author: KNIGHT, District Judge.

text:
    UNITED STATES ex rel. ANDONOVITCH v. CARR, District Director of Immigration and Naturalization.
    No. 1397 A.
    District Court, W. D. New York.
    May 17, 1934.
    Leland G. Davis, of Buffalo, N. Y., for petitioner.
    Richard H. Templeton, U. S. Atty., and Willard R. Chamberlin, Asst. U. S. Atty., both of Buffalo, N. Y., for respondent.
   KNIGHT, District Judge.

Relator was ordered deported on the ground that at the time of his entry, which was subsequent to July 1, 1924, he was not in possession of an unexpired immigration visa. The alien came to-this country legally in 1919 and claims never to have returned to his native land. The record contains testimony of an immigration inspector that the employment record of the Bethlehem Steel Company shows that the relator left his employment with that company in 1929, stating that he was going to the old country, and that he again worked for that company in the later part of 1927. Several letters, relating to a foreign investigation as to the presence of the alien in Carev Dvor, Yugoslavia, during the period from 1920 to 1927, were introduced in evidence by the examining inspector. One is from the District Director of Immigration, Buffalo district, to the Commissioner General of Immigration at Washington, requesting such investigation. There is also a letter from the American consul reporting receipt of a communication from the chief of Prespan district, Yugoslavia, to the effect that relator was at Carev Dvor, Yugoslavia, with his family during the period 1920-1927. A copy of this communication and a letter transmitting the original letter, and a copy thereof to the District Director at Buffalo, N. Y., were also introduced. The letter of the district chief of Prespan district discloses, not only that relator was in Carev Dvor, Yugoslavia, during the period set forth, but also that he has a daughter born in 1922 and a son bom in 1925.

The admission of these letters in the proceedings is.objected to by the alien on the ground that they are not authenticated, nor is the source of the information from which they were prepared revealed. It is contended that the evidence other than these letters is not sufficient to justify the contention of the Department of Labor.

Hearsay evidence is admissible in deportation proceedings before an immigration inspector. United States v. Brough (C. C. A.) 35 F.(2d) 377; United States v. Curran (C. C. A.) 12 F.(2d) 636, 638. In the latter case, it was held that a letter from the Department of State to the Assistant Commissioner General of Immigration, indicating that the American consul had cabled to the State Department stating that his office did not issue visas to certain immigrants, being a.n official communication, could be considered with controlling weight. Two cablegrams from consuls, one to the Commissioner General of Immigration, the other to the State Department, were also before the Board. The court stated: “This evidence, considering its source, was sufficient. Upon it, the board of inquiry was justified in making the determination it did.”

In the present case, the letter from the American consul is an official communication and is entitled to such weight as the Board of Inquiry sees fit to give it. Even though that letter were the only proof, there would be sufficient proof to justify the Board in making the determination at which it arrived. We find here other proof to which reference has been made.

The relator is remanded to the custody of the Department of Labor.


source: Caselaw Access Project

license: Public Domain

text:
    In re GREEN.
    No. 21517.
    District Court, W. D. New York.
    May 17, 1934.
    Bernhart H. Holt, of Buffalo, N. Y., for petitioner.
    William J. Semoffsky, of Buffalo, N. Y., for judgment creditor.
   KNIGHT, District Judge.

Bankrupt moves for an order restraining a judgment creditor from taking further steps to- enforce payment of his judgment and particularly to enjoin said judgment creditor from securing an order directing the bankrupt to show cause why he should not be punished for contempt for failure to appear for examination in supplementary proceedings in response to an order of the county court, Erie county, New York.

Bankrupt asserts that, subsequent to his failure to appear and after the service of an order to show eause why he should not be punished for contempt for such failure, he made payments on the judgment at the office of the attorney for the judgment creditor and was told to forget about the show eause order, which was not adjourned to any later date. Thereafter and on March 30, 1934, he filed a voluntary petition in bankruptcy. It-is contended by the bankrupt that the creditor waived the contempt by accepting payments on the judgment and by failing to exercise his right to a contempt proceeding ht the time it was available.

A fine levied for contempt for failui-e to obey an order of the court is not discharge-able in bankruptcy. In re Thomashefsky (C. C. A.) 51 F.(2d) 1040; In re Spagat (D. C.) 4 F. Supp. 926.

The order directing the debtor to appear for examination in supplementary proceedings was a valid order when made. Likewise, the order directing the debtor to show cause why he should not be punished for contempt for failure to appear was valid when made. The bankrupt asserts that the creditor waived the contempt and abandoned the proceeding. This is a defense to be urged in the state court. This court has no power to interfere.

Bankrupt’s affidavit fails to show that the debt as scheduled is dischargeable. The motion is therefore denied, not only as to restraint of contempt proceedings, but alsoi as to restraint of any other proceedings for enforcement of the judgment against bankrupt.


author: BRIGGLE, District Judge.

text:
    In re BREMER.
    No. 7519.
    District Court, S. D. Illinois, S. D.
    May 28, 1934.

      J. B. Jiskra, of Bloomington, 111., for bankrupt.
    Richard F. Dunn, of Bloomington, 111., for objecting creditors.
   BRIGGLE, District Judge.

On the 28th day of April, 1933, one Edward W. Bremer was adjudicated a bankrupt, and subsequently various proceedings were had before the referee in bankruptcy.

On the 10th day of February, 1934, bankrupt filed his petition herein for discharge, and on the 20th day of March, 1934, one Albert Worley, alleging himself to be “a party interested” in the estate of said Edward W. Bremer, bankrupt, filed objections to bankrupt’s discharge. The bankrupt, by his answer to the objections, has among other things raised the question that Albert Worley is not “a party in interest” within the meaning of the Bankruptcy Act, § 14, as amended (11 USCA § 32), and, therefore, has no lawful right to object to such discharge.

Albert Worley nowhere appears to be a creditor of the estate and the objections filed do not in any manner disclose in what way he might be a party interested in the estate of the bankrupt. Evidence has been offered and briefs submitted, and at the time of the submission of briefs, Albert Worley forwarded to the court a proposed amendment to his objections heretofore filed. By the amendment he says that he is the father of Carl Worley and Vera Worley, who are heirs of the William Bremer estate, and this estate has been listed by the bankrupt* in his schedules as a creditor. The amendment further undertakes to show that Albert Worley is the agent of Carl and Vera Worley and is their attorney in fact with authority to represent them in this proceeding.

Neither by the original objections or the amendment now sought to be made does it appear that either Carl or Vera Worley is a creditor of the bankrupt. If the court were to permit the filing of the amendment suggested, it still would not appear that Carl and Vera Worley were entitled to object to his discharge. It nowhere appears whether the William Bremer estate was testate or intestate, unless it be that the court would conclude from the bankrupt’s listing of “the William Bremer Estate, Caroline Bremer, Executrix,” as a creditor, that it was a testate estate. If this is true, then, of course, it might well follow that Carl and Vera Worley, although heirs of William Bremer, would have no interest whatever in his estate.

Assuming, however, that the estate was intestate, the objections and proposed amendment thereto are further defective in failing to show in what manner Carl and Vera Worley are heirs of that estate. The bare assertion that they are heirs is a mere conclusion without supporting facts.

Finally, assuming that the William Bremer estate was intestate and that the status of Carl and Vera Worley, as heirs of such estate, has been sufficiently established, yet it does not follow from the fact that they are heirs of William Bremer that they are in fact creditors of the bankrupt or “parties in interest” within the meaning of section 14 of the Bankruptcy Act as amended (11 USCA § 32).

While there is evidence to support at least one of the specifications of objections, the court feels constrained to overrule the objections, for the reason that it nowhere appears that the persons objecting are “parties in interest” within the meaning of the Bankruptcy Act. Strangers to the proceeding cannot be heard to object. In re Walsh (C. C. A.) 256 F. 653.

An order may be presented overruling objections and allowing bankrupt’s petition for discharge.


author: WELSH, District Judge.

text:
    UNITED STATES ex rel. FARIA v. GEESEN et al.
    Civ. No. 5151.
    District Court, N. D. California, N. D.
    April 24, 1945.
    N. Lindsay South, of Fresno, Cal., for petitioner.
    Frank J. Hennessy, U. S. Atty., of San Francisco, Cal., and Emmet J. Seawell, Asst. U. S. Atty., of Sacramento, Cal., for respondent, Oscar Abbott, Brigadier General, U. S. Army.
   WELSH, District Judge.

Frances Faria, mother of Joe Faria, filed a petition for his release from Camp Beale, a United States Army Camp located near Marysville, Yuba County, California. She claims that he is unlawfully detained because of his induction by Local Board No. 117 of Madera County, California, whereas he was regularly engaged in essential farm work and entitled to be classified in Class II-C.

The Commanding Officer at Camp Beale filed a return to an order to show cause annexed to which was the case record of said local draft board.

This Court reviewed the statutes and authorities in an opinion rendered March 27, 1945 in a quite similar case, United States ex rel. Alves v. Geesen, D.C., 59 F.Supp. 726.

Counsel for petitioner attempts to distinguish this case from that on the point that the United States Department of Agriculture War Board for Madera County recommended in favor of deferment herein, whereas it recommended against deferment therein. This necessitates an analysis of the relationship of War Boards to Local Selective Service Boards.

Form C-122 (revised 6/1/44) used by such boards in such cases is included in respondent’s Exhibit “A” herein. It is directed “To: Local U. S. D. A. War Board from Local Board No. 117, Madera County, California.” • Some of the mimeographed portions thereof read: “Pursuant to provisions of Local Board Memorandum No. 164, this local board submits the following information * * * intended to assist you in making your investigation and recommendation of the case * * * 17. The War Board (does) (does not) recommend deferment of the registrant.”

It will be noted that the words “recommendation” and “recommend” are used with reference to the function of the War Board. These words have been judicially defined.

Thus, where the word “recommendation” was used in an Idaho statute it was held that it did not mean that any person so recommended (that is favorably presented) by the State Horticultural Association must be appointed. Ingard v. Barker, 27 Idaho 124, 147 P. 293, 297.

Similarly, where a New York statute provided for the filing of a certificate by the chairman of a county committee, it was held that ithe Mayor was not required to appoint as commissioner a person so recommended by the chairman. Kane v. Gaynor, 144 App.Div. 196, 129 N.Y.S. 280, 285.

Here in California when Section 1734b of the Political Code provided that on the recommendation of the County Superintendent of Schools and the Supervisor in whose supervisorial district the district to be annexed was located, no school district should be annexed without the recommendation of such Superintendent and such Supervisor, it was held that this did not place the power of annexation in the hands of officials having no legislative authority. The Court said with reference to the word “recommendation”: “Its significance is a mere suggestion as to the desirability of a certain course of aotion to be pursued by the board.” People v. San Bernardino High School District, 62 Cal.App. 67, 216 P. 959, 960.

The relationship of Local Boards to War Boards is further indicated by Local Board Memorandum No. 164, as amended April 5, 1944, which provides:

“1. Use of War Boards and Information in Their Possession. — Local Boards should utilize the services of the United States Department of Agriculture War Boards in securing necessary current information as to the agricultural activities of registrants who are in or are being considered for classification into Class II-C.- Information in the files of the County War Boards also is available ito Local Boards and should be used.

“2. War Boards may Request Deferments in Certain Cases. — The County War Board may file a request for deferment of a registrant whom the War Board considers necessary to and regularly engaged in an agricultural occupation or endeavor essential to the war effort. Such requests should be supported with full information concerning the registrant’s activities.

“3. War Board may Appeal from Certain Local Board Decisions. — The County War Board may appeal from Local Board decisions denying registrants classification in Class II-C in cases in which the War Board has filed request for deferment.”

The use of the words “should utilize the services” in the first paragraph above quoted shows that it is not mandatory upon local boards even to deal with the War Boards. If it had been intended that the use of such services be indispensable the word “must” instead of “should” would have been used.

The provision in the second paragraph for filing a request for deferment by the County War Board shows that such War Board may initiate proceedings for deferment. The fact that merely a request is provided for necessarily implies that a request may or may not be granted. This, too, emphasizes that the function of the County War Board is not plenary.

Paragraph 3 stating that the County War Board may appeal from Local Board decisions, also shows-that the Local Board is not bound to grant requests of the County Board. If Local Boards were obligated to grant such requests, there would be no occasion for an appeal.

Therefore, while there is the distinction between the present case and that of Alves v. Geesen, supra, that the War Board recommended in favor of deferment in the instant case and against it in the earlier one, still the petitioner herein is not entitled to be discharged from the Army. The recommendation of the War Board is purely advisory, and not binding, on the Local Selective Service Board.

Responsibility for decisions is vested in the first instance in the Local Board, and thereafter in the Appeal Board. Inasmuch as both of the administrative bodies decided that the registrant was not entitled to deferment, the authorities cited in Alves v. Geesen, supra, are determinative.

Besides the decisions cited therein, we refer to the following: “The discretion to determine whether certain classes of registrants should be exempted or deferred is reposed by the Act in the President and the boards or agencies which he is further authorized to create for the purpose of administering the Act.” United States v. Grieme, 3 Cir., 128 F.2d 811, 815. The County War Board is not such a board or agency.

It is permissible for a Local Board to obtain an independent report and investigation from a local welfare agency. United States v. Kowal, D.C., 45 F.Supp. 301, 302. A recommendation of a USD A County War Board is in the nature of such a report.

“The determinations of the local boards are final unless the selectee’s rights were invaded. It is not the province of this court to review the evidence before the local board but only to review the case record to determine whether or not there was sufficient evidence before the board to substantiate its findings.” United States ex rel. Errichetti v. Baird, D.C., 39 F.Supp. 388, 391. This Court finds that the findings of the local board of Madera County were substantiated.

“Upon a writ of habeas corpus the court may not act as an appellate body to substitute its judgment for that of the executive agencies named in the Selective Training and Service Act [50 U.S.C.A. Appendix, § 301 et seq.] It remains for the court in such a proceeding but to determine whether a full and fair hearing had been accorded the subject of the writ and whether the decision, into which inquiry is directed, was arbitrary and capricious without basis to support it.” Micheli v. Paullin, D.C., 45 F.Supp. 687, 689. It is determined 'that a full and fair hearing was accorded the registrant herein, and that the decisions of the Local Board and the Appeal Board were not arbitrary and capricious, or without basis to support ■them.

It is therefore ordered that the petition for writ of habeas corpus be, and the same is hereby denied; and it is hereby further ordered that the restraining order heretofore issued herein restraining the Commanding Officer of the United States Army, or whoever might have the custody of the body of said Joe Faria from moving said Joe Faria out of the jurisdiction of the above-entitled Court pending the hearing and determination of said petition be, and the same is hereby dissolved and rendered of no further force or effect.


author: RUSSELL, District Judge.

text:
    MATTHEWS et al. v. KOOLVENT METAL AWNING CO.
    C. A. No. 2707.
    District Court, N. D. Georgia, Atlanta Division.
    Feb. 21, 1945.
    Moise, Post & Gardner, of Atlanta, Ga., for plaintiffs.
    Robert P. McLarty, of Atlanta, Ga., for defendant.
   RUSSELL, District Judge.

Predicating their suit upon United States Letters Patent 2,069,893, and reissue thereof, No. 21,053, plaintiffs seek to enjoin the defendant from infringing such letters patent by making, using and selling awnings embodying the patented inventions, and for an accounting for profits and damages. The plaintiff, Albert T. Matthews, is the alleged inventor, and the plaintiff, Thornton G. Graham, is the owner of a one-half interest in the patent.

The defenses are a denial of the allegations of infringement, and assertion of the invalidity of the patent on three grounds: First, that Matthews is not the real inventor; second, that Matthews put his invention into public use more than two years before he filed his application for patent; and third, that Matthews exercised no inventive faculty but merely mechanical skill in producing the awning structure in view of the art as shown by patent to Stilwell of June 21, 1896, No. 564,413, and patent to Schwartzberg dated January 19, 1926, No. 1,570,089.

The patent in suit relates to ventilated awnings which are said to be a great improvement over previous types of canvas or solid awnings, in that in addition to furnishing shade, it provides a structure which permits the passage of air through the awning preventing the entrapment of heat, and also prevents the admission of rain except in very severe storms; and further, affords means for permitting the rain to drain longitudinally down the outer surface without going through the awning. The general nature of the construction of the awning is that of two rows of spaced slats or strips in staggered relationship whereby the open spaces between the slats of one row are covered by the slats or strips in the other row. The upper row of slats are attached to the top of battens or cross-members, and those of the lower row are attached to the bottom of such battens. Both the upper and lower rows are grooved so as to provide for the discharge of rain water, and rain falling between the upper slats is caught and discharged by the grooves on the lower slats.

The defendant is sued for infringement of the claims 3, 4, 5, 9 and 10 of the reissue patent.

Defendant’s claim of no infringement is predicated upon what is contended to be a marked difference in construction and functional performance of the awnings manufactured by it. In the first place, instead of being constructed of wood, defendant’s awning is constructed of metal, and its roof surface is composed of the lower row of spaced metal plates made with upstanding flanges, to form panels, with a corresponding series of upper plates which are provided with depending flanges extending from their edges, and in the construction of defendant’s awning these upstanding flanges and depending flanges pass each other, but are so placed as that the flanges do not touch but provide a space for the circulation of some warm air around the flanges in a sidewise “s” shape, and also provides a “chimney” by which the heated air passes upward and along the panel and vent formed by the upper and lower slats, rising to the top of the awning and being there dispersed above the window.

Both the awning covered by the patent and the defendant’s structure have triangular ends. The ends of the patented structure are made in the same manner as, the top or roof, while the claimed infringing structure is made by sheets of metal which are placed at less than right angle to the building and thus so arranged as to prevent the entry of sun rays or water.

The defendant has failed to establish the invalidity of the Matthews patent. While I have some doubt that the awning structure rises to the height of an invention, though it is undoubtedly novel and useful, still the doubt is not sufficient to overcome the presumption of patentability arising from the issuance of the patent. In this case, while the defendant discusses at length references cited by the Examiner as anticipations, the court does not have the benefit of these in evidence for consideration. However, it is stated without dispute by the plaintiffs that these references were considered by Judge Wilson of the United States District Court at Fort Worth, Texas, in a suit where the invalidity of this same patent for want of invention was asserted, and he upheld the validity of the patent. This validity was also upheld in a proceeding before Judge At-well in the United States District Court at Dallas, Texas. The two references plead as anticipation in this case do not overcome the presumption of patentability. Stilwell, No. 564,413, shows merely the old style shuttered window blinds with triangular slatted end structures, and hinged upon a frame which would permit the ends of the awning to be flattened against the wall when it was desired to have the shutters in the window in their usual shape. These shutters would not permit the dissipation of heat under the awning if the shutters were closed, or prevent the entry of direct sunlight and water if so opened as to permit the dissipation of heat. Schwartzberg, No. 1,570,089, relates to an improvement in ventilators. While this shows two rows of staggered slats, in view of the nature thereof it is not deemed sufficient to anticipate the Matthews awning structure.

The defendant fails to show that Matthews was not the inventor of the structure for which he received a patent. It is disclosed by the evidence that the structure was Matthews idea and that he merely employed Turner as a wood worker to build the awning which he, Matthews, had conceived.

The defendant likewise fails to establish the invalidity of the patent upon the ground that the awning had been put into public use more than two years before Matthews filed his application for a patent. Undoubtedly the evidence shows, that Matthews did have an awning constructed and placed upon one window of his home. However, the testimony is uncontradicted, and it appears reasonable, that Matthews was experimenting and observing the operation of the awning with a view to the necessity for improvement of the manner in which it would serve the purpose intended. He testifies that this was the purpose in placing the awning upon the window of his home on or about September 8, 1930. The application for the patent was filed December 7, 1932. The period of September 8th to December 7th is not an unreasonable period for experimentation under the circumstances here disclosed. That the awning was so used as an experiment and test is further borne out by the fact that it was not until August of 1932 that Matthews had a sufficient number of awnings of the same type made for each of the windows of his home.

The defendant has failed to establish the invalidity of the patent.

In determining the question of infringement it is necessary to bear in mind the nature and scope of the awning structure patented by Matthews. While the defendant has failed to show the invalidity of the patent, it is manifest from the nature of the invention that the claims of the patent are not entitled to a broad construction. Seeking to summarize, the claims 3, 4 and 5 of the application relate to the use of staggered slats in an upper and lower series which are fastened in right angular relation with two spaced end rails so that the upper and lower slats form horizontal air passages and longitudinal drains, together with means for mounting the awning so that rain water will discharge along its lower edge. Claim 4 requires the awning to be inclined downwardly to permit drainage far removed from the wall, and claim 5 calls for trough shaped slats in the lower series being fastened in concave positions with end rails. It appears that the means for mounting as claimed is certainly not invention as it embraces merely a method of mounting which has been always used to hold in place any series of slats, such as on shutters or gates. It really means no more than battens. Nor does any invention inhere in providing longitudinal drains, nor that the slats in and of themselves would prevent the entry of direct sunlight. Plainly, the claim of invention can extend no further than the arrangement of the slats, one on the upper side of a batten and one on the lower, and so spaced that the width of the batten forms a horizontal air passage, with the added feature that the slats are grooved so as to carry water better than a smooth plank would. As to the spacing of the slats, the inventor himself states that they should be approximately one-third of their width spaced, and he acknowledged that the arrangement would not keep out all direct rays of sunlight. As these claims are thus restricted, the defendant’s structure does not infringe.

In view of the expressed nature and purpose of the plaintiffs’ slats or strips, the covers and pans of the defendant’s structure are not the equivalent of such slats, or strips. While each have the function to drain water, and to permit the circulation of air, the method by which this is obtained differs between the two. Thus, if the plaintiffs’ structure was so constructed' as to perform the functions of the defendant’s structure, it would not be an awning,, but a roof or deck.

Defendant constructs its awning under a license from Houseman, No. 20975. The-application for this patent ran into interference in the patent office, No. 72322, and' resulted in plaintiff being granted claims 3, 4 and 5 over Houseman. Plaintiff relies greatly upon this grant as a determination that the defendant’s structure does infringe the Matthews patent. However, I' am unable to follow this reasoning in view of the fact that the claims which were found to be those of the Matthews patent did not relate to covers and pans but to. slats, and the very fact that the patent office after citing interference on a claim. reading “slats” granted the patent to Houseman for claims reading “plates” and plates with upstanding and with depending flanges, is considered to support the finding I make from the evidence and examination of the models, that the covers and pans are not the equivalent of the Matthews slats. Furthermore, in these circumstances, the fact that defendant has a license or grant from Houseman is not controlling.

Regardless of the correct rule, as to whether the grant of a subsequent patent negatives the idea of infringement in general, certainly where an interference is cited, and certain claims are ruled to be interference, but other claims contained in the application are not so considered or determined, a strong presumption results that the claims allowed in the subsequent patent do not infringe the claims of the prior patent.

Matthews claims slats supported by battens, with the upper series of slats above the batten, and the lower placed under the batten. In defendant’s structure, the pans are placed upon two steel cross-members, and the covers are attached to the pans. While the drainage feature is present in both structures, the means of drainage is different, and certainly a claim which calls for the idea of water draining down an inclined surface possesses no novelty.

What has been said disposes of the contention of the infringement of claims 9 and 10 of the Matthews patent so far as relates to the composition and construction of the roof surface. As to that portion of these claims asserted by the plaintiffs as valid and infringed which relate to the means of supporting the roof or end structures of the awning, this describes only a well-known and commonly used means for supporting or holding in place any structure extending from a wall, or without ground support. Furthermore, the flanged end structure of the defendant’s awning is not in any way similar to the end structure of the Matthews awning.

I find that the defendant’s structure does not infringe claims 3, 4, 5, 9 and 10 of the Matthews Letters Patent.

Conclusions of Law

This' court has jurisdiction of the parties and subj ect matter.

The defendant is entitled to judgment in its favor, together with costs, which may be presented upon notice.


author: BARD, District Judge.

text:
    MOSER v. STANDARD OIL CO. OF NEW JERSEY.
    No. 13.
    District Court, E. D. Pennsylvania.
    June 23, 1944.
    ■ Samuel J. Stark (of Freedman & Gold-stein), all of Philadelphia, Pa., for plaintiff.
    T. E. Byrne, Jr. (of Krusen, Evans & Shaw), all of Philadelphia, Pa., for defendant.
   BARD, District Judge.

This is an action in Admiralty by a seaman to recover $71.03, the value of his clothing and personal effects. I make the following special findings of fact:

1. On September 1, 1942, libellant was hired by respondent as an able bodied seaman for a voyage on the S. S. “Esso Bayonne”.

2. The S. S. “Esso Bayonne”, which was owned by the respondent, was at that time chartered to the War Shipping Administration and was being operated by respondent as its agent.

3. Libellant reported aboard to the mate of the vessel and was accepted for duty and then given shore leave until midnight.

4. Libellant left his clothing and personal effects aboard the vessel.

5. Libellant did not return to the ship until the following night, when he discovered that it had sailed.

6. Libellant demanded of respondent the return of his clothing and personal effects, but respondent has not returned them.

7. The value of libellant’s clothing and personal effects was $71.03.

Discussion.

Libellant’s testimony was that he was hired in Philadelphia by Atlantic Refining Company, agent for respondent, as an able bodied seaman, to make a voyage on the S. S. “Esso Bayonne”. He received a “personnel pass”, went to the ship and reported to the mate. The mate accepted him for duty and ordered him to report for duty at midnight to go on the 12 to 4 watch. He was shown a bunk and given a locker by another seaman. He brought aboard his clothing and personal effects, which he placed on the bunk and in the locker, and then went ashore. He failed to report back at midnight as ordered, but returned the next night after the ship had sailed. He went to the office and was advised to examine the baggage room for his belongings. When he could not locate them there, he wrote to the respondent advising it of his claim. Information as to the claim did not reach the vessel for several months, at which time a search was made for libellant’s belongings, but they were not found.

Respondent was the owner of the S.S. “Esso Bayonne”, which it had chartered to the War Shipping Administration. At the time it was operating the ship as agent for the War Shipping Administration.

Respondent claims that even if libellant’s testimony is accepted, he has failed to show any basis for recovery against it. Libellant concedes that respondent’s duty with respect to his belongings is not absolute, but urges that, under the authorities, a prima facie case is made out when he shows that his belongings were lawfully placed aboard ship and were never returned to him, and the respondent then has the burden of going forward with the evidence to explain their loss.

The few authorities on the subject support libellant’s contention. In Old Point Fish Co. Inc. v. Haywood, 4 Cir., 109 F.2d 703, two members of the crew of a vessel were allowed claims for clothing and bedding lost when left aboard the vessel when it was disabled and towed to port, and they were told to await orders for the continuation of the voyage. Said the Circuit Court of Appeals for the Fourth Circuit at page 707: “As to the allowance of $50 and $10 respectively to two members of the crew for loss of clothing and bedding, the evidence is meagre indeed. It appears, however, that this personal property was left upon the vessel when the owners left it expecting to return to complete the voyage, and was not thereafter recovered by them. In the absence of any evidence to explain the loss we think the allowance should not be disturbed. The Washington, D.C., 296 F. 158, 166.”

In The Washington, D.C., 296 F. 158, the libellant was awarded a lien for equipment not returned to him when the ship was libeled and sold. Said the Court at page 166: “The commissioner has found that Chapas has a lien (prior to any lien for supplies furnished) for goods belonging to him which were lost. The ship was libeled, he demanded his goods, they could not be or were not found, and he has been damaged in an amount equal to their value. They may have been sold with the ship. At any rate, they belonged to Chapas, were lawfully aboard the boat, have disappeared without fault on his part, and under circumstances which amount to a tort.”

A similar result was reached in Smith v. The Utica, Fed.Cas. No. 13,123, in which a seaman failed to return to the ship when ordered. Said the Court: “And it appearing to the court that the libellant put his chest or trunk on board the said vessel at the time of the contract, containing wearing apparel and other articles of value, and that the same has not been returned in full to him, but that portions of the contents thereof have been purloined or lost on board the said vessel; and it being considered by the court that the libellant has not forfeited the said property, and that the said ship is liable to him in this action for the value thereof; * * * it is therefore ordered and adjudged that the libellant recover in this case the value of the articles left by him on board said ship, and not redelivered and restored to him on her return to this port.”

Since respondent was unable to locate libellant’s belongings or to explain their loss, I am of the opinion that he is entitled to their value.

There is no merit to the respondent’s further contention that because it was operating the ship as agent for the War Shipping Administration it is not liable for its failure to return libellant’s belongings or to explain their loss. See Brady v. Roosevelt S.S. Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471.

I make the following conclusions of law :

1. Where a member of a crew who fails to make a voyage proves that his belongings were aboard ship when she sailed and were not returned to him, he may recover their value from the operator of the ship who fails to explain their loss.

2. Judgment is entered in favor of the libellant and against the respondent in the sum of $71.03.


text:
    McFADDEN v. SHORE et al.
    No. 3932.
    District Court, E. D. Pennsylvania.
    March 28, 1945.

      Myer Friedman, of Philadelphia, Pa., for complainant.
    Joseph Skale, of Philadelphia, Pa., for defendants.
   BARD, District Judge.

This is before the court on a motion to dismiss the complaint. Plaintiff instituted an action against defendants. to recover damages under the provisions of Section 205(e) of the Emergency Price Control Act of 1942, 56 Stat. 34, 50 U.S.C.A.Appendix § 925(e), for charging rents in excess of the maximum fixed by Maximum Rent Regulation No. 28, redesignated Rent Regulation for Housing (8 F.R. 7322 § 1388.1181). Motion has been made under Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following Section 723c, (1) to dismiss the action against defendant Harry Shore because the complaint fails to state a claim against him; and (2) to dismiss the action or, in lieu thereof, to quash the return of service of summons as to Jacob Shore.

The facts, insofar as they are here relevant, are as follows:

Defendant Jacob Shore, by his authorized agent, Harry Shore, executed a written lease of premises 2032 N. 29th Street, Philadelphia, Pennsylvania, to plaintiff. Jacob Shore received monthly rentals thereunder which plaintiff alleges are in excess of the maximum rentals fixed by the Office of Price Administration, and, to recover damages therefor, plaintiff instituted this action under Section 205(e) of the Act.

The United States Marshal made service of summons upon the defendant by leaving attested copies thereof at 2518 South 7th Street, Philadelphia, Pennsylvania, with an adult member of the family, Eva Shore, who is the daughter of Harry Shore and a sister of Jacob Shore. Jacob Shore is and was at all times pertinent hereto a member of the armed forces of the United States. Prior to joining the United States Navy Jacob Shore lived with his family at the address where service was made.

Rule 4(d) (1) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, authorizes service of summons upon an individual to be made, inter alia, “* * * by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein * *

Defendants contend that service of process must be made upon Jacob Shore in Charleston, South Carolina, where he is now stationed by the Navy; that his “dwelling house or usual place of abode” for purpose of service no longer is at his Philadelphia address but is in Charleston.

The question was squarely raised in Ruth & Clark, Inc. v. Emery, 1943, 233 Iowa 1234, 11 N.W.2d 397, where service was made under a similar statute upon the wife of the defendant at their home although the defendant had previously been inducted into the armed forces. And it was there held that service was proper as having been made at defendant’s usual place of residence.

In an earlier case, Eckman v. Grear, 14 N.J.Misc. 807, 187 A. 556, the defendant enlisted in the United States Army and was sent to the Hawaiian Islands where he hoped to qualify for admission to West Point Military Academy. He sold all his personal belongings and expressed the intention to remain permanently in the Army. In setting aside the service of summons made at defendant’s former home the court held that “usual place of abode” is the place where defendant is actually living at the time of service; that defendant had permanently abandoned the home of his parents; and that defendant’s “usual place of abode” was now at his Army station, Hawaii. However, there was no animo revertendi on the part of the defendant as was present in the Emery case, which is the distinguishing factor in the cases. The holding that the “usual place of abode” is the place where the defendant is living at the time of service is contrary to the weight of authority holding that where temporary residence is established away from the normal or usual residence the “place of abode” is the usual residence regardless of the fact that defendant may be occupying the temporary residence at the time of service. Rovinski v. Rowe, 6 Cir.1942, 131 F.2d 687; Skidmore v. Greene, S.D.N.Y.1940, 33 F.Supp. 529.

The Soldiers’ and Sailors’ Civil Relief Act of 1940, 54 Stat. 1178, 50 U.S.C.A. Appendix § 510 et seq., affords protection for a litigant in military service after an action has begun, but in no way affects the method of service prescribed in Rule 4(d) (1) of the Federal Rules of Civil Procedure. Robinson v. Five One Five Associates Corp., 1943, 180 Misc. 906, 45 N.Y.S.2d 20.

If Jacob Shore had been a civilian, the service of process undoubtedly would have been proper. The rule appears to be the same when absence from the usual) place of residence is caused by military service, provided the present whereabouts of the defendant are known so that he would reasonably be expected to receive actual notice of the action. Robinson v. Five One Five Associates Corp., supra.

Section 201 of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 54 Stat. 1181, 50 U.S.C.A.Appendix § 521, provides that' a court, of its own motion or upon application of a party in military service or some person on his behalf, may, in its discretion, stay any proceeding in which such person is a party unless it appears that that person will not be prejudiced by reason of his military service. This action is brought to recover a penalty provided by statute upon a lease executed by the agent of Jacob Shore during his absence in military service. The act must be liberally construed to fully protect those who have entered the armed forces to protect this nation. Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587, rehearing denied 320 U.S. 809, 64 S.Ct. 26, 88 L.Ed. 489. Under Sections 201 and 204 of the Act, I therefore order that the proceedings be stayed as against Jacob Shore during the period of his military service and for three months thereafter.

As to the motion to dismiss the action against Harry Shore, agent of Jacob Shore, the contention is made that the complaint fails to state a cause of action in that Harry Shore was the agent of a principal disclosed and known to plaintiff. Section 13(a) (8) of Maximum Rent Regulation No. 28, redesignated Rent Regulation for Housing (8 F.R. 7328), defines a “landlord” as an owner, lessor, sublessor, assignee or other person receiving or entitled to receive rent for the use or occupancy of any housing accommodation; or any agent of any of the foregoing. (Italics supplied).

Harry Shore, as agent of the owner and as the person entitled to receive the rents is clearly a “landlord” as defined in the act and may be subjected to the penalties provided for violation of the act and the Rent Regulation. Since the provisions of the Emergency Price Control Act and Rent Regulation for Housing promulgated thereunder are controlling in this proceeding, the motion to dismiss the action against Harry Shore is denied.

The motion to dismiss the action or, in lieu thereof, to quash the return of service of summons as to Jacob Shore is denied, and the motion to dismiss the action against Harry Shore is denied. All proceedings against Jacob Shore are stayed during the period of his military service and for three months thereafter.


author: KNOX, District Judge.

text:
    HUBER v. REBAY.
    District Court, S. D. New York.
    Aug. 29, 1944.

      Silliman, Gay & Behrens, of New York City (Charles H. Lawson and Mack Kreindler, both of New York City, of counsel), for plaintiff.
    Herbert J. De Vareo, of New York City, for defendant.
   KNOX, District Judge.

Defendant here moves for summary judgment, dismissing plaintiff’s first cause of action based upon the publication of an allegedly libelous letter. It is said that the communication containing the libel was written in New York and delivered to its addressee in New Jersey, in November, 1942. In plaintiff’s bill of particulars, she has advanced the date of publication either to December, 1941, or January, 1942. The complaint was filed on October 27, 1943.

Defendant, an alien, is the Curator of the Solomon R. Guggenheim Foundation, and has an office and an apartment on West 57th Street, in this city. Her residence is in Connecticut where she owns a substantial estate. During the greater part of the period from publication of the libel until the present, she has visited her place of business. The exceptions are these: from October 15, 1942 until December 16, 1942, she was confined as an enemy alien in Boston; from December 16, 1942 until March 17, 1943, she was detained at her Connecticut home, and could depart therefrom only with the permission of the Federal authorities; from that date to the present, she has been about her regular duties, coming into New York three or four times a week. During the period of restraint, she was allowed to take several trips to places without this district.

The basis for defendant’s motion is that the New York statute of limitations has run. Generally, the statute of limitations of the forum is the rule to be applied. Restatement of the Law, Conflict of Laws, Nos. 602, 603. The New York statute is one year for actions of libel. N. Y. Civil Practice Act, § 51(3).

Since the libel was published in New Jersey and the cause of action arose there, Cannon v. Time, Inc., D.C., 39 F.Supp. 660, and since the plaintiff is a resident of New Jersey, and the defendant of Connecticut, the question is essentially one in conflict of laws. For guidance in reaching a decision, resort must be had to the laws of New York. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477.

The New York statute is this: “Where a cause, of action arises outside of this state, an action cannot be brought in a court of this state to enforce such cause of action after the expiration of the time limited by the laws either of this state or of the state or country where the, cause of action arose, for bringing an action upon such cause of action, except that where the cause of action originally accrued in favor of a resident of this state, the time limited by the laws of this state shall apply.” N. Y. Civil Practice Act, § 13, as amended in 1943.

From this it is seen that the action is barred whenever the shorter period has run. The present statute is a restatement of decisions interpreting the section as earlier written. Law Revision Commission Report, Leg.Doc.(1943) No. 65F; 2 Gilbert-Bliss, Civil Practice Act of New York, No. 13; Parson, New York Civil Practice Act, No. 13; 2 Carmody's New York Practice, No. 488.

A general rule of New York is that in a suit between nonresidents on a cause of action arising without the State, the nonresident defendant cannot plead the New York statute of limitations if the statute of limitations has not run where the cause of action arose. Meyers v. Credit Lyonnais, 259 N.Y. 399, 182 N.E. 61, 83 A.L.R. 268. But in this rule, as in the other rules concerning statutes of limitation, residence is not legal residence, but factual presence. To be considered a resident within the meaning of these laws, though legally a resident of another State, defendant must come into the State with such regularity and notoriety that service can be made upon the defendant with reasonable diligence. Mack v. Mendels, 249 N.Y. 356, 164 N.E. 248; McConnell v. Caribbean Petroleum Co., 278 N.Y. 189, 15 N.E.2d 573; Dougherty v. Seigle, 181 Misc. 674, 42 N.Y.S.2d 646. Tolling of the statute of limitations is likewise dependent upon the defendant’s absence from the State for periods of more than four months. N. Y. Civil Practice Act, § 19.

The facts in this case are that from February 1, 1942 until October 15, 1942, and from March 17, 1943 until October 27, 1943, defendant was regularly attending her place of business in New York. She was in her office in Carnegie Hall and in her apartment nearby three or four times a week. She could have been found by one searching for her with due diligence. Allowing for the period tolled by her restraint, defendant has been present in this city and amenable to 'process for fifteen months. This is three months more than the statute of limitations. The statute of limitations of New York has run, and the first cause of action is barred.

Motion granted.


author: WYCHE, District Judge

text:
    WOLTER v. SAFEWAY STORES, Inc.
    Civ. No. 22694.
    District Court of the United States for the District of Columbia.
    April 20, 1945.

      F. Regis Noel and Russell Hardy, both of Washington, D. C., for plaintiff.
    Henry I. Quinn, of Washington, D. G, for defendant.
   WYCHE, District Judge

(sitting by designation) .

This is an action for damages for malicious criminal prosecution. At the close of the testimony for the plaintiff, I granted defendant’s motion for a directed verdict. Rule 50(a), Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The plaintiff now moves for a new trial on the ground that the court erred “in stating the law in force in the District of Columbia” and in stating the facts in evidence in directing a verdict for the defendant.

The relevant testimony submitted on behalf of the plaintiff proves, in substance, that shortly after 6:30 o’clock p. m., (defendant’s closing time) on the 24th day of June, 1943, the plaintiff came to defendant’s store to purchase some milk, and found the door of the store closed and locked. As one of the employees, Mrs. Olive M. Schaeffer, a checker, opened the door to let out some customers, who were in the store at the time the door was locked, the plaintiff tried to enter the store, and Mrs. Schaeffer told him the store was closed, but the plaintiff tried to force his way in when Mrs. Schaeffer prevented him from doing so by closing and locking the door. When Mrs. Schaeffer refused to let him in the store, the plaintiff shook his fist at her in a threatening manner, and said to her, “I will get you for this”, or words to that effect. However, the plaintiff himself testified that when Mrs. Schaeffer refused to let him in the store he banged on the door, and she jeered and laughed at him, and he shook his fist at her, demonstrating a threatening manner on the witness-stand. But a police officer, sworn in behalf of the plaintiff, testified that the plaintiff told him that he was angry when he could not get into the store, and that he had said to Mrs. Schaeffer, “I will get you for this”, but that he did not intend to do her any bodily harm, that he meant to go to the office about it and “get her down there”.

While Mrs. Schaeffer was sitting on her porch, behind some shrubbery on Sunday night, June 27, 1943, three days after the threats by the plaintiff, some man threw some chemical substance into her face, and as he did so, said, “I told you I would get you” in the same guttural tone of voice as had been used by the plaintiff when he made the threats at the defendant’s store. Her glasses protected her eyes, but her face was badly burned, and she could make no further identification of the man who made the assault.

The following morning, on the 28th day of June, 1943, upon the affidavit of Mrs. Schaeffer, a warrant was issued for the arrest of the plaintiff. The names of Olive M. Schaeffer, J. W. Brewer and Anna Ball, were indorsed on the back of the warrant as witnesses. J. W. Brewer was manager of defendant’s store, and Anna Ball was a checker for the defendant. The warrant appears to have been served by John A. Stewart, M. P., at 8:30 p. m. on June 28, 1943, at which time the plaintiff was taken to Police Station, and released shortly thereafter upon a $100 cash bond. On the 29th day of June, 1943, upon the oath of Mrs. Schaeffer, the District Attorney filed an information charging the plaintiff with an assault upon her. The names of Olive M. Schaeffer, J. W. Brewer, Anna Ball and John A. Stewart, M. P., were indorsed on the back of the information as witnesses. The case was set for trial on June 29, 1943, and continued until July 19, 1943, and on that date Mrs. Schaeffer, J. W. Brewer and Anna Ball were notified to appear at the District Attorney’s office as witnesses for the prosecution in the trial of the assault charge. These witnesses related the foregoing facts to the District Attorney, each witness telling what he knew about the facts in the case, after which the District Attorney concluded to nol-pros the assault charge against the plaintiff because Mrs. Schaeffer could not positively identify the plaintiff as the man who threw the chemical substance into her face, and then advised Mrs. Schaeffer that he would file on her oath an information against the plaintiff for threats. The District Attorney then entered the following indorsement on the back of the information charging assault: “Nolle Pros: This case lacks sufficient evidence. There is a threats charge to be filed. July 19, 1943 JosF. Lawless Asst. U. S. Atty.”

On the same day, the 19th day of July, 1943, on the oath of Olive M. Schaeffer, the District Attorney filed an information charging the plaintiff with unlawfully making threats against Mrs. Schaeffer. The names of Olive M. Schaeffer, Lucy Johnson, Ernest P. Jefferson, M. P., Anna M. Ball and J. W. Brewer, were indorsed on the back of the information as witnesses. When this information was filed the plaintiff was released on his own recognizance in the custody of an attorney appointed for him by the court. The case duly came on for trial, and the defendant was acquitted by a jury.

To support an action for malicious criminal prosecution, the plaintiff must allege and prove, (1) the commencement or continuance of a criminal prosecution against the plaintiff; (2) that the defendant was the prosecutor or instigator of the prosecution; (3) that the prosecution was dismissed, or terminated in the plaintiff’s acquittal; (4) that the charge preferred against the plaintiff was unfounded, and that it was made without reasonable or probable cause; (5) that the defendant in making or instigating the prosecution was actuated by malice; (6) that damages, conforming to legal standards, resulted to the plaintiff. The failure to prove any one of the foregoing essentials is fatal. Wheeler v. Nesbitt, 24 How. 544, 65 U.S. 544, 16 L.Ed. 765; Chapman v. Anderson, 55 App.D.C. 165, 3 F.2d 336; 38 Corpus Juris 336.

If the foregoing requisites exist therefor, an action for malicious prosecution will lie against a corporation, without showing that such acts of its officers or agents were ordered by it, or that such authority was expressly conferred upon them, but where the agent or servant instituting a malicious prosecution is not at the time acting within the scope of his authority, or in the course of his employment, the corporation will not be liable.

The record discloses that the prosecution for assault was instituted upon the oath of Mrs. Schaeffer, a checker in the defendant’s store, and it may be assumed from the record, that Mrs. Schaeffer reported the assault to the Police Department on the night of the assault, and that the prosecution was instituted the following morning upon her complaint. Mrs. Schaeffer, the complaining witness in the prosecution for the assault, was a checker for the defendant corporation, whose duty it was to check out the customers, and who had no other authority than to make the sale, ring the sale on the cash register, and make change. When Mrs. Schaeffer made complaint about the assault upon her by the plaintiff, she was not acting within the scope of her authority, or in the course of her employment as a servant of the defendant corporation. She was acting in her own behalf, concerning a personal assault upon her at her residence, at a time when she was not in the performance of any duties as a servant of the defendant corporation.

When the witnesses, Mrs. Schaeffer, Mrs. Ball and Mr. Brewer, appeared to testify upon the assault charge, they told the District Attorney what they knew about the case. Because Mrs. Schaeffer could not positively identify the plaintiff as the man who made the assault upon her, the District Attorney nol-prossed the case for assault, and advised Mrs. Schaeffer to enter prosecution for threats, which was done upon her oath. Mrs. Schaeffer and J. W. Brewer testified as witnesses for the prosecution in the threats case.

Mere passive knowledge, or acquiescence or consent in the acts of another person, is not sufficient to impose liability for malicious prosecution. There must be some affirmative action that the defendant instituted or caused the prosecution to be instituted. No liability attaches solely by reason of testifying as a witness for the prosecution, or by reason of the fact that one’s name is indorsed as a witness on an indictment or information. There is no testimony in this case to prove that any servant or agent of the defendant corporation, acting within the scope of his or her authority, or in the course of his or her employment, instituted, or caused to be instituted, or advised, counseled or encouraged, or was instrumental in any way in instituting the prosecutions in this case.

For the foregoing reasons, it is my opinion that the plaintiff has failed to prove that the defendant corporation instituted, or caused to be instituted, the prosecutions for assault, or for threats.

I directed a verdict for the defendant upon the further ground that the plaintiff failed to prove that there was no probable cause for the prosecutions.

Want of reasonable and probable cause is as much an element in the action for a malicious criminal prosecution as the evil motive which prompts the prosecutor to make the accusation; and though the averment is a negative one in its form and character, it is nevertheless a material and essential element of the action, and must be proved by the plaintiff by some affirmative evidence. Wheeler v. Nesbitt, supra.

If there was probable cause for the prosecution, an action will not lie, although the party who procured the indictment was actuated by malice. The want of probable cause for the prosecution cannot be inferred from established malice. Dinsman v. Wilkes, 12 How. 390, 53 U.S. 390, 13 L.Ed. 1036; Spitzer v. Friedlander, 14 App.D.C. 556; Chapman v. Anderson, supra.

Probable cause has been defined to be: A reasonable cause to believe that the plaintiff was guilty, based on facts and circumstances sufficient in themselves to induce such belief in an ordinary person. Spitzer v. Friedlander, supra; Mark v. Rich, 43 App.D.C. 182; Mt. Vernon & Marshall Hall Steamboat Co. v. McKenney, 46 App.D.C. 99, certiorari denied 243 U.S. 655, 37 S.Ct. 480, 61 L.Ed. 948; Ambs v. Atchison, T. & S. F. R. Co., C.C.Mo., 114 F. 317; a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged; or such a state of facts as would lead a man of ordinary caution to believe, or to entertain an honest or strong suspicion that the person is guilty. Stacey v. Emery, 97 U.S. 642, at page 645, 24 L.Ed. 1035; the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. Wheeler v. Nesbitt, supra.

If the existence of facts from which probable cause, or want thereof, is to be determined, is in dispute, or depends upon conflicting testimony, the question is one for the jury, under instructions by the court stating such facts embraced within the record as would constitute probable cause, but if the facts upon the question of probable cause are undisputed or clearly established, the question of probable cause becomes a question of law for the court. Sanders v. Palmer, 2 Cir., 55 F. 217, 220; Crescent City Live Stock Co. v. Butchers’ Union, 120 U.S. 141, at page 149, 7 S.Ct. 472, 30 L.Ed. 614; Stewart v. Sonneborn, 98 U.S. 187, at page 194, 25 L.Ed. 116; Chapman v. Anderson, supra.

Probable cause for a prosecution exists when all the material facts upon the question of probable cause are made known at the time to the prosecuting attorney, and upon them he advises and institutes the prosecution. Mark v. Rich, supra; Chapman v. Anderson, supra. Upon this question it was said by the Court of Appeals of the District of Columbia, in Chapman v. Anderson, supra [55 App.D.C. 165, 3 F.2d 340], “In most instances the courts have held, in malicious prosecution actions brought upon criminal prosecutions, that where the prosecutor stated all the material facts to the attorney charged with the responsibility of determining criminal liability, and he is by the attorney advised to prosecute, that probable cause exists, and the action from (for) malicious prosecution cannot be maintained. The welfare of law-abiding people would receive a severe blow, if it were to become established law that one must be the insurer of the successful outcome of criminal charges preferred.”

All the material facts upon the question of probable cause in the prosecution for threats were made known at the time to the prosecuting .attorney, and upon them he advised the prosecution for threats, and entered an information accordingly.

All the material facts upon the question of probable cause for both prosecutions have been proved by evidence in behalf of the plaintiff. They are clearly established and undisputed, and the only reasonable inference that can be drawn from them is that there was probable cause for the prosecutions of the plaintiff. National Surety Co. v. Page, 4 Cir., 58 F.2d 145. Mrs. Schaeffer, as well as J. W. Brewer, had strong reason to believe that the plaintiff was the man who committed the assault, and they knew that he was the man who made the threats, for which he was prosecuted. The man who made the assault said in a guttural tone of voice like that of the plaintiff, “I told you I would get you”. The assault came shortly after the threats, and there was no evidence that any other person had made threats against Mrs. Schaeffer,' or that any other person had any grievance against her. The facts and circumstances, proved by the plaintiff in the trial of this case, are sufficient in themselves to lead a man of ordinary caution to believe that the plaintiff was guilty of the assault, as well as the threats, for which he was indicted.

For the reasons herein stated, I directed a verdict for the defendant; and, for the same reasons, I now overrule the motion for a new trial.


author: WATSON, District Judge.

text:
    BOWLES, Price Administrator, v. BROOKSIDE DISTILLING PRODUCTS CORPORATION et al.
    No. 1649.
    District Court, M. D. Pennsylvania.
    April 10, 1945.
    Stephen E. Gombar, Acting Dist. Enforcement Atty., of Scranton, Pa., for plaintiff.
    O’Malley, Hill, Harris & Harris and James F. Brady, all of Scranton, Pa., for defendants Brookside Distilling Co. and Joseph M. Gentile.
   WATSON, District Judge.

Chester Bowles, Administrator of the Office of Price Administration, brought this action against the Brookside Distilling Products Corporation, Joseph M. Gentile, Julia Gentile, et al., to recover treble damages for numerous sales of cases of whisky in excess of the maximum prices established therefor by the regulations.

Defendant, Julia Gentile, has moved for dismissal of the complaint as to her, for the reason that the complaint sets forth no fact upon which liability of any nature could be imposed upon her.

Section 205(e) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 925(e), reads as follows: “If any person selling a commodity violates * * *” and proceeds to define the punishment.

Section 302(h) of the above act, 50 U.S.C.A.Appendix, § 942(h), defines “person” as follows: "The term ‘person’ includes an individual, corporation, partnership, association, or any other organized group of persons, or legal successor or representative of any of the foregoing * *

All that is alleged in the complaint as to the connection of Julia Gentile with the Brookside Distilling Products Corporation is the following: “Defendant, Julia Gentile, is a resident of the city of Scranton, county of Lackawanna and state of Pennsylvania, and is the wife of defendant, Joseph M. Gentile, and participated actively in the management and conduct of the affairs and business of defendant, Brook-side Distilling Products Corporation.”

From such allegations it cannot be found that Julia Gentile is a “legal successor or representative” of the defendant corporation.

Neither the fact that Julia Gentile is the wife of the president of the corporation nor the fact that she “participated actively in the management and conduct of the affairs and business of defendant Brookside Distilling Products Corporation” is sufficient for the conclusion that she was at the time the alleged wrongful acts occurred a “legal representative” of the corporation.

Now, April 10, 1945, this action is dismissed as to the defendant, Ju'lia Gentile.


author: HULEN, District Judge.

text:
    McHUGH v. NATIONAL LEAD CO.
    No. 1956.
    District Court, E. D. Missouri, E. D.
    April 18, 1945.

      Harvey B. Cox and George E. Heneghan, both of St. Louis, Mo., for plaintiff.
    Moser, Marsalek & Dearing, and John S. Marsalek, all of St. Louis, Mo., for defendant.
   HULEN, District Judge.

Plaintiff obtained a judgment against defendant, based on a jury verdict. This case is now before the court on defendant’s motion for judgment in accordance with motion for directed verdict. Defendant’s position is that the evidence failed to make a submissible case of negligence.

There is no substantial conflict on the controlling facts. Defendant employed Leonard Construction Company, an independent contractor, to install and erect a sulphur burner tank on its premises in St. Louis County, Missouri. The tank was completed about April 1, 1941. Defendant then started use of the tank. In “two or three weeks” defects developed which necessitated a rebuilding of the tank according to a changed design. Early in the morning of the fourth day of June, plaintiff’s husband, engaged in removing brick work as a laborer and an employee of a sub-contractor who had been employed by Leonard Construction Company, was killed as a result of a gas explosion in the sulphur burner. The case was submitted on the theory that defendant was negligent in failing to designate or mark a certain pipe which led to the sulphur burner as a conveyor of natural gas.

The sulphur burner was cylindrical in shape, approximately thirty feet in height and fifteen feet in diameter. The inner construction was of brick checkerboard baffling. The burner was started by means of a gas burner attached to a gas pipe. The gas burner was inserted through an opening at the bottom of the construction. When the brick work of the burner had become sufficiently heated, the consumption of the sulphur was an automatic operation, furnishing its own heat, so the gas burner was removed, leaving the gas pipe connection exposed, the end about fifteen inches from the outside of the sulphur burner (see Plaintiff’s Exhibit B and Defendant’s Exhibit C). The flow of gas was controlled by a valve near the end of the pipe (see Exhibit C). There was a second valve on the wall some distance from the burner. Sulphur was fed to the burner from the top, passed down over the heated brick construction, was consumed, thereby producing sulphurdioxide, which was piped from the sulphur burner and was finally converted into sulphuric acid. After the burner had been heated and was in operation, hot spots developed near the top of the construction because of a defect in the design of the burner. William Edward Smith was general superintendent of construction and redesigning of the sulphur burner for the Leonard Construction Company. He testified that he had control over all the men engaged in the work. When the defect in the sulphur burner developed, Mr. Smith was still on the job.

After the sulphur burner was started in operation, Smith observed it to see “how it was getting along.” When the hot spots developed, as a result of instructions from Mr. Smith, compressed air was brought to bear on the hot spots for protection and so it could operate until plans could be made to correct the defect. To correct the defect in the sulphur burner, a hole was made in the construction some fifteen feet from the floor so that workmen could enter the burner at that point and start there to remove brick work on the inside of the burner. When entrance was made, the temperature on the inside of the burner was found too high to permit workmen to remain inside the burner for any length of time. To remedy this condition, Mr. Smith ordered one of the workmen to disconnect the compressed air hose which had been used to play on the hot spots and run air into the hole made about fifteen feet from the floor, and to insert the air hose into the bottom of the burner. The air hose came from a connection in an adjoining building to the east of the one in which the sulphur burner was located. The evidence does not indicate definitely who made the connection, but shortly after Mr. Smith had authorized the air hose to be inserted at the bottom of the sulphur tank, an employee of the Leonard Construction Company, or one of its subcontractors, attached the air hose onto the gas pipe, used for the gas burner. It had no marking to indicate it was a gas pipe. The gas was odorless. The hose was then inserted into the hole at the bottom of the sulphur tank and the valve on the gas line opened. Soon thereafter there was an explosion. Plaintiff’s husband was outside the gas burner on a scaffold from which entrance was made to the manhole fifteen feet from the floor. The explosion caused deceased to be thrown from the scaffold, resulting in injury which caused his death. There is no evidence that the defendant’s employees were in any manner engaged or assisting in the repairs or that they controlled or had any right to control any of the workmen engaged in repairs, nor is there evidence that the defendant knew or had cause to know that the workmen, in correcting the defects of the sulphur burner, would have cause to insert an air hose in the bottom of the sulphur tank. Mr. Smith testified that as a part of the original work on the sulphur burner the gas pipe was installed and connected to the gas burner. He knew where the gas pipe was located by which the gas burner was used to start the sulphur burner. The evidence does not show whether the workmen who were engaged in correcting the defects in the sulphur burner were the same as those who engaged in its original construction. There is no evidence that a sulphur burner of the character installed by the Leonard Construction Company had ever been installed on defendant’s premises before, consequently there is no evidence that the repair being made at the time of the accident or the procedure used in making it had ever been resorted to before in its plant. There is no evidence that compressed air had ever before been found necessary to cool the sulphur burner in making repairs, consequently there is no evidence that there ever had or would have been use for a compressed air pipe in the repairs but for the failure of this particular sulphur burner to operate properly, plus the particular character of the repairs required. Even then, compressed air was not necessary in the procedure of making the repairs, but only became useful as a means of expediting the repairs by cooling the sulphur burner sooner than it would otherwise. Compressed air was used in the sulphur burner operation but it was inserted at the top of the burner along with the sulphur and to expedite its combustion.

Under these facts, it is the position of defendant that it cannot be held liable, because the death of plaintiff’s husband occurred in such a manner that it could not reasonably have been anticipated and would not have happened but for an exceptional combination of circumstances.

Actionable negligence consists of three essential elements, namely a duty or obligation of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and injury proximately resulting from the failure. What duty did defendant owe the deceased under the circumstances of this case?

The following statement is from Corpus Juris, Volume 45, page 837: “The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers.”

A case cited in plaintiff’s brief states the applicable rule as follows: “ * * * but the master must warn the servant of all dangers to which he will be exposed in the course of the employment, except those which the servant may be deemed to have foreseen as necessarily incidental to the employment in which he engages, or which may be open and obvious to a person of experience and reasonable understanding, and except also such as the master cannot be deemed to have foreseen.” Marsanick v. Luechtefeld, Mo.App., 157 S.W.2d 537, 541.

Deceased, at the time of the injury resulting in death, was on the premises of the defendant at the implied invitation of the latter to perform services for it. Under these circumstances, he became an invitee, and under the Missouri rule defendant owed him the duty to use ordinary care to prevent his injury and furnish him a safe place to work. Cash v. Sonken-Galamba Co., 1929, 322 Mo. 349, 17 S.W.2d 927, loc. cit. 929. Generally speaking, defendant would be liable for injury occasioned by any unsafe condition of the premises encountered in the work, which was known to the defendant, but unknown to the deceased. Feldewerth v. Great Eastern Oil Co., Mo.App.1941, 149 S.W.2d 410, loc. cit. 413. Some of the cases hold the measure of defendant’s liability is its superior knowledge of the unsafe condition and danger therefrom to the injured party. Vogt v. Wurmb, 1927, 318 Mo. 471, 300 S.W. 278; Stein v. Battenfeld Oil & Grease Co., 1931, 327 Mo. 804, 39 S.W.2d 345; 44 A.L.R. 988.

The rule of law upon which defendant relies has been uniformly recognized by the appellate courts in Missouri. It is that defendant cannot be held liable for negligence for failure to take precautionary measures to prevent an injury, which if taken would have prevented it, when resultant injury could not reasonably have been foreseen and would not have happened unless under exceptional circumstances. The question is not whether the accident might have been avoided, if defendant had anticipated its occurrence, but whether taking tire circumstances as they existed, defendant was negligent in failing to anticipate and provide against the occurrence. The law will not hold defendant liable for an injury that could not reasonably be anticipated and guarded against by the exercise of ordinary care. In such case, insofar as defendant is concerned, the injured party assumed the risk. If the injury is not one which could reasonably have been anticipated as a sequence of the negligence charged, then the alleged negligent act is not. in fact negligence. To hold the defendant liable under such circumstances would be to hold the defendant as an insurer. Lawson v. Higgins, 1943, 350 Mo. 1066, 169 S.W.2d 881.

On the other hand, the fact that the precise manner in which the injury occurred was not foreseeable would not be a defense, if from its failure to warn by labeling the gas pipe, the defendant might reasonably have anticipated that injury of some kind would result. If the failure to warn by labeling the gas pipe or some other character of designation created a dangerous situation, and defendant should reasonably have anticipated that some one in some way would be injured as a result of defendant’s failure to put a warning notice on or about the gas pipe, then a jury issue was made. Mrazek v. Terminal R. Ass’n, 1937, 341 Mo. 1054, 111 S.W.2d 26; Restatement of Torts (1934) Sec. 435.

Applying these general rules of law to the facts in this case, can the defendant be held negligent for its failure to warn that the pipe to which the air hose was connected conveyed natural gas by putting some character of designation on the pipe to that effect?

Defendant was not engaged in any way in the work of repairing the sulphur tank at the time of the explosion. The insertion of a compressed air hose into the sulphur tank at the bottom was not contemplated at the time of the construction of the sulphur tank, and had nothing to do with its operation. A gas burner (and only a gas burner) was to be inserted there. The necessary changes in the sulphur tank brought about by the defects which developed did not require the use of compressed air. It was only because of a desire to expedite the cooling of the sulphur tank that the compressed air was used. Mr. Smith was foreman of the installation of the sulphur tank, and it was at his direction that the compressed air hose was inserted in the bottom of the sulphur tank. If his workmen were inexperienced and without knowledge of their work, and if for that reason there was a probability that workmen would mistake the gas pipe for a compressed air pipe, he should have warned them at the time of giving the directions. Plaintiff states her case on this phase of the evidence as follows; “A simple hodcarrier came on the premises of the defendant, on June 3, 1941, to perform his humble duty of laying brick. It may be taken for granted that defendant knew, or was charged with knowledge, that the brick work and other manual labor would not be performed by mechanical engineers or- by anyone else having technical knowledge and the fact that Mr. Smith of Leonard and Mr. Fleischer of FleischerSeeger knew that the blue prints showed a gas line has no bearing on this case and is not binding on plaintiff.”

There is no evidence that defendant knew the contractor was using inexperienced men to do the repair work; that the men were new on the job or that they were not acquainted with the machine on which they were working, prior to the explosion. There is no basis for charging defendant with such knowledge.

Negligence in a certain sense is a question of fact for the jury. It is for the jury to determine whether the facts bearing upon the question existed or not. It is the duty of the court to determine under the law and undisputed facts if the question of negligence should be submitted to the jury. This involves no invasion of the province of the jury nor any infringement of their legitimate function. Negligence is a relative term and before the defendant can be held liable, it must be shown that he owed some duty to the deceased which he has failed to perform. Spurling v. La Crosse Lumber Co., 1920, 204 Mo.App. 29, 220 S.W. 707. We search ■in vain in this case for evidence that the defendant breached any duty. Taking the evidence in the light most favorable to the plaintiff, together with all the reasonable inferences to be drawn therefrom, we find that this case presents a state of facts upon which reasonable men could not fairly differ on the question as to whether the defendant exercised ordinary care under the circumstances. We do not believe that the defendant could reasonably anticipate when the sulphur burner was completed by the Leonard Construction Company that it would not operate and that thereafter it would become necessary to remove the brick work construction and that to expedite the cooling of the burner, compressed air would be introduced into the burner from the manhole at the bottom near the floor. We think the comment made by the court in the case of American Brewing Ass’n v. Talbot, 1897, 141 Mo. 674, 42 S.W. 679, loc. cit. 682, 64 Am.St.Rep. 538) applies to this situation. There the court quoted with approval the following excerpt from Ray on Negligence of Imposed Duties: “Mischief which could by no reasonable possibility have been foreseen, and which no reasonable person would have anticipated, cannot be taken into account as a basis upon which to predicate a wrong. A reasonable man does not consult his imagination, but can be guided only by a reasonable estimate of probabilities. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what his reason and experience will enable him to forecast as probable, nor conduct, on a basis of bare chances, a business whose success is dependent upon his accuracy in forecasting the future. He will order his precaution by the measure of what appears likely in the usual course of things. The proper inquiry is not whether the accident might have been avoided if the one charged with negligence had anticipated its occurrence, but whether, taking the circumstances as they then existed, he was negligent in failing to anticipate and provide against the occurrence. The duty imposed does not require the use of every possible precaution to avoid injury to individuals, nor of any particular means which it may appear, after the accident, would have avoided it. The requirement is only to use such reasonable precaution to prevent accidents as would have been- adopted by prudent persons prior to the accident. * * * The prudence and propriety of men’s doings are not judged by the event, but by the circumstances under which they act. If they act with reasonable prudence and good judgment, they are not to be made responsible because the event, from causes which could not be foreseen nor reasonably anticipated, has disappointed their expectations.”

The end of the gas pipe was opposite and about fifteen inches from the hole at the bottom of the sulphur burner, where the gas burner was regularly and could be readily attached to it, when its use was necessary to start the sulphur burner in operation.

Plaintiff insists there was a “maze of pipes” about the burner, some containing dangerous substances and some not. The exhibits (Defendant’s C) show the gas pipe standing out alone (except for scaffolding pipes). No other pipe appears near the gas pipe. The gas pipe had no other purpose to serve. Compressed air served no purpose in the operation of the sulphur burner at or near that position. The location of the gas pipe was a character of notice in itself that the pipe was a conveyor of gas to anyone acquainted with the operation of a sulphur burner. Allen v. Aroostook Valley R. Co., 1916, 115 Me. 361, 98 A. 1027; State ex rel. Kansas City Light & Power Co. v. Trimble, 1926, 315 Mo. 32, 285 S.W. 455, 49 A.L.R. 1047; McGinty v. Texas Power & Light Co., Tex.Civ.App., 1934, 71 S.W.2d 354. Defendant’s employees were acquainted with the operation of the sulphur burner and the use of the gas pipe and gas burner in connection with it. They required no warning that the pipe conveyed gas. Defendant had a right to assume that the contractor and its employees who had installed and were repairing the sulphur burner were acquainted with the gas pipeline, installed by them, and its use. Cole v. Jones, 1911, 159 Mo.App. 472, 141 S.W. 689. The location of the sulphur burner was not a public place nor one where the public was invited or had a right to be. It was a chemical manufacturing plant where only those with knowledge of that business were reasonably to be expected. What would be negligence in one situation might not be negligence in another. Gallagher v. City of Tipton, 1908, 133 Mo.App. 557, 113 S.W. 674.

We are unable to see how reasonable minds could differ on the proposition-that defendant had a right to presume that the contractor and its employees, including the deceased, had superior or at least equal knowledge with defendant, of the parts, including the gas pipe, and operation of the sulphur burner prior to and at the time of the accident, under the circumstances of this case. Defendant is under no obligation to warn of dangers which deceased is-deemed to have foreseen as necessarily incidental to his employment. How would defendant acquire its knowledge of the sulphur burner and the location and purpose of its various parts, including the gas pipe? We think it a fair assumption that it got its knowledge either from those who installed the equipment or from the same source as the contractor and its employees, namely, the blue prints. Had defendant gone about the work saying to this-employee and that employee of the contractors, this is dangerous and that is not, one could expect such warnings to be met with the declaration, “We know it — we put it there.” It would be a harsh rule, to say the least, to hold defendant liable for its failure to pass back to the contractor and its employees the information it had received from them, or information which had been common to both parties and. which the contractor and its employees were required to obtain in the first instance to make a proper installation.

To hold the defendant negligent in this case would be to require the defendant to inspect the independent contractor’s work in order to determine if it was being done in a way as to provide a safe place for the contractor’s employees to work. We know of no authority for such a holding, and have been cited to none. McLaughlin v. Creamery Package & Manufacturing Co., Mo.App.1939, 130 S.W.2d 656. We also conclude from the facts that defendant could not reasonably have anticipated that some one in some way would be injured as a result of failure to place a warning on or about the gas pipe, when consideration is given to the location of the gas pipe, lack of other pipes near it, its sole use in the operation of the sulphur burner, the lack of use of compressed air at that place in the operation of the sulphur burner, and the character of the establishment in which the gas burner was located. Yarn v. Ft. Dodge R. Co., 8 Cir. 1929, 31 F.2d 717; Restatement of the Law of Torts, Negligence, Sec. 435.

Plaintiff has a remedy for loss sustained ’in the death of her husband. Her difficulty in this case arises in the remedy she has elected to pursue. Here she is trying to hold the owner of the premises on which the deceased was working at the time of his death, not as an employee of defendant, but of an independent contractor, when the charge of negligence is a condition, which if negligent, was created by the con-tractor, in the construction work deceased was engaged in and not by defendant.

We have read the authorities cited by -the plaintiff. They do not deal with a situation of the kind here presented. Here we have a case where the deceased was .an employee of an independent contractor, over which the defendant had no control, and the instrumentality causing his death was set up and created either by deceased or deceased’s fellow employees. Defend.ant was not operating it or in control of it at time of the accident. It had not finally accepted it. Plaintiff would hold defendant liable because it stood by and permitted the instrumentality to remain as it was when the test run was started and while the contractor was still on the job— .a period in which deceased or his fellow ■ employees, after a lapse of not to exceed -.two months, returned to do repairs on their own work, including the instrumentality that caused the injuries. None of plaintiff’s cases support liability on such a basis.

In the Guthrie case (Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91) the situation resulting in injury was of defendant’s own doing. There was evidence its agents recognized the potential danger prior to the injury. In the Scherer case (Scherer v. Bryant, 273 Mo. 596, 201 S.W. 900.) the questions were, who was the employer of the servant whose negligence caused the injury, together with foreseeability of the acts of the servant causing the injury sued for. This case only states the general rule on the latter subject, about which the parties are not in dispute. The same is true of the Freeman case (Freeman v. Terminal R. Ass’n, 341 Mo. 288, 107 S.W.2d 36). The cases cited on plaintiff’s being entitled to all reasonable inferences to be drawn from the evidence state the general rule about which there can be no argument. The case of Jamison v. Kansas City (233 Mo.App. 684, 17 S.W.2d 621, 627) is distinguishable from this case in particulars that lend weight to defendant’s position. In the Jamison case, a wrongful death case, the city was constructing a sewer pumping station. It had given separate contracts for various parts of the work, particularly the construction of an electrical apparatus on the roof of the pumping station. The electrical contractor damaged the roof in carrying out its work and failed to make the repairs to the roof on request. The general contractor called the employer of deceased to make the repairs, with the knowledge of the city, and while on the roof so employed, plaintiff’s husband received electrical shock, causing his death. The case was submitted “upon the theory that the city knew or could have known that it would be necessary for a person, such as deceased, to be upon the roof and in the vicinity of the apparatus, and that the situation there was dangerous (and the evidence so shows regardless as to the type of its insulation and installation) and failed to protect or guard the apparatus, and failed to place proper warning signs about the same.”

In ruling on the question of liability the court said: “Although the city had not finally taken over the work from Kelly-Dennis Company, it was in the control and operation of the electrical apparatus both inside of the building and upon the roof. It appears that the city made a separate contract with the Evans Electrical Company in reference to the installation of the apparatus on the roof, an inference therefore arises, as to this part of the electrical system with which the general contractor had nothing to do, that the exclusive control of this was in the hands of the city. * * * The building itself had not been entirely turned over to the city. However, we take it that the city had control of the electric apparatus including the lightning arrester boxes, the tower and the lugs. This apparatus had been completely installed and turned over to the city and the electricity turned on.”

In the case being ruled, the defendant had not “finally taken over” the sulphur burner from the contractor; defendant was not in “control and operation” of the burner; defendant had no separate contracts for installing the gas pipe. The City in the Jamison case was warned at the time it took over the electrical work: “The letter instructed the city to ‘install and maintain suitable 13,200 volt danger signs on the roof and in the sub-station for the protection of life,’ and not to ‘permit anyone to work on the roof in the vicinity of the lightning arrester or roof bushings without first having the System Operator of the Kansas City Power and Light Company open the pole top switch and discharge the lightning arrester.’ ”

And so the court found as to the defendant city: “It also knew when it requested the Kelly-Dennis Company to repair the roof where the bushings had been erected that some one would be required to go there for that purpose, yet it did not place any warning signs on the apparatus or warning fence around it or cause the electricity to be disconnected therefrom and the current discharged, but having every reason to believe that some workman would be sent there to repair the roof, took no precaution whatever to guard against his receiving a deadly charge of electricity. Having control of this highly dangerous agency, it failed to discharge that high degree of care that the law requires of such person.”

We do not deem it necessary to comment on other cases cited by the plaintiff.

Judgment in accordance with the opinions herein expressed will be entered in accordance with Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.