he was honorably discharged.

On December 21, 1938, the defendant entered into an agreement with Stockton-Adams, Incorporated. This contract was later assigned to the plaintiff herein with the consent of the defendant and was in full force and effect between the plaintiff and .defendant on the date of plaintiff’s enlistment, — the 26th day of August, 1942.

This contract is very lengthy and, without setting it out in full, it is sufficient to say here that it gave the plaintiff the right to handle and deal in Ford passenger automobiles, commercial automobiles, parts and accessories, that is, the products of the Ford Motor Company. The contract contains the following provision:

“This agreement may be terminated at any time at the will of either party by written notice to the other party given either by registered mail or by personal delivery * * *
“That in case of termination by Company, notice of intention to so terminate shall be given to Dealer sixty (60) days prior to actual termination date, * * * ”

Sometime prior to August 26, 1942, the operation of a business such as the business of the plaintiff was greatly curtailed through the Government’s freezing order on the sale of automobiles and tires, and the rationing of gasoline. Although the importance of this is doubtful in the present case, considerable stress was laid on the fact that the plaintiff reduced his inventory of cars and parts in the handling of his business, which the defendant claims was not justified. Whatever reduction was made, however, was made after consultation between the plaintiff and defendant herein. At least the defendant advised the plaintiff to make such reduction as he felt that he should make in order to keep his finances in shape to tide him through the period of time when his business would be curtailed by reason of the war. The plaintiff reduced his investment to about $13,000.

Thereafter plaintiff felt that he should enter the armed service and so advised the defendant. The defendant congratulated him on his decision and assured the plaintiff that it would co-operate with him while he was in the armed service.

The plaintiff arranged for the handling of his affairs by having one man as financial manager and another man as manager of the business, and left for the service. Later both of these men were called to the service.

While he was in the service, without his being advised in any way by the defendant, negotiations were entered into between a competitor of the plaintiff doing business at Emmett, Idaho, and the defendant Ford Motor Company for the issuance of an agency contract to this competitor, which negotiations resulted in the competitor getting the business of the plaintiff during plaintiff’s absence. After these negotiations were completed, orally, which was sometime in the fall of 1942, the defendant, on January 13, 1943, advised the plaintiff by mail that rather than serve formal notice on him to terminate the agency in accordance with the provisions of the contract, they wished his resignation, and if they did not receive it within a reasonable time they would proceed with formal termination. The plaintiff did not resign as requested and the defendant on January 21, 1943, served notice of intention to terminate the contract and on April 5, 1943, served notice of termination.

A great deal of evidence has been introduced in an attempt to justify the defendant in cancelling the contract, and the matter as submitted to the Court is:

First: Was the defendant justified in cancelling the contract in view of the understanding had with the plaintiff before he entered the service?

Second: Did the defendant have the legal right to terminate the contract under its provisions by giving the notice stipulated in the contract while the plaintiff was serving in the armed forces of the United States?

The second proposition would appear to be the controlling one. However, the Court is of the opinion that the first is equally important.

We have witnessed the young men of our nation, daily for over four years, entering the armed forces of our country. Radios, newspapers and orators have been praising these young men who were willing to leave for the battle fields and risk their lives for the preservation of this country. We have said to them how much we appreciated the sacrifice they were willing to make for us who stayed at home, just as the defendant in this case congratulated this plaintiff, and told him that while he was away on the battle field it would co-operate with him, and then, without advising the plaintiff, entered into negotiations to give his contract to a competitor.

The Court was very much impressed by the evidence offered as to the effort on the part of plaintiff’s competitor to obtain this contract during plaintiff’s absence in the armed service. No one should try to enrich himself at the expense of one who is away offering his life for his country; such action cannot be justified, nor can the defendant justify itself, — after cheering the plaintiff on his way and assuring him of its co-operation,- — in entering into negotiations with his competitor to take from the plaintiff his contract and thereby destroy his business investment while he was in the service.

The plaintiff comes to this Court for relief; he is a soldier returned from service in this war with an honorable record. Before he left for the service he had a profitable business; he had a valuable agency contract with the defendant. When he made up his mind that it was his duty to place himself at the disposal of his country he knew that it would be necessary to leave his business; he knew that there was a clause in his agency contract with the defendant whereby it could cancel and terminate this contract on sixty days’ notice; he intended to find out what the result of entering the service would mean as far as this contract was concerned and he advised the defendant of his intention. The defendant congratulated him and said that it would co-operate with him. There is only one fair construction which can be placed on this conversation, and that is, that no advantage would be taken of the plaintiff during his absence. Defendant gave him to understand by using the word “co-operate” that they would waive the right to terminate this contract. There was a consideration for this promise, — his service in the Army. The Court recognizes this is a strained construction but we are dealing here with a returned soldier who entered the service with a pledge of co-operation by the defendant. Defendant violated that pledge and terminated a contract which plaintiff had every right to believe would not be terminated during his absence.

When the defendant told the plaintiff that it would “co-operate” that included the promise to aid him; to help him; to work together in their understanding and agreement; that they would unite with him in helping for their mutual benefit. All standard dictionaries give this as the meaning of the word. True, there was no direct promise but there was an implied contract that he would not be injured by any act of the defendant. Equity and justice requires that the defendant should live up to its agreement. Answering the first question, the defendant had led the plaintiff to believe that his contract would remain in force during his absence in the service, and it was not justified in the cancellation of the contract.

Answering the second question, the defendant did not, under the facts as shown by the evidence, have the legal right to terminate the contract.

The Soldiers’ and Sailors’ Civil Relief Act of 1940 and its 1942 amendment was passed by Congress as a promise to the men and women in the military service that they would be free from harassment and injury in connection with their civil affairs while they were in the service. It was very important that those entering the service be freed from mental worry over their civil affairs at home. The Act reads in part: “In order to provide for, strengthen, and expedite the national defense under the emergent conditions which are threatening the peace and security of the United States and to enable the United States the more successfully to fulfill the requirements of the national defenses, provision is hereby made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the Nation, and to this and the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights.” 50 U.S.C.A.Appendix, § 510.

If any relief is provided in the Act it is provided by Section 522, U.S.C.A.Appendix, Title 50, which reads as follows: “And in any case where a person fails to perform any obligation and a fine or penalty for such nonperformance is incurred a court may, on such terms as may be just, relieve against the enforcement of such fine or penalty if it shall appear that the person who would suffer by such fine or penalty was in the military service when the penalty was incurred and that by reason of such service the ability of such person to pay or perform was thereby materially impaired.”

It must be admitted, as contended by the defendant, that the plaintiff had no right which he could have maintained or protected to continue the sales agreement in force if he had never entered the military service and it also must be admitted that, if the agreement is restored, there will be nothing to prevent the defendant, after the time provided by law and the provisions of the contract, to proceed with its cancellation. It also must be admitted that there could have been no fine or penalty if the soldier had not entered the service, and if he had performed every act suggested by the agreement it nevertheless could have been cancelled by defendant, Ford Motor Company, at will. But we are not dealing with the plaintiff in civil life, we are dealing with him as a soldier in the service; the contract was in existence at the time this plaintiff entered the military service in August, 1942, and the evidence in this case is very clear that the contract was cancelled for one reason and that was because the plaintiff was in the service.

The statute itself is somewhat indefinite and there is a serious doubt in the Court’s mind that this contract is covered by it. It is hard to conceive, however, of Congress saying in one breath that they were acting to “free persons in the military service from harassment and injury in connection with their civil affairs during their terms of service and thus enable them the more successfully to devote their entire energies to the military needs of the Nation * * * ” and then read section 522 of the Act and say that the cancellation of this contract by the defendant was not a forfeiture covered by it. “Forfeiture is a penalty by which one loses his rights and interests in his property”. Black’s Law Dictionary, 3d Ed., p. 1345.

Certainly Stockton has been penalized and penalized severely in the cancellation of this contract by the defendant, and this has been imposed upon him during the time of his service in the armed forces of the United States of America, and in disregard of the purposes and intentions of the provisions of the Soldiers’ and Sailors’ Civil Relief Act, and in disregard of the promise made to co-operate with him which amounted to a binding agreement on the part of the defendant.

Promises made to our service men are not to be construed as idle promises but should be construed as a solemn obligation that the agreements we have made with them will be lived up to and enforced. To look for technical loop-holes which may relieve us of our responsibilities is unthinkable where the returned serviceman’s interest is at. stake, and if there is a doubt as to whether a particular master is within the scope of the Civil Relief Act, that doubt should be resolved in favor of the soldier, and in this case the cancellation of the contract is construed by this Court as a violation of the agreement and understanding had with the defendant at the time of plaintiff’s entry into the service and also as an act prohibited under the Soldiers’ and Sailors’ Civil Relief Act. If the Court is wrong in its judgment, this law should be amended so that the men and women in the service will not be fooled into believing that his or her civil rights are secure while they are away fighting for their country.

The relief this Court can give will be short lived if the defendant is determined to cancel this contract, but the defendant could not legally terminate it or cancel it while the plaintiff was in the military service, and the plaintiff should be restored to all of his rights and privileges under the contract as existing at the time of plaintiff’s entry into the military service.

The complaint will be deemed amended to conform to the proof,

Counsel for the plaintiff will prepare the necessary findings of fact, conclusions of law and decree, serve a copy on opposing counsel and submit to the Court for approval.


author: ST. SURE, District Judge.

text:
    ROBERTSON et al. v. ALASKA JUNEAU GOLD MINING CO. et al.
    No. 22658-S.
    District Court, N. D. California, S. D.
    May 28, 1945.
    Gladstein, Grossman, Sawyer & Edises, of San Francisco, Cal., for plaintiff.
    William E. Colby, of San Francisco, Cal., for defendant.
   ST. SURE, District Judge.

Plaintiff sues on behalf of himself and other former employees of defendant to recover overtime payments and liquidated damages alleged by plaintiff to be due under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. The facts, except as hereinafter specified, are undisputed. Defendant operated a large low grade hard rock gold mine at Juneau, Alaska, for about seventeen years. The rock yielded less than $1 a ton, so that it was necessary for defendant to keep operating costs low. It suspended operations in 1944 due to operational losses over a period of approximately a year. The general superintendent of the company testified that the employees were paid wages higher than those paid by any other large hard rock mine anywhere.

When the Fair Labor Standards Act became effective on October 24, 1938, wages formerly paid on the basis of an eight hour day were adjusted to conform to the Act’s provision for overtime for hours worked in excess of 44 hours a week, by reducing the hourly rate of pay so that, when added to the overtime rate of pay, or time and a half, it resulted in the employees receiving the same or slightly more wages than they were previously paid. Wages were computed on a weekly basis. This method of computation was held to be proper in Walling v. A. H. Belo Corp., 316 U.S. 624, 630, 62 S.Ct. 1223, 86 L.Ed. 1716. In November of 1938, the wages were increased a few cents to compensate the employees for loss of time due to enforced lay-offs. In January, 1939, after an election, the CIO was designated as the bargaining agent for the employees. In May of 1939 the company entered into its first formal agreement with the union, continuing in effect the same method of payment, with the same rates of pay as were fixed in November of 1938. The agreement provided for renegotiation of its terms upon thirty days’ notice. Under the Weekly plan of payment a man who laid off for a day lost overtime for the week to the extent of his hours of absence. Defendant contends that for this reason the union notified the company that it wished to renegotiate this part of the contract, and demanded that the split-day plan of payment be inaugurated, in place of the weekly method of calculation then in force. Mr. Faulkner, the attorney for the company, conferred in Washington with Mr. Andrews, the then Administrator of the Wage and Hour Division, with regard to the legality of such a plan. The Administrator stated publicly that such a plan was legal and authorized. Plaintiff contends that the plan “was the company’s brainchild, not the creature of the union.” However, the contention of defendant is supported by the fact that the split-day plan resulted in an increased overall cost to the company, and by the following testimony on the part of plaintiff:

“Mr. Colby: Did you know by any means afterwards or before the union had requested the company to put this split-day plan into operation? A. I heard it discussed probably many times, but it was— the request was made before I knew it was made. * * *
“The Court: You knew there was a demand made? A. Yes.”

Defendant’s contention that the demand for the change was made by the union is further supported by the recital in the ensuing agreement of October 5, 1939, between the company and the union: “The union has submitted to the company a proposal for computation of pay on the basis of a seven hour day with time and a half for all in excess of said seven hours and the wage scale or schedule based thereon, which proposal the company has accepted.” The agreement provided for a daily rate of pay at seven hours regular time and one hour overtime, based on a 42 hour week. The effect of the new wage scale was that an employee who worked a full week received the same amount or slightly more than he received under the agreement of May 2, 1939, whereas a man who laid off during the week received substantially more than he would have received under the weekly method of computing overtime, because he accumulated overtime by the day rather than by the week. Thus the company paid a greater total amount in wages than it had paid under the original plan.

In May of 1940 a new agreement was entered into, altering the basis of calculating the daily rate to 6.6 hours regular time and 1.4 hours overtime, to meet the provision in the Act reducing working hours from 42 to 40 hours per week as of October 24, 1940. This resulted in a slight increase to the employees because of the fractional split of 6.6 hours regular time and 1.4 hours overtime, rather than of 6% and 1%.

In December of 1940 the Wage and Hour Division notified the company that the split-day plan of computing wages was a violation of the Act, and threatened to sue the company in West Virginia, the state of its incorporation. The overtime which the Administrator claimed was due was computed by adding regular pay and overtime pay for the split day and adding additional time and a half for the last eight hours of the week. A stipulated judgment was entered in this court (Fleming v. Alaska Juneau Gold Mining Company, No. 21,-834-S) for overtime payments to the employees from the date of the notification by the Wage and Hour Division to May 1, 1941, the date of the change back to the weekly plan of computation. The stipulation upon which the judgment was based retited that “defendant enters into this stipulation solely for the purpose of settling this action without contest, and does not admit any of the allegations of the complaint.” Defendant paid its employees the amounts provided for in the stipulated judgment, and in May of 1941 changed back to the 40 hour week base pay and eight hours overtime. The present action seeks liquidated damages for the period covered by the judgment in the Fleming case, and overtime and liquidated damages from April 23, 1940, to December 13, 1940. This court has heretofore held that the statute of limitations has run on claims accruing prior to April 23, 1940.

The validity of the original weekly plan for computation of overtime is not questioned, and is supported by the decision of the Supreme Court in Walling v. A. H. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 1226, 86 L.Ed. 1716. There the court had before it a similar weekly plan of overtime computation. The court said, “It is no doubt true; as petitioner contends, that the purpose of respondent’s arrangement with its employees was to permit as far as possible the payment of the same total weekly wage after the Act as before. But nothing in the Act bars an employer from contracting with his employees to pay them the same wages as they received previously, so long as the new rate equals or exceeds the minimum required by the Act.”

The question here is whether by complying with the demand of the employees that the split-day plan be adopted, under which plan the employees received as much, and in many cases, more than they received under the former weekly plan of overtime computation, defendant violated the Act.

Plaintiff relies on Walling v. Helmerich & Payne, 323 U.S. 37, 65 S.Ct. 11, 12, as authority that the split-day plan in the present case was illegal. In that case the employees had been paid specified wages for each shift of eight, ten or twelve hours daily. After the passage of the Act the first four hours of the eight hour shifts and the first five hours of the ten and twelve hour shifts were designated as “base or regular rate” and the remaining hours as overtime. The effect of the plan was that an employee would be required to work eighty hours a week before he would be entitled to overtime in excess of his former rate of pay. The Supreme Court said, “The actual and regular workweek was accordingly shorn of all significance. * * * respondent’s plan made no effort to base the regular rate upon the wages actually received or upon the hours actually and regularly spent each week in working. Nor did it attempt to apply the regular rate to the first 40 hours actually and regularly worked. Instead the plan provided for a fictitious regular rate consisting of a figure somewhat lower than the rate actually received. This illusory rate was arbitrarily allocated to the first portion of each day’s regular labor; the latter portion was designated ‘overtime’ and called for compensation at a rate one and one-half times the fictitious regular rate. * * * The vice of respondent’s plan lay in the fact that the contract regular rate did not represent the rate which was actually paid for ordinary, non-overtime hours, nor did it allow extra compensation to be paid for true overtime hours. It was derived not from the actual hours and wages but from ingenious mathematical manipulations, with the sole purpose being to perpetuate the pre-statutory wage scale.”

In the present case the contract regular rate was not fictitious or illusory. On the contrary it was legally established by defendant arid later agreed upon by the union in the contract of May 2, 1939. Overtime was actually paid at one and one-half times the bona fide regular rate, and employees who worked no overtime received only the regular rate of pay. Therefore the plan in the present case did not have the “vice” found by the court in the Helmerich case. The adoption of the split-day plan was demanded by the union because it was advantageous to employees who were required for any reason to lay off work. It penalized no one but the defendant. It would be incredible if the mere use of the word “split-day” would have the magic power to render illegal a labor contract which was previously legal, even though wages paid thereunder remained the same or were increased. I think the present case does not fall within the rule of the Helmerich case. I conclude that defendant’s dealings with its employees were lawful and in good faith, and that plaintiff and the other employees on whose behalf he sues are not entitled to recover.

Defendant reserves, but does not seriously urge, the objection that its operations were not in interstate commerce and that therefore its employees were not covered by the Act. The mining of gold and its transportation across state or territorial lines has been held to constitute commerce within the meaning of the Act. Fox v. Summit King Mines, 9 Cir., 143 F.2d 926; Walling v. Haile Gold Mines, 4 Cir., 136 F.2d 102; Sunshine Mining Co. v. Carver, D.C., 41 F.Supp. 60. In view of the decision in the present case, it is unnecessary to discuss this question at length.

Upon the day of the trial plaintiff moves for the first time to join as plaintiffs forty additional former employees of defendant. Defendant interposed vigorous objection to such joinder. The statute of 'limitations had at the time of trial run against the claims of the persons sought to be joined. The motion was untimely, and to grant it would be prejudicial to defendant.-

Defendant may have judgment as prayed for, with costs.

Plaintiff’s motion to join additional parties will be denied.

       No opinion for publication.


author: HOLLZER, District Judge.

text:
    UNITED STATES v. 21 ACRES OF LAND, MORE OR LESS, Etc., et al.
    No. 3752-H.
    District Court, S. D. California, Central Division.
    June 30, 1945.
    Irl D. Brett and Thomas J. Clark, both of Los Angeles, Cal., for the United States.
    John L. Mace, of Los Angeles, Cal., for defendants lessors.
    Raymond Haun, of Los Angeles, Cal., and Julien Francis Goux, of Santa Barbara, Cal., for lessee.
   HOLLZER, District Judge.

This is a suit in eminent domain. The Government is here acquiring an estate in certain real and personal property for a term of years beginning July 10, 1944, originally terminating June 30, 1945, and extendable for yearly periods thereafter during the existing national emergency at the Government’s election, notice of which election must be filed herein at least thirty days prior to the end of the term taken, or subsequent extensions thereof. There is also sought to be taken the right to remove within a reasonable time after expiration of the term or extensions thereof all improvements constructed by or for the Government. To date, the Government has elected to extend the term to June 30, 1946.

The property involved herein consists of certain lands situated in El Montecito, Santa Barbara County, California, together with the improvements thereon, including a furnished hotel known as “Miramar Hotel and Bungalows”. Prior to the commencement of this suit the property in question had been leased by the owners (two of the defendants herein) for a term of years beginning December 15, 1943, and ending December 31, 1948, to another of the defendants. By the provisions of said lease the tenant is granted the option to renew the same for an additional term of five years.

Said lease requires the tenant to pay as rent certain percentages of the gross business done on the demised premises, and in any event to pay a minimum rental of $18,000 per annum. Contemporaneously with the execution of said lease and as a part of the consideration therefor, the lessee deposited the sum of $20,000 in a specified bank, it being provided in paragraph six of said lease that the parties thereto might jointly draw upon said deposit to defray the cost of making permanent improvements upon the demised premises, said improvements to become the property of the lessors, it being understood that any portion of said deposit not used for improvements would become the property of the owners in the event the latter did not sell said premises.

Paragraph Ten of said lease provides as follows: “Ten: Condemnation. The Lessee has heretofore been informed that the State of California has heretofore acquired from Lessors, by deed recorded in Book 552, page 275, Official Records of Santa Barbara County, California, and is the owner of a strip of land adjoining U. S. Highway 101 which is presently being used by Lessors for hotel purposes but which may ultimately be put to highway uses by the State of California. In the event the State of California or the County of Santa Barbara or any other public body shall by condemnation acquire any additional portion of said leased premises for highway or other public purpose, the amount of the award in any such condemnation suit shall belong solely to the Lessors, but Lessors shall pay any and all assessments levied in any such condemnation proceeding. In the event any such condemnation suit shall include any buildings upon said leased premises, said Lessors, at their sole cost and expense, shall relocate the same upon said leased premises in some place mutually agreeable. Further in this connection, should the effect of such condemnation be such as to reduce the rentable rooms in said hotel by fifty (50) per cent, or to preclude the subsequent use of the beach forming part of the leased premises, then either party to this lease may terminate the same on thirty (30) days’ written notice to the other.”

The owners of the property have filed an answer alleging, among other matters, that hy reason of the provisions of said paragraph Ten all sums to be awarded as compensation herein belong to them and further alleging that subsequent to the commencement of the instant suit they served upon the lessee thirty (30) days’ written notice of the termination of said lease, because of the condemnation of the demised premises as pleaded in the complaint and said answer, and also alleging that by reason thereof said lease terminated on September 10, 1944.

In an answer filed • by the lessee it is alleged, among other matters, that pursuant to the terms of said lease he was in possession of the property involved until the Government evicted him and took possession of same, also that said lease has not been terminated by reason of the Government’s taking possession thereof, nor by virtue of any of the provisions of said lease and that, subject to the Government’s temporary right of occupancy upon payment of just compensation to said lessee, the latter is entitled to the full enjoyment of said property, and that the owners of the fee have no right to the compensation to be awarded herein, but that the entire amount thereof belongs to said lessee.

A second issue has been raised herein by reason of the fact that the Government has demanded that the cause be tried before a jury, while the owners and the lessee have waived a jury trial and have joined in opposing the Government’s demand.

Briefs have been filed by counsel representing the respective litigants and extended oral argument has been heard. The many cases cited and discussed in the briefs and at the oral argument unmistakably demonstrate the industry and the painstaking care with which all counsel have attacked the issues requiring determination. We shall consider, first, the question raised by the conflicting claims of the owners of the fee and the lessee.

Counsel for the owners call particular attention to the hereinafter quoted second sentence and also the concluding sentence found in the aforementioned paragraph Ten of the lease, to-wit: “* * * In the event the State of California or the County of Santa Barbara or any other public body shall by condemnation acquire any additional portion of said leased premises for highway or other public purpose, the amount of the award in any such condemnation suit shall belong solely to the Lessors, but Lessors shall pay any and all assessments levied in any such condemnation proceeding. * * * Further in this connection, should the effect of such condemnation be such as to reduce the rentable rooms in said hotel by fifty (SO) per cent., or to preclude the subsequent use of the beach forming part of the leased premises, then either party to this lease may terminate the same on thirty (30) days’ written notice to the other.”

The owners contend that by reason of the first of the two sentences just quoted, the entire award payable in this suit must be paid to the owners and that the tenant has no interest therein. It is further asserted that relying upon the concluding sentence quoted, the owners on August 11, 1944 served upon the tenant thirty (30) days’ written notice of the termination of the lease by reason of the condemnation and that, therefore, such lease became terminated as of September 11, 1944. In this connection it is argued that the first sentence of said paragraph Ten refers entirely to a past event and has no application to the rights of the parties here involved, but that the sentence immediately following refers to future condemnations and prescribes that if any other public body, as for example the United States, shall condemn for any public purpose the amount of the award shall belong solely to the owners.

Likewise, it is insisted that the cases cited establish that when a lease provides for termination upon condemnation, either automatic or by specified notice, the condemnation terminates the lease and the lessee is entitled to no part of the award. Here, it is insisted, the landlord’s position is further fortified by the provision in the lease to the effect that the entire award shall belong to him. Accordingly counsel for the owners contend that, since the United States is a public body and since the taking herein is for a public purpose, the rights of the parties to the lease are fixed by the provisions of paragraph Ten thereof, that is to say, the lessee has no interest in the award and is entitled to no compensation, because said provisions specify that the award shall belong solely to the landlord and because they further direct that in such event the lease shall terminate upon thirty days’ written notice, which notice has been given

Counsel for the lessee, on the other hand, contend that the provisions of said paragraph Ten are not applicable to and do not control a situation where condemnation is had for a temporary use only. In this, connection it is pointed out that by the same paragraph it is provided that under certain specified circumstances condemnation shall not effect determination of the lease nor deprive the lessee of all rights thereunder, but on the contrary, in such a contingency, additional obligations are imposed upon the lessors for the benefit of the lessee. Such a situation referred to would, arise in the event condemnation should involve a portion of the “demised premises upon which buildings are located, in which event the owners at their sole expense would be required to relocate the same elsewhere upon said premises. Under another contingency, the owners would be obligated to pay all assessments levied by reason of the condemnation proceeding. Likewise, attention is called to another provision in the same paragraph which authorizes either party to the lease to terminate the same, should the effect of condemnation be such as to reduce the rentable rooms in the hotel by fifty (SO) per cent, or to preclude the subsequent use of the beach frontage of the demised premises.

It is further pointed out that under the condemnation sought herein the Government may surrender the demised premises long before the expiration of the initial term fixed by the lease; also that the same provides that the owners and the tenant may jointly draw upon the $20,000 deposit made by the latter to pay for permanent improvements upon the demised premises, and that such improvements shall become the property of the former. Again it is specified in paragraph Six of the lease that “should said Lessors sell said leased premises prior to the date that the whole of said fund has been invested in said premises, any part remaining unspent at the time of such sale shall revert to Lessee free of any obligation hereunder”, but that “any part of said fund not used for improvements * * * during the term of this lease, provided said premises have not been sold by said Lessors, shall revert to * * * Lessors, * *

Accordingly it is argued that, carried to their ultimate conclusion, the contentions advanced on behalf of the owners would lead to the inequitable result that the demised premises would be returned to the latter prior to the expiration of the original term of the lease, and all of the tenant’s rights would be forfeited to the landlord, although the lessee had committed no default, and although no other event had occurred which under the provisions of the lease entitled the lessors to recover possession of said premises. For under such circumstances it could successfully be maintained that “said premises have not been sold by said Lessors.” The rights thus forfeited would include the tenant’s exclusive privilege to the possession and use of said premises and of all improvements thereon, including the improvements paid for by him, and also his right to have refunded to him any unexpended balance of the aforementioned deposit. Likewise, the lessee urges that, by the particular phraseology employed in the first two sentences of paragraph Ten of the lease, the parties to said instrument intended to and did express the idea that the provisions of said paragraph pertained only to situations wherein either the State of California had acquired, or where said state or a political subdivision thereof thereafter might acquire, title to, as distinguished from a leasehold interest in, a portion or portions of the demised premises.

Hence lessee’s counsel contend that the construction which the lessors seek to place upon the provisions of the lease would be inequitable and would give to the latter an unfair and unreasonable advantage over the former. On the other hand, upholding the position taken by the lessee and adjudging that the provisions of said paragraph Ten are not applicable to the present suit, counsel assert, would result in giving to the lease the construction most equitable to the parties thereto, instead of one which would give to the landlord an unfair and unreasonable advantage over the tenant.

In United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, suit was brought in eminent domain to acquire temporary occupancy of a leased building taken from a tenant holding under a long-term lease. The estate being acquired by the Government was for a term of approximately one year, while the term of the tenancy would not expire for several years thereafter. Speaking for the Supreme Court, Mr. Justice Roberts at pages 378-380 of 323 U.S., at page 359 of 65 S.Ct., said:

“When the sovereign exercises the power of eminent domain it substitutes itself in relation to the physical thing in question in place of him who formerly bore the relation to that thing, which we denominate ownership. In other words, it deals with what lawyers term the individual’s ‘interest’ in the thing in question. That interest may comprise the group of rights for which the shorthand term is ‘a fee simple’ or it may be the interest known as an ‘estate or tenancy for years’, as in the present instance. The constitutional provision is addressed to every sort of interest the citizen may possess. * * *
“But it is to be observed that whether the sovereign substitutes itself as occupant in place of the former owner, or destroys all his existing rights in the subject matter, the Fifth Amendment concerns itself solely with the ‘property,’ i. e., with the owner’s relation as such to the physical thing and not with other collateral interests which may be incident to his ownership. * * *
“The sovereign ordinarily takes the fee. The rule in such a case is that compensation for that interest does not include future loss of profits, the expense of moving removable fixtures and personal property from the premises, the loss of goodwill which inheres in the location of the land, or other like consequential losses which would ensue upon the sale of the property to someone other than the sovereign. No doubt all these elements would be considered by an owner in determining whether, and at what price, to sell. No doubt, therefore, if the owner is to be made whole for the loss consequent on the sovereign’s seizure of his property these elements should properly be considered. But the courts have generally held that they are not to be reckoned as part of the compensation for the fee taken by the Government. * * *
“The right to occupy, for a day, a month, a year, or a series of years, in and of itself and without reference to the actual use, needs, or collateral arrangements of the occupier, has a value.”

In the same case, Mr. Justice Douglas, in a concurring opinion in which Mr. Justice Black joined, stated: “It would indeed be a novel rule of law which allowed the Government to oust a person from a portion of his leasehold, occupy the premises, but pay only a part of the rent, leaving the balance to be paid by him who though ousted holds the balance of the term.”

In United States v. 150.29 Acres, etc., 2 Cir., 148 F.2d 33, 34, the Federal Government by condemnation acquired the fee to certain lands, improved with several structures held by several tenants under various leases. One of said leases contained a provision reading: “Lessee further agrees that if at any time during the term of this lease the said premises or any part thereof shall be acquired or condemned and/or purchased by any municipality or political subdivision of the state wherein said premises are located, or by any company or corporation lawfully qualified to exercise the right of eminent domain the lessor shall have the right to cancel and terminate this lease by giving to lessee not less than 30 days’ written notice of such intention to cancel.”

The same lease further provided that in the event of a sale of the demised premises “lessor reserves and has the right to cancel and terminate this lease to take effect at any time after December 31, 1941, by lessor giving to lessee not less than six (6) months’ written notice of such intention so to cancel and terminate;” and also provided that in the event said lease were thus cancelled and the lessee required to vacate the demised premises during the 26-month period beginning January 1, 1942, then the lessee should receive from lessor the sum of $40,000.

The lessor in the case just cited contended that the suit constituted a condemnation within the meaning of the language first above quoted, also that under the same the lessor had the privilege of terminating the lease by giving to the lessee 30 days’ written notice, and that at most the question of the value of the leasehold there involved would be limited to a 30-day period.

The District Court ruled that the provision first quoted from the lease in question did not apply to condemnation by the United States. In agreeing with this construction, the Seventh Circuit Court of Appeals said, 148 F.2d at page 35: “The language is too plain to permit us to interpolate the United States as one intended to be covered by this provision. True, the parties might well have included the United States, and we might speculate that it was their intention so to do, but it would be pure speculation and unjustified from the language used. The United States has in some instances been held to be a ‘body politic’ and ‘body corporate,’ but we do not think the cases justify the holding that in this instance it was the intention of the parties that the United States be covered by the word ‘corporation.’ The sequence of the words ‘company or corporation’ is somewhat significant — they come at the end of a catalogue of entities, commencing with 'any municipality.’ It is unlikely that in drafting a lease the parties would, if they intended to include the United States, place it at the end of the list, and there refer to it as a ‘company or corporation.’ See United States v. Cooper Corporation, 312 U.S. 600, 61 S.Ct. 742, 85 L.Ed. 1071; Davis v. Pringle, 4 Cir., 1 F.2d 860, affirmed 268 U.S. 315, 45 S.Ct. 549, 69 L.Ed. 974.”

In United States v. Four Parcels of Land, D.C., 20 F.Supp. 306, the same being a suit in eminent domain, the District Court was required to construe certain provisions of a lease. The Court there adjudged that the tenant was entitled to an award for the value of his leasehold interest and also that the owner was entitled to an award for the value of his fee burdened with such leasehold. In the course of its opinion the Court, 20 F.Supp. at page 311, said:

“Section 236(a) of the Restatement of the Law of Contracts states: ‘An interpretation which gives a reasonable lawful and effective meaning to all manifestations of intention is preferred to an interpretation which leaves a part of such manifestations unreasonable, unlawful or of no effect.’
“As was stated in Fleischman v. Furgueson, 223 N.Y. 235, 119 N.E. 400, 402: ‘A court will endeavor to give the construction most equitable to both parties instead of the construction which will give one of them an unfair and unreasonable advantage over the other.’
“If there were no paragraph at all in the lease relating to the situation that might arise by reason of a taking of the property in a condemnation, then the law would give the tenant an award for his leasehold interest. Any provision that would be in derogation of the tenant’s right to such an award should be clear and unambiguous.”

Admittedly, in the instant suit it cannot be said that the State of California or the County of Santa Barbara or any other public body of said state is acquiring by condemnation any additional portion of the leased premises. It is equally clear that in this suit the Federal Government is acquiring, not the fee title to the lands and property involved, but a considerably less estate therein, namely, a tenancy for years, and that on the record before us such estate may end many years'prior to the termination of the estate owned by the lessee.

The logic upon which the decisions were based in the cases from which we have heretofore quoted persuades us that by the provisions of the lease under consideration, the parties thereto did not intend to effect a forfeiture of the lessee’s rights under a state of facts such as those disclosed by the present record. The situation here is one in which the sovereign exercising the power of eminent domain is substituting itself in relation to an estate or tenancy for years in place of the lessee, but only as to a portion of such lessee’s ownership thereof. That is to say, so far as presently disclosed, it is a part of the lessee’s ownership of such estate which the sovereign is taking. While it may be that the evidence to be introduced at the trial will prove that the sovereign is also destroying or taking some of the rights of the owner of the fee, it is clear that upon the face of the pleadings the government is here seeking to substitute itself as occupant of the demised premises in place of the owner of the right of such occupancy. The owner of such right being the lessee, it is the latter who “must be put in as good position pecuniarily as if his property had not been taken”, and this is to be done by paying to him the value of the interest taken.

We recognize that, taking into consideration the particular provision of the lease which fixes as the maximum rent to be paid by the tenant certain percentages of the gross business done on the demised premises, and furthermore because of the circumstance that under the present record it cannot be determined whether the estate ultimately to be acquired herein by the government will constitute a tenancy extending beyond the term of the existing lease, the lessors may also be adjudged to be entitled to an award herein.

We turn now to a consideration of the question whether, since the defendants have waived a trial by jury, the government is entitled to such trial over the objections of the former. It is argued on behalf of defendants that the Constitution of the United States does not grant the right to a jury trial in an eminent domain proceeding; that by the fifth and seventh amendments to the Constitution a jury trial is guaranteed only in a common-law action; and that a suit in eminent domain is not a proceeding at common law as to which a right to a jury trial is guaranteed, but that on the contrary a jury trial in eminent domain procedure was unknown at common law. Likewise it is pointed out that the Second War Powers Act, SO U.S.C.A. Appendix § 631 et seq., under which the instant suit is being prosecuted confers no right to a jury trial, but specifically relegates the question of such right to the law of the state in which the suit is instituted. Again, it is urged that under the applicable statutory provisions the practice, pleadings, forms and modes of proceedings in suits in eminent domain must conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the state within which the United States District Court is held. Hence it is insisted that in the instant suit the determination of the question as to the right to a jury trial must be decided in conformity with the relevant law of the State of California.

Next it is argued that the laws of the State of California do not confer any right to a jury trial in an eminent domain proceeding upon the United States. In that connection it is pointed out that the sole right to a jury trial in such a suit in California arises from Section 14, Article I of the State Constitution. This section, so far as relevant here, reads: “Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner * * * which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases * *

It is further urged that the foregoing provision is one of a number of rights set forth in said Article I and which are guaranteed to the people as against the state. That is to say, the rights there enumerated pertain to those which are taken from the state government for the benefit of the people and do not relate to any powers conferred upon such government, but rather constitute a limitation of power imposed by the people on the state.

Accordingly it is contended that the provisions of said Article I constitute a declaration of rights reserved to the people for their protection against governmental aggression, and that Section 14 of said article grants only to the property owner, but not either to the State of California or to United States, the right to a jury trial in an eminent domain suit.

On the other hand, while conceding that none of the provisions of the United States Constitution grants any right to a jury trial in eminent domain proceedings, and further admitting that the Second War Powers Act confers no right to a jury trial, but specifically relegates the question of such right to the law of the state in which the proceedings are instituted, government counsel contend that the Constitution of the State of California, more particularly in Section 14 of Article I thereof, guarantees not only to the property owner but also to the sovereign the right to a jury trial in such proceedings for the purpose of fixing the compensation to be paid by the latter to the owner.

While it is true, say government counsel, that some of the California decisions refer to the right of the owner to a jury trial, it is not a fact that all of the cases touching upon that subject do so. On the contrary, it is insisted that the principal cases covering such point in which the Supreme Court of California has spoken on the question make no such statement, but instead specifically refer to the .right guaranteed by the aforementioned constitutional provision as the right to the trial by jury of a particular issue, to-wit: the issue of compensation to be paid for the taking of private property. Again it is argued that under the Condemnation Conformity Act, 40 U.S.C.A. § 258, which is incorporated by reference in the Second War Powers Act, if the law of the state, constitutional or statutory, excludes the right to trial by jury, neither party to the action is entitled to such a trial; on the other hand, if the state law requires a trial by jury, the granting of such right is imperative unless lawfully waived; and likewise, if the state law is optional or permissive, such right is optional or permissive.

Finally, it is urged by government counsel that Section 14 of Article I of the California Constitution does not constitute the grant of the right to a jury trial in an eminent domain proceeding to only one of the parties thereto, but on the contrary is a mandate that the amount of the compensation to be paid for the property taken shall be ascertained by a jury, unless a jury be waived by all of the parties involved.

In People v. Ricciardi, 23 Cal.2d 390, 401, 144 P.2d 799, 804, the Supreme Court of California said:

“When compensation is claimed either for a taking or a damaging the issues may be presented for adjudication in at least two forms of action. In one there is an . absence of a proceeding in eminent domain. In that form of action the property owner seeks relief by bringing an action for compensation for a taking or a damaging of his property or both, as the case may be. * * *
“The other form of action is, as here, a proceeding in eminent domain in which the procedure is laid down by section 1248 and' related sections of the Code of Civil Procedure. * * * I-n the other case the condemning authority, in commencing the proceeding, affirmatively alleges ownership in the defendants, the contemplated taking and severance, and seeks a determination by the court of issues confided by the law to the decision of the court and also seeks a determination by the jury, unless one be waived, of the compensation which should be paid to the property owner.”

Further along in the same opinion (at page 805 of 144 P.2d) the court quotes with approval from the decision rendered in City of Oakland v. Pacific, etc., Co., 171 Cal. 392, at page 397, 153 P. 705, at page 707, the following: “It is only the ‘compensation,’ the ‘award,’ which our Constitution declares shall be found and fixed by a jury.”

Our analysis of the decision rendered in People v. Ricciardi, supra, convinces us that in that portion of the opinion where the above-quoted excerpts are found the Supreme Court of California was discussing what questions may be submitted to a jury in an eminent domain suit, and what questions must be submitted to a jury, unless a jury trial be waived. Likewise, as we read said decision, the court there held that the only question required to be submitted to a jury in such a proceeding is the amount of the award or the compensation to be paid to the property owner, unless a jury be waived in the manner prescribed by State law. In other words, in California, the state, as well as the property owner, is entitled to a jury trial upon the issue of compensation, unless such a trial be waived, and under California practice one is waived by the state as well as the owner, if not demanded as prescribed by law.

In the present suit the government has demanded a jury trial. Accordingly we. conclude that upon the issue of the amount of compensation to be awarded herein the government is entitled to a jury trial.


author: STRUM, District Judge.

text:
    WILLIAMS v. BOWLES, Administrator, Office of Price Administration, et al.
    No. 834J Civil.
    District Court, S. D. Florida, Jacksonville Division.
    June 29, 1945.
    Millard B. Conklin, of Daytona Beach, Fla., for plaintiff.
    John G. Simms, of Jacksonville, Fla., for defendants.
   STRUM, District Judge.

Plaintiff, a filling station operator, seeks to enjoin the enforcement of a suspension order issued by the Chief Hearing Commissioner for Region IV, suspending plaintiff from dealing in gasoline for ninety days, for violation of Ration Order 5C and General Ration Order No. 8, issued under authority of the Second War Powers Act, 50 U.S.C.A.Appendix § 1152, as amended by 50 U.S.C.A.Appendix § 633.

In brief, the facts found by the Administrative Hearing Commissioner and Administrator are that on November 10, 1944, plaintiff had an inventory shortage of 463 gallons of gasoline; that during a period of 60 days he acquired and used 207 counterfeit gasoline ration coupons out of 805 submitted during that period; and that during November, 1944, plaintiff possessed gasoline ration coupons which were not acquired in accordance with Ration Order 5C, in that they either bore no automobile license numbers, or numbers which were spurious.

This Court is not authorized to review the administrative finding for mere error, nor to determine whether or not the Court, on the evidence before the administrative officers, would have reached a different conclusion. The authority and responsibility for the issuance or withholding of rationed commodities has been confided by Congress to administrative authority under the direction of the President. When the administrative authority acts within the scope of the authority delegated to it by Congress, and when it acts upon substantial supporting evidence, after due notice to the party charged with a violation and a fair opportunity to him to be heard, their findings are final. It is only when in their proceedings they violate the essential requirements of due process that their actions are subject to judicial restraint. Perkins v. Brown, D.C., 53 F.Supp. 176, approved in Brown v. Wilemon, 5 Cir., 139 F.2d 730; Illario v. Bowles, D.C., 57 F. Supp. 404; L. P. Steuart & Bro., Inc., v. Bowles, 322 U.S. 398, 64 S.Ct. 1097, 88 L.Ed. 1350; Williams v. Bowles, D.C., 56 F.Supp. 283.

Even under the Act of December 20, 1944, 50 U.S.C.A.Appendix § 633, the Courts do not review the administrative findings for mere error of judgment. Such review is still confined to a determination of whether of not the administrative authority has proceeded according to the essential requirements of law, and whether there is substantial evidence to support their findings. If so, the Court is not authorized to inquire further. Illario v. Bowles, D.C., 57 F.Supp. 404; Perkins v. Brown, D.C., 53 F.Supp. 176.

In this case, the facts found by the Hearing Commissioner are not denied by the plaintiff. Plaintiff was given a full, fair hearing, after due notice. There is substantial evidence to support the original findings of the Hearing Commissioner, and the appellate findings of the Hearing Administrator. Plaintiff was accorded an opportunity to introduce evidence in his behalf, as far as he desired to do so.

The principal contention made by the plaintiff is that his transgressions were not wilful, but merely negligent and inattentive. Assuming this to be true, it is no bar to a suspension order, for a negligent or inattentive dealer can do just as much harm to the rationing plan as one who acts wilfully or with sinister motives. “Wilfulness” is an essential element of the criminal offense created by the Act, but it is not an essential prerequisite to a suspension order. The absence of wilfulness is therefore not an adequate ground for judicial relief against such a suspension order. This proposition was considered by the Circuit Court of Appeals for this Circuit in Brown v. Wilemon, 5 Cir., 139 F.2d 730, 732, an exact counterpart of this case. In reversing the District Court which granted an injunction restraining a similar suspension order, the Court quoted with approval the following comment of the Hearing Administrator: “Thus wilfulness is not a necessary element in establishing a violation of a ration order. The purpose of suspension order proceedings is to determine whether a respondent may continue to be entrusted with the privilege of dealing with rationed commodities without further limitations.” See also Illario v. Bowles, D.C., 57 F.Supp. 404.

A Court should not substitute its judgment , for that of the administrative officers, where, as here, the plaintiff was fully and fairly heard after reasonable notice and there is substantial evidence to support the administrative finding. It follows that the injunction must be denied.


author: KALODNER, District Judge.

text:
    MYERS v. BALTIMORE & O. R. CO.
    No. 4040.
    District Court, E. D. Pennsylvania.
    June 27, 1945.
    Joseph G. Feldman, of Philadelphia, Pa., for plaintiff.
    Howard Burtt, of Philadelphia, Pa., for defendant.
   KALODNER, District Judge.

This action to recover for personal injuries and property damage arises out of a grade crossing collision between defendant’s train, alleged to have been negligently operated, and plaintiff’s automobile, which was operated by him at the time of the accident. Defendant denies the charge of negligence and asserts as an additional defense the negligence of the plaintiff. The broad questions for determination are at once evident.

The cause having come on to be heard by the court without a jury, on the basis of the pleadings and additional evidence, I make the following findings of fact:

1. The accident on which plaintiff’s claim is based occurred at the intersection of Oregon Avenue and Vandalia Street, in the City of Philadelphia, on September 25, 1943 at about 10:30 P.M.

2. The night was dark, but clear and dry, and there was an electric street light at the southeast corner of the intersection.

3. At the time of the accident there were no obstructions north of Oregon Avenue at Vandalia Street or at any point within one hundred and fifty feet east of the intersection.

4. At Oregon Avenue there are two sets of tracks with a space of eight feet between each track. North of Oregon Avenue there is an unobstructed view of approximately one city block.

5. Immediately prior to and at the time of the accident defendant’s engine, pulling twenty-eight loaded freight cars, was southbound on Vandalia Street on the west track, and at the time of the accident was travel-ling at a speed of about six miles per hour, being operated by its servants, agents or employees, in the course of their employment.

6. The automatic engine bell was turned on at a point approximately ten carlengths, or 400 feet, north of Oregon Avenue and continued to ring until after the collision occurred.

7. The engine’s headlight was on bright at a point approximately ten carlengths, or 400 feet, north of Oregon Avenue and continued to burn bright until after the collision occurred.

8. The engineer blew the whistle for the crossing four times: two long blasts, one short blast, and one long blast; the first at a point eight carlengths, or 320 feet, north of the intersection and the last one as the engine entered the crossing. »

9. Immediately prior to and at the time of the accident plaintiff’s automobile was westbound on Oregon Avenue about four feet from the north curb line thereof.

10. Immediately prior to the time of the accident plaintiff was travelling at a very slow rate of speed.

11. At no time was any flagman or signalman situated on Oregon Avenue at or near the tracks to signal the approach of the engine.

12. Plaintiff did not stop his automobile before entering on the tracks of defendant, nor did he look and listen.

13. Plaintiff had driven over the crossing at least once before.

14. Plaintiff failed to heed the signals given by the engineer warning of the approach of the train.

15. As a result of the accident plaintiff sustained damage to his automobile in the amount of $440.

16. Plaintiff sustained permanent injuries in the form of a laceration three inches long on the right arm starting just above the elbow and going down over the posterior aspect of it, across what is known as the “funny bone”, requiring three sutures. Plaintiff sustained considerable bleeding as a result of this laceration. This laceration healed in the form of a permanent scar.

17. As a result of said laceration and injury, plaintiff has sustained a loss of sensation on the ulnar aspect of the right arm from the point of the injury down into the little finger, which will be permanent.

18. The plaintiff sustained an injury to his forehead with a scar at the place of the injury.

19. At the time of the accident plaintiff was employed by the Sun Ship Building Company as a laborer and earned $54.70 per seven-day week.

20. As a result of the injuries above mentioned plaintiff was disabled from his employment for a period of five weeks with loss of earnings in the amount of $273.50.

Discussion.

The accident which gave rise to this litigation occurred in Philadelphia at approximately 10:30 P.M. on September 25, 1943. The weather was clear and dry; the night dark. The plaintiff, with a Miss Williams occupying the front seat next to him, was driving a 1939 Buick sedan in a westerly direction on Oregon Avenue, about four or five feet south of the north curb approaching the intersection of Vandalia Street, on which are located two sets of the defendant’s tracks about eight feet apart. There was a single street light on the southeast corner of the intersection and plaintiff was using the “bright” beam of his automobile lights. The surrounding area to the north is not built up, and there are no other permanent obstructions, so that ordinarily within 150 feet east of the intersection there is a clear view northward for a distance of better than a city block; at the time of the accident there were no temporary obstructions to the view.

As the automobile crossed the second, or west track, it was struck on the right, or north side, at about the center, by defendant’s engine, which waa travelling south at a speed of about six miles per hour, pulling twenty-eight loaded cars.

Having set out the pertinent facts established by the uncontradicted evidence, the issues between the parties are narrowed down to two questions: (1) whether the defendant, through its servants or employees, was guilty of negligence in failing to give adequate warning of the approach of its train to the intersection, and (2) whether the plaintiff himself was guilty of negligence in failing to stop, look and listen before making the crossing.

The plaintiff testified that he stopped about four or five feet before reaching the east track and that he looked on both sides at that time, and again as he proceeded across, but on neither occasion did he hear or see anything. The plaintiff’s testimony was substantially corroborated by a Miss Edith Williams who was sitting next to him on the front seat of the car. However, it does not appear from the record that Miss Williams herself looked or listened.

Moreover, the testimony given by Myers and Miss Williams on the witness stand is in conflict with their statements, made shortly after the accident. In .his statement to the defendant’s claim agent, Ralph M. Lett, on September 30, 1943, Myers said he was travelling five to ten miles per hour as he had slowed up for the crossing; he did not see anything coming nor did he hear any whistle; as the engine struck, he heard a bell ringing and when he looked out the headlight of the engine was shining so that he could see the reflection on the tracks south of the car; the bell was still ringing when he got out of the car. This, statement was signed by Myers after it was read to him by his wife, who also signed. On the stand Myers stated that at the time the statement was taken he was ill and in bed as a result of the accident; he could not read, and could not and would not sign, but did so only after Lett’s urging.

Moreover, he testified that he told Lett just what he said on direct examination, denying the statements in conflict with his testimony in Court; that he asked Lett to change the part about the light, and that Lett told him he would do so. This-was totally denied by Lett, who testified that after the parties signed the statement the only conversation they had related to the disposition of the wrecked car, and that after he left he was called back by Mrs. Myers who asked him about his credentials, and whether he was sent by their own attorney.

In her statement to Lett, given on-October 4, 1943, Miss Williams said the automobile did not stop at the crossing and that as she was helped out of the car she noticed that the engine light was turned' from “dim” to “bright”. Immediately prior to the accident she did not hear any whistle or bell, nor could she recall whether the bell was ringing after the accident. On the stand, she denied making these statements to Lett, but admitted signing the statement and also the clause averring that she read and understood it. Her only explanation of the contradictions between the statement and her testimony in Court was that she did not actually read the former, but merely glanced over it.

The evidence adduced by the plaintiff is partly negative, and the affirmative evidence is patently in conflict with prior statements made within a few days after the accident. Moreover, the testimony of Miss William and her inability to account for the differences between her statements in Court and her signed statements to Lett is particularly damaging to plaintiff’s case.

The defendant produced, as witnesses, three of the crew on the train which figured in the collision in support of its contention that at the time of the accident the engine bell was ringing, the bright beam of the headlight was turned on, and just prior to entering the intersection the engine whistle was sounded four times — two long blasts followed by a short and a long blast. Clarence D. Rodenbaugh, the yard' foreman, testified that he was on the left side of the engine at the time of the accident ; that the engine had stopped approximately twenty car lengths (about 800 feet) from Oregon Avenue to await completion of the train; that the clapper bell on the engine was ringing continuously from the time the engine began to move to the time of the accident; that the bright beam of the headlight was on; that the engine whistle was first sounded at about eight to ten car lengths from Oregon Avenue; that four blasts were given — two long, a short and a long— the last blast being completed as the crossing was reached; that at this point he yelled to the engineer “Hold it”; and that he first noticed the Myers car when it was about 150 feet from the crossing, the engine being about eight to ten car lengths away.

This testimony as to the light, bell and whistle was confirmed by the testimony of Anthony G. Kelly, the engineer, and Lawrence Granthan, the fireman. Kelly also testified that he did not see the westbound automobile, but that he did see an eastbound machine which stopped when the engine was about six car lengths from the crossing. He also stated that when he heard the yell “Hold it”, he applied the emergency brake.

Granthan, who occupied a position on the left side of the engine, further testified he first saw the westbound automobile when the engine was about seven car lengths from Oregon Avenue and at that time the automobile was about 300 feet from the tracks travelling about five to six miles per hour.

In addition to these witnesses, the defendant produced a John Kezlaw, the driver of the eastbound automobile to -which Kelly, the engineer, referred. This witness testified that he heard the engine’s whistle “a couple of times”; he stopped about thirty feet from the west track, and within a few seconds the accident happened. He did not hear any warning signal of the approaching train other than the whistle, and his attention was drawn by the lights of the Myers’ car so that he did not notice whether the engine’s headlight was on.

I am of the opinion that the testimony of these men is entitled to full credence, and that it clearly establishes that the engine’s headlight was burning bright and its bell was ringing continuously from a point at least 400 feet before the point of the accident, and that the engine’s whistle was sounded four times as the train approached the intersection, the first blast being given about 320 feet north of Oregon Avenue, and the last blast being completed as the engine entered the intersection. Although the night was dark, it was clear and dry and there was practically no traffic on the highway. Furthermore, within 150 feet east of the tracks, there was an unobstructed view northward for more than a city block; the engine was travelling at the rate of six miles per hour, and Myers at four to ten miles per hour. Under the circumstances, I am of the opinion that the warnings and signals given by defendant’s employees were adequate and timely. I find it difficult to believe the plaintiff’s assertion that he stopped, looked and listened before crossing the first track, and looked and listened again before crossing the second or west track. Had he been as observant as he claims, he would undoubtedly have heard or seen the approaching train, for, according to his own story, he was struck when he had proceeded only four feet across the second track: the train must have been practically upon him at the time he claims to have looked and listened.

Considering all the evidence. I am of the opinion that the plaintiff failed to stop, look or listen, and that he failed to heed the warnings given of the approaching train. Under the well-settled law of Pennsylvania such conduct is negligence per se and bars recovery. Baltimore & Ohio R. Co. v. Muldoon, 3 Cir., 1939, 102 F.2d 151, 152. Moreover, I feel that the plaintiff has attempted to alter his version of the accident in order to recover his losses caused by his own negligence.

Accordingly, I state the following conclusions of law:

1. The evidence fails to show any negligence on the part of the defendant, its servants, agents or employees, which caused or contributed to the happening of the accident.

2. The accident occurred solely as a result of the negligence of the plaintiff himself.

3. Under all the evidence the Court finds for the defendant.

An order may be submitted in accordance with this opinion.