text:
    MARYLAND CASUALTY CO. v. GLAS-SELL-TAYLOR & ROBINSON et al.
    Civil Action No. 1494.
    District Court, W. D. Louisiana, Lake Charles Division.
    Aug. 22, 1945.

      Rosen, Kammer, Wolff, Hopkins & Burke, of New Orleans, La., and Kaufman & Anderson, of Lake Charles, La., for plaintiff.
    Thos. F. Porter, McCoy & King, Plauche & Plauche, J. E. Bass, Moss & Graham, and Cline, Thompson, Lawes & Cavanaugh, all of Lake Charles, La., Montgomery, Fenner & Brown, of New Orleans, La., and. Herold, Cousin & Herold, of Shreveport, La., for defendants.
   DAWKINS, District Judge.

The bill of complaint in this case filed May 14, 1945, invokes relief under the in-terpleader statute, as amended by the Act of January 20, 1936, c. 13, 49 Stat. 1096, 28 U.S.C.A. § 41(26), and rule 22 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, providing for declaratory judgments. The defendants are Glassell-Taylor and Robinson (hereafter called Glassell et al), a partnership, sub-contractors, John W. Harris Associates, Inc. (hereafter called Harris Associates), principal contractors, and some eight corporations and individuals alleged to have furnished labor and material on a construction job undertaken for Cities Service Refining Corporation, as owner in the Parish of Cal-casieu, La. The petition alleges that plaintiff, as surety for Glassell et al., executed in favor of Harris Associates, a bond in the sum of $595,000, to protect the said obligee against loss by the failure of the obligors, the said Glassell et al. to faithfully perform its sub-contract, said bond containing the unusual provision: “that no right of action shall accrue upon or by reason hereof, to or for the use or benefit of anyone other than the obligee herein named.” Further, that on November 29, 1944, the said contractor and obligee in the bond, Harris Associates, claiming that Glassell et al. had defaulted on their contracts, had “ousted said partnership from the work, which was being done and performed * * * and took possession of the work * *

It further alleged that the following suits had been filed:

(1) In the United States District Court for the Eastern District of Louisiana by Harris Associates, against Glassell et al. and its individual partners, Ashton Glas-sell, Jay W. Taylor and J. P. Robinson, as well as the present plaintiff, Maryland Casualty Co., bearing No. 1032 on the civil docket of said court, claiming damages against the said defendants in the sum of $1,056,502.81, and praying judgment against plaintiff in the present case for the full amount of its bond of $595,000.

(2) By Paul E. Workman (hereafter called Workman) in the 14th District Court for the Parish of Calcasieu, La., against Glassell et al., and the present plaintiff, Maryland, as surety, bearing No. 23,715 on the docket of said court and alleging that defendants therein were indebted to him in the total amount of $109,912.92.

(3) By H. N. Mitchell (hereafter called Mitchell), doing business as the Beaumont Construction Company, also in the District Court for Calcasieu Parish, La., against Workman and Maryland, bearing docket No. 23,715, for the sum of $3,450.

(4) By McWane Cast Iron Pipe Co. (hereafter called McWane) against Workman and Maryland for the sum of $5952.85.

Petitioner further alleged that five additional claims had been made by other persons, which it made defendants in the present suit, giving names and amounts, but as to which it did not allege suit had been filed.

The petition denied liability to any and all said defendants, but alleged that the claims grew out of “some housing project”; that said defendants are adverse claimants, citizens of different states, and all “residents of states other than the state of which plaintiff is a citizen, entitling plaintiff to relief in the form of a declaratory decree, under the provisions of Sec. 274(d) as amended, U.S.C.A. T. 28, Sec. 400”; and that unless the relief sought is granted it will suffer irreparable injury.

Plaintiff prayed for a declaratory judgment that the said bond is not a statutory bond, but the obligee therein, Plarris Associates, alone has the right to sue thereon ; and if the court should hold otherwise, then the defendants should be “required to interplead and settle between themselves their right to the money so found to be due” ; that the petitioner have judgment against its principals, Glassell et al. for whatever amount is recovered against it in favor of other defendants; and that all defendants be enjoined from further action in any other court.

On the filing of its petition plaintiff tendered and the court ordered filed for the benefit of cliamants against the original bond executed by it, another bond with other recognized companies as sureties, for the said sum of $595,000, in lieu of cash, and at the same time issued a restraining order against further prosecution of suits in other jurisdictions pending action herein. This restraining order has been and is still continued in force.

The rule to show cause why a preliminary injunction should not issue was heard on June 9, 1945. At that time motions to dismiss were filed by the defendants, Workman, W. S. Dickey and Clay Manufacturing Co., while answers to the rule were filed by Hydraulic Development Corporation and McWane. There was also filed a letter from Richard B. Montgomery, Jr., as attorney for Harris Associates and Ma-plewood Nos. 1 and 2, stating: “I believe the Maryland Casualty Company is entitled to the relief prayed for insofar as the request for a temporary restraining order is concerned.”

The plaintiff herein, Maryland, in support of its application for preliminary injunction, filed in evidence documents marked “Maryland I, Maryland II, Maryland III and Maryland IV”.

“Maryland I” is an exception by Maryland to the suit filed by Workman in the state court of Calcasieu Parish, La., pleading that the petition disclosed no cause or right of action against it.

“Maryland II” is an affidavit by the assistant manager of the New Orleans claims division of Maryland, that it had been served with notice of some five claims, upon which suit had not been filed.

“Maryland III” is a certificate by the counsel for the present defendant as to notice of the hearing, its postponement, and subsequent re-setting.

“Maryland IV” is also an affidavit by counsel for the present plaintiff, listing the other actions that had been instituted against Glassell-Taylor and Young (the last named instead of Robinson), and the individual members of said partnership (being the same as in the case of Glassell-Taylor and Robinson, to-wit: Ashton Glas-sell, Jay W. Taylor and J. P. Robinson), and against the present plaintiff as surety on the bond, in favor of Harris Associates, dated August 14, 1943, and which names are the same as those enumerated in plaintiff’s petition in the case in this court. Attached to “Maryland IV” are copies of pleadings in other courts as follows:

(1) “Exhibit A” being the suit by Harris Associates against Glassell et al. and Maryland, as surety, filed in the United States District Court for the Eastern District of Louisiana, and bearing No. 1023 on its docket, demanding the suit of $1,056,-502.81 against Glassell, et al. and $595,000 against Maryland, as surety, in solido, as for breach of contract

(2) “Exhibit B,” a bill of complaint by Workman filed in the state court for Cal-casieu Parish, La., against Glassell et al., Harris Associates, Cities Service, Maple-wood Nos. 1 and 2, and Maryland, praying for judgment in solido against all said defendants for the two items claimed to be due under Workman’s sub-contract with Glassell et al., aggregating $109,912.92, and for the recognition of an alleged lien upon the premises. Workman further prayed as follows:

“Your petitioner further prays that all of the persons, firms and corporations named in paragraph XLV of this petition each be served with a copy of this petition and cited to appear herein and be required to assert such claim as they might have against the said lands and improvements, buildings, constructions and installations thereon, and that the claims of all of the parties in this suit be tried in concursus.”

He also prayed for the sum of $1500 and attorneys’ fees and for trial by jury. Upon this petition was entered an order by the state court appointing curators for nonresidents and directing trial by jury, upon petitioners providing bond in favor of the parish to cover costs of jury.

(3) “Exhibit C.” A suit by Mitchell in the state court of Calcasieu Parish against Workman, Glassell et al., Harris Associates, Cities Service, Maplewood Nos. 1 and 2, and Globe Indemnity Co. in the sum of $3450, for the rental of a “trenching machine” and attorneys’ fees.

(4) “Exhibit D.” Suit of McWane against Workman for the sum of $15,343.-37, filed in the state court of Calcasieu Parish, in which jurisdiction was obtained through writ of attachment and service on a curator ad hoc, and in which the claim of Workman for the sum of $111,145.46, above referred to, against Glassell et al., Maryland, Harris Associates, Cities Service, Maplewood Nos. 1 and 2, was seized. Mc-Wane alleges that “said claim is secured by a lien and privilege upon lands and improvements thereon, now belonging to” Ma-plewood Nos. 1 and 2, and prays that the judgment against Workman “be in rem but have no further effect than the property herein attached.” The attachment was issued and the claim seized by the sheriff, who described it as secured by lien on certain real estate.

Opinion.

The present case was submitted, first, upon the motions to dismiss by Workman and by W. S. Dickey Clay Manufacturing Co. (hereafter called Dickey), and second, the application for the preliminary injunction of the plaintiff.

It is necessary, of course, to dispose of the motions to dismiss before determining the right to the preliminary injunction.

Taking up first Workman’s motion, we find that it alleges want of jurisdiction, based upon some eleven separately enumerated grounds, to-wit:

(1) That only two of the defendants are residents of this district;

(2) As to these two, plaintiff “admits no liability” but “seeks a declaratory judgment with respect to certain nonliability, while asserting jurisdiction for its bill of inter-pleader or bill in the nature of interpleader upon the residence of those same two defendants only”;

(3) That plaintiff "is authorized to do and is doing business in the state of Louisiana” and its bond was given in connection with work done in this state, for which reasons plaintiff has “subjected itself to the jurisdiction” of the state court, and hence there is no diversity of citizenship between plaintiff and those two residents of Louisiana” ;

(4) That plaintiff is not a stake-holder without interest;

(5) That the amount in controversy between plaintiff and those two residents of Louisiana is less than $3000;

(6) That the petition affirmatively “shows no liability to anyone other than” Harris Associates, “a corporate citizen of Delaware” ;

(7) That the complaint affirmatively shows that the bond was given in connection with “construction of housing proj ects in Calcasieu Parish” by a private owner, and “that all the rights and liabilities of the various parties * * * owners, principal contractor, sub-contractors, furnishers of service, labor and materials and the surety on the bond of any of the parties, including plaintiff herein, are prescribed by Act 298 of the Legislature of Louisiana for the year 1926, as amended, which creates liens on property upon which said construction is done, provides the manner in which said liens are preserved, creates causes of action against the owners of said property under certain circumstances and prescribes the liability of any surety * * * and that said surety shall be bound to the same extent as the contractor or other person undertaking said work”; and that the present action does not affirmatively seek to interplead any owner or owners for whom said housing project was constructed * * * » .

(8) That the “present action was filed on May 14, 1945; that on April 4,1945,” Workman had filed in the state court for Cal-casieu Parish “a concursus proceeding, * * * citing the owners, the general contractor and all claimants by whom any claims had been filed, and Maryland as surety * * * to have all of said parties assert their respective claims to be tried in concursus, as provided by said state statute, which said concursus proceeding was designed for the purpose of preventing a multiplicity of suits to the same extent and for the same purpose as a bill of interpleader or a bill in the nature of an interpleader in the Federal Courts * * * ”; that no other person, including plaintiff, had “filed any petition in said state court for concursus proceeding,” and that Maryland had thereby subjected itself to the separate suits declared on in its complaint; that this present action in the Federal Court “is a creation of equity and that the equitable jurisdiction of this court does not properly attach where the identical and complete relief sought in this court is otherwise obtainable, particularly where the same relief is obtainable under a state concursus proceeding, previously filed in the state court; where the jurisdiction of the entire subject was first obtained, and wherein Maryland * * * was cited as a party on April 9, 1945,” and for which reasons there is want of equity and a lack of jurisdiction ;

(9) That Workman asserts a solidary liability against Maryland and others in said concursus proceeding, some of whom are not parties to the present action, and a lien on the property upon which the construction work was done, as well as a personal judgment against some of the parties, who are likewise not parties to the present suit, and which can not properly be adjudicated here; and that if this suit is not dismissed, the mover, Workman, and other claimants in a similar situation, “under the guise of preventing a multiplicity of suits for one party,” Maryland, “* * will be required to litigate this Federal action” with Maryland “* * * alone and the said action against all the other parties to said concursus (in the state court) except Maryland * * * and present in both actions the same evidence and thereby be subjected to a multiplicity of suits and the double expense of prosecuting their claims and demands”;

(10) That in the said concursus proceeding Maryland had been cited and proceedings had therein as follows:

(a) It was cited April 9, 1945, (b) that on April 19, 1945, it had obtained consent of attorneys for Workman for an extension of time within which to plead, until May 9, 1945, (c) that on May 9th following, it had filed a motion for security for ■costs, (d) that on the same day it had filed a prayer for and obtained an order for oyer of the bond sued on therein, (e) that on May 24, 1924, counsel for Maryland and Workman had filed a “general stipulation and obtained” an order for the disposition of the motion for security for costs and (f) on the same day, Maryland filed exceptions of “no right or cause of action and of non-joinder in said concursus proceeding” ; that some of the pleadings in the state court were filed before and others after the present suit had been filed, thereby evidencing a complete want of equity herein and a want of jurisdiction, and, finally, that the matter of taking or declining jurisdiction herein addresses itself to the discretion of this court based upon the “high principles of equity and equitable considerations,” and in view of the circumstances of this case, including the previous institution of the concursus proceeding in the state court by Workman and the laches and failure of said Maryland to timely avail itself of the right to file a similar concursus in the state court, or to file this present action in the Federal Court before jurisdiction was obtained in the state court on the same subject matter, shows want of equity and therefore of jurisdiction.

The motion to dismiss by Dickey Clay Manufacturing Co. was based upon substantially the same grounds.

The contract for the performance of which the bond of Maryland, plaintiff herein, was given, was executed by Harris Associates (general contractor), “in virtue of its contract with said Cities Service Refining Corporation, owner,” with Glassell et al. “to perform all the work, furnish all the labor and material” necessary for:

“(1) Installation complete of the water distribution system
“(2) Installation of sewerage collection system
“(3) Construction of roadways and roadway drainage for and at the housing project of the owner.”

Copy of this contract was attached to and made part of the bond of Maryland, which is the subject of this interpleader proceeding. The bond was in favor of Harris Associates, as stated, “acting in virtue of its contract with * * *, the owner, * * *,” and had as its purpose the protection of the obligees against claims for labor, material, and by sub-contractors of the obligor.

The Act 298 of the Legislature of 1926 provides (in Sec. 2) that: “The owner of such work shall require of such undertaker, contractor, [etc.] a bond with good and solvent surety * * *”, and (Sec. 3) “Where the owner has required the bond herein provided, the said surety thereon shall be liable in solido with the contractor for all labor and materials used in said work * * * as to which labor and materials said surety shall be bound to the same extent as the said contractor * * * undertaking such work”; (Sec. 6) “In all cases where a surety has been furnished, as between such surety and any claimant for labor or material or any subcontractor * * * the surety shall be entitled to make only the same defense as the contractor for whom he signed as surety is authorized to make * * (Sec. 7) “Failure of the owner * * * to obtain a sufficient bond shall not release the surety as to the owner * * * nor shall such failure deprive any claimant” under the terms of this Act of his rights against the surety * * *”; (Italics by the Court.)

Section 14 provides:

“* * * provided, however, that before any suit is instituted against the surety prior to the registry by the owner of his acceptance of the work, or of the notice of default, such claimant shall record his claim as provided in Section 2 hereof, and shall serve a copy of said claim, in the form and in the manner prescribed in Section 2 hereof, or (on) both the owner and the surety and provided that no suit shall be filed against the surety until thirty days after such service. Any action against the surety must be brought within one year from the registry of acceptance of the work or of notice of default of the contractor. * * *”

Referring back to Section 4 of the Act, we find it provides the procedure where unpaid claims by laborers, material men, sub-contractors, etc., are made and it is quoted in full:

- “Section 4. If, at the expiration of said thirty days, there are such recorded claims, filed as aforesaid, the owner or any other interested person, may file a petition in a court of competent jurisdiction, citing all claimants, including the undertaker, contractor, master-mechanic, engineer or subcontractor, against or by any of whom said claims are filed, and also the surety on the bond, and therein shall assert whatever claim he has against any and all of them, and shall require said claimants to assert their respective claims; and all of said claims shall be tried in concursus. When the concursus is provoked by a party other than the owner, the owner shall be made one of the defendants. In the event that the owner has claims in concursus with the other claimants who have a lien and privilege on his property under the provisions of this act, the cost of completing the building or other work by reason of the default of the original contractor, when established to the satisfaction of the court and when paid for by the owner, shall be reimbursed to him by preference out of any balance which might have been due under the contract if completed by the contractor; but the owner shall have no claim for the excess in the cost of completion if such cost exceeds the amount of said balance, or for any other of his claims against the surety on the bond of the contractor until all other claimants have been paid in full. When the owner files a con-cursus proceeding he must deposit in court whatever funds, if any, remain in his hands after paying the costs of completing the building, if he was compelled to complete it by reason of the default of the contractor, but any claimant shall have the right to show in that suit or other appropriate proceeding that the amount claimed to have been paid by the owner for such completion was not really paid or that work done was not covered by the original contract, and pending the trial of such issue the liens and privileges herein given to sub-contractors and others shall remain in full force and effect.” (Emphasis by the Court.)

While it is true that the court will not at this time fully determine the question of plaintiff’s liability to suit by persons other than the obligee under terms of the bond, which is the subject matter of this action, it is deemed necessary to quote and,, discuss these provisions for the purpose of illustrating the complications which would arise in an attempt to settle them in the present proceeding. Both as to Harris Associates, as the representative of the owner of the Cities Service, as well as all claimants for material, labor, sub-contractors, etc., before the court, it would be difficult, if not impossible, to decide the question of that liability, until it had been ascertained in some appropriate proceeding just how much the owner or its agent could demand from plaintiff, since the statute subordinates the owner’s claim to any balance that may be due after completion of the work out of the construction price as well as upon the bond, to those of laborers, material men, etc. Then, too, the Act itself declares the liability of the surety and purports to give said claimants a right of action even though the bond be “not sufficient.” Of course, it may be argued that this means “not sufficient” in amount, but that is an issue as to the determination of which this court would be bound by the decisions of the State tribunals, and to enjoin the State court from deciding that liability in concursus proceedings, along with all other complicated issues that will necessarily arise, would be to take from it the possibility of disposing of one of the most important phases of the litigation now pending before it.

The very purpose of the Federal interpleader statute was to protect against a multiplicity of suits and possible double liability to two or more persons whose claims might exceed the total obligation. If, before, or at the time of filing in a Federal Court, there has been instituted in a state court a concursus proceeding under said law, involving other persons, claims and demands, which it is necessary to determine in one action, and some of which will not or can not be decided in an interpleader suit in a Federal court, it would be both awkward and inequitable to attempt a determination of the surety’s rights and only part of those of claimants in the state court. If this Act does not give all the claimants for labor, material, sub-contractors, contractors, etc., a right of action against the present bond or if there is a serious issue on the bond, I do not see how this court could decide the matter without having all the parties before it.

Counsel for plaintiff contends that it can not be protected in the state court against suits filed in other courts, particularly against the one by Harris Associates, instituted in the United States Court for the Eastern District of Louisiana. He relies on the clause of Sec. 14 of the Act of 1926, quoted above, to the effect that “nothing in this Act shall be so construed as to deprive any claimant of his right of action against the surety signing any bond * * * which right of action * * * shall accrue at any time after maturity of the claim of the said claimant * * It also relies, for support of that position, on the cases of Levingston Supply Co. v. American Employers Ins. Co., La.App., 198 So. 416; and Central Lumber Co. v. American Employers Ins. Co., La.App., 15 So.2d 229, both by Judge LeBlanc of the First Circuit Court of Appeals (one of the intermediate appellate courts of this state). However, a careful examination of these cases and others of the State Courts, would seem to support the proposition, that if timely filed, and there are many claims, a concursus proceeding in the State Court does protect those made parties thereto against the harassment of suits in other courts. In the first case relied on plaintiff held a claim against the contractor for plumbing material and labor, which was recorded on October 6, 1939. Various other claims were filed, one eventuating in a companion suit which was decided on the same day and styled Baton Rouge Sash & Door Co. v. Spedale et al., La.App. 198 So. 420. On November 17th, Levingston Supply Co. made demand for payment on the contractor and surety, which they ignored. Thereafter, on December 19th, suit was filed against the surety. Prior thereto on December 8th, the owner had filed a concursus proceeding in the same court, showing that he had made payments of $3240 on the total contract price of $3600, leaving a balance of $360 or 10 per cent retained in accordance with the provisions of the contract, and which he tendered in the concursus, wherein the contractor and surety were made parties. Levingston appeared in the concursus on December 21st, “which was the day before the defendants (Surety Company) was served in the present suit,” and on which day “a note of evidence was taken in the concursus proceeding, and on motion of counsel, judgment was rendered and signed, releasing the owner from further liability other than the amount deposited by it and cancelling the liens recorded against the property.” In the Levingston independent suit the surety company filed exceptions of no cause or right of action and prematurity. The grounds of the said exception of prematurity were that other claims and liens had been filed “against the property of the owner * * * and its surety * * * and any claim the plaintiff may have against defendant (surety) can be asserted only in” the concursus proceeding previously filed by the owner and pending before the same court. The exceptions were overruled and the record showed no other pleadings. The case was treated by both sides as having been disposed of by the rulings on the exceptions. There was judgment for plaintiff as prayed for with ten per cent attorneys’ fees. The amount of plaintiff’s claim was not disputed and only a question of law was presented. The court discussed and contrasted the provisions of the Public Buildings Act 224 of 1918, as amended by Act 271 of 1926 with the Private Buildings Act No. 298 of the same year, the latter being involved in the present case. It pointed out that in the former, section 4, the language read that the authorities representing the public, “shall file a petition in the proper court” provoking a concursus; whereas in the latter or Private Buildings Act, the “owner or any other interested person, may file” such a proceeding. For this reason, it was said that under the Public Works Act, the filing of the concursus was mandatory, whereas in the Private Works Act, “it is only permissive on the part of any of the interested parties.” [198 So. 418] Judge LeBlanc then proceeded to state that he did not think the difference between the two statutes would be questioned “[but] for the language used in the decision of the Supreme Court in the case of American Creosote Works v. Olivier & Son, 175 La. 651, 144 So. 136.” The Supreme Court in this latter case had said that “the language of both (The Public and Private Property Acts), relating to a concursus proceeding, is practically the same,” but Judge LeBlanc called attention to the fact that the case decided by the Supreme Court arose under the Public Works Act No. 271 of 1926, and in effect concluded that what that court had said was obiter. We quote from the Levingston case by Judge Le-Blanc, at page 419 of 198 So., as follows:

“At this point it may be important to observe that under Section 14 of Act 298 of 1926, any claimant is given a particular right of action against the surety and the contractor, and nothing in the act itself shall be so construed as to deprive him of such right. In the case of American Creosote Works, Inc. v. P. Olivier & Son, Inc., et al., supra, that section of the act was called to the court’s attention, the plaintiff having relied on it in support of its claim that it had a right to bring a separate action. Notwithstanding the fact, as we have stated, that the case involved an interpretation of the provision of the Public Works Act, Act 224 of 1918, the court nevertheless gave consideration to the plaintiff’s pretensions and claims under Section 14 of Act 298 of 1926 and stated that all sections of that act had to be construed together, ■ and with that principle in mind, it had to be held that the language of the statute cited by the plaintiff applied in cases where there were no claims against the work.”

It is thus conceded that while the Supreme Court in adopting and quoting the opinion by the Judge of the district court had said that the provision in the Private Buildings Act was “practically the same” as the Public Building Act, Judge LeBlanc thought this unnecessary to a decision of that case, and in the subsequent one of Central Lumber Co., supra, he stuck to that conclusion. However, in the latter he also cited Dixie Bldg. Material Co. v. Mertz, 19 La.App. 881, 141 So. 791, by the Court of Appeals for Orleans Parish. The following is quoted from the Central Lumber Co. v. American Employers Ins. Co., 15 So.2d at page 231, as follows:

“Notwithstanding the fact that the surety has bound himself for a certain specific amount, he contends that if there are several suits filed against him it may well be that in the final outcome, by reason of the amount of the bonds he would have to furnish to take suspensive appeals from the several judgments rendered against him, he might be forced to pay on all of said bonds, a sum largely in excess of the amount for which he had become bound. Assuming the possibility of such a situation arising, it would seem that the answer which would suggest itself to the dilemma in which counsel states the surety company might be found, would be this: Let the surety himself institute and convoke the concursus if nobody else does. He is certainly a party interested and under section 4 of the Act has the undoubted right to convoke it and have all claimants cited to appear and assert whatever claims they have, to the end that they may all be tried together. Indeed, that is the very procedure which seems to be suggested by the court in the case of Dixie Bldg. Material Co. v. Mertz, 19 La.App. 881, 141 So. 791, 792. In that case the surety company also contended that it would be inequitable, because of the laches of the plaintiff, to hold it for an amount in excess of the amount of its bond where it had acted in good faith and had paid the full amount of its obligation. ‘The fallacy in this argument’, stated the court, ‘is that section 4 of Act No. 298 of 1926 provides the procedure and method by which the surety on a building contract bond can protect itself a'gainst paying any more than the amount of the bond by convoking con-cursus proceedings. Defendant failed to exercise its clear statutory rights, and its equitable plea is therefore without merit.’ Furthermore in the case presently before us it would appear that this was the only suit that had been filed against the surety company. It was filed on July 7, 1942 and put at issue by the defendant by the answer filed. What was there to prevent it from doing, at that time, what it thought proper to do on November 28, 1942, when it did convoke the concursus? By its action in doing so it certainly forestalled the danger which counsel now seems to be so apprehensive about. On that point of the case we are convinced that the decision of the trial judge is correct.”

In the Dixie Building Co. case, supra, the Surety Company had paid such claims as had been filed, and the balance due under the bond was paid by it to the owner. The statute gives a claimant one year in which to sue on the bond and it was held in substance that, by failing to provoke a concursus and having paid the balance due under the bond, on which claimants had a superior right to the owner, the surety could not escape liability in that suit to the only remaining claimant on the bond.

In view of this uncertainty and what appears to be a conflict between the decisions of the Court of Appeals of the First Circuit with that of the Supreme Court and the Court of Appeals for the Parish of Orleans, I believe it is my duty to construe, at least tentatively, for the purpose of disposing of the motion to dismiss herein upon equitable grounds, Act 298 of 1926. As stated by Judge Porter and approved by the Supreme Court in the American Creosote Works case, supra [175 La. 651, 144 So. 138], I think, “all sections of this Act must be construed together * * In doing so, while it is true it provides that if, after the expiration of thirty days there are recorded claims, “the owner or any other interested person, may file” a concursus proceeding, the subsequent clause provides that whoever files the samé “shall assert whatever claim he has against any and all of them (the other claimants, owners and contractor, sub-contractor, etc.), and shall require said claimants to assert their respective claims; and all of said claims shall he tried in concursus.” This section also requires that “when the concursus is provoked by a party other than the owner, the owner shall be made one of the defendants.” This is undoubtedly because of another provision in the same section that the owner’s rights against the bond are subordinated to those of laborers, furnish-ers of supplies, contractor, sub-contractor, etc., and if insufficient to pay all, he, the owner, must suffer, because in the first place, he determined the amount of the bond which would be exacted. Not only that, but he is required, when he files the proceeding to deposit in court whatever funds may be due the contractor.

My view is that when it is said in Section 4 that “if, at the expiration of said thirty days,” claims have been filed, “any other interested person may" file a concursus, the purpose is to accord each of those persons this privilege and the use of that word was more appropriate than to say that all of those named “shall” file such a proceeding. If shall had been used it might have been construed that all the claimants should join in the petition. It seems that the Legislature simply meant, that if the owner, contractor or surety, persons, who ordinarily would file such an action, did not do so, this should not deprive any claimant of the right to sue the surety on its bond. If this were not so, the Act could be ignored and all claimants at any time could file separate suits against the owner, the surety, or both as they chose, and thereby defeat the salutary purpose of the Act, which was, because of the conflicting claims, liens and involved relations of the situation, to have them determined in one proceeding where the judgment could be binding and final as to all concerned.

All the suits complained of by plaintiff in the present case are filed in the State Court for Calcasieu Parish, except that of Harris Associates against Glassell et al. and Maryland in the District Court of the United States for the Eastern District of Louisiana. Undoubtedly, final judgment rendered as between those parties in the concursus in the state court would be res adjudicata and the remedy appears to be that plaintiff in this case should appear in the Federal Court in New Orleans and ask that court to abate or delay the suit therein, pending final disposition of the concursus at Lake Charles.

My conclusion, solely for the purpose of disposing of this motion to dismiss, is that the Act 298 of 1926 makes the surety on a bond, given to secure parties to a written building contract, subject to suit by any of the persons for whose benefit it is required, regardless of a stipulation to the contrary in the bond, Miller v. Bonner, 163 La. 332, 111 So. 776, and further, that it would be impossible in this proceeding to do the same full and complete justice between all interested and necessary parties, which can be accorded in the concursus proceeding in the State Court. The latter partakes of the nature of both an action in rem and in personam. Certainly, as to whatever is due by the owner as to the bond, it is a litigation over a particular fund and obligation as to which the State Court had already acquired jurisdiction. Seal v. Gano, 160 La. 636, 107 So. 473.

The motions to dismiss should therefore be sustained.

Proper decree should be presented.


source: Caselaw Access Project

author: WATSON, District Judge.

license: Public Domain

text:
    SALVO v. KEATING.
    Civil Action No. 1806.
    District Court, M. D. Pennsylvania.
    Aug. 2, 1945.
    Joseph Serling and Ralph J. Johnston, both of Wilkes Barre, Pa, for plaintiff.
    Daniel H. Jenkins, of Scranton, Pa, and Patrick J. Flannery, of Wilkes Barre, Pa, for defendant.
   WATSON, District Judge.

The plaintiff, Patsy Salvo, filed a complaint against Luke Keating, Jr, doing business as Keating Detective Agency, under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq, to recover unpaid overtime compensation and an additional amount as liquidated damages. The case is before the Court on a motion to dismiss the complaint for the reason that “the Court lacks jurisdiction over the subject matter of the suit and the person of the Defendant, for the reason that the Defendant is not engaged in interstate commerce.”

In the complaint it is alleged that the defendant, Keating, does business as the Keat-ing Detective Agency, and in carrying on his business, he contracts to supply detectives, patrolmen, and guards to watch and look after the property of corporations, some of them engaged in the production of coal in interstate commerce; that Keat-ing receives requests for guards such as are mentioned above and hires men himself to be sent on the job.

More specifically, the complaint alleges that, from April 17, 1941, to January 14, 1942, plaintiff was employed by the defendant as a “patrolman or detective, to guard, patrol, watch and look after the property of the No. 9. Colliery, Harry E. Colliery, and Mineral Springs Colliery, and interests of the Pagnotti Coal Company, concerns engaged in the production and manufacture of coal for interstate commerce,” and that, as such an employee, he was not paid wages in accordance with the Fair Labor Standards Act of 1938, supra,

On March 11, 1943, in this Court, in case No. 1081 Civil, Walling v. Keating, the defendant, in the case at bar, consented to entry of a judgment, wherein he was enjoined, inter alia, from employing any of his employees engaged in commerce as defined by the Act for a workweek longer than forty hours, unless the employee receives compensation for his employment in excess of forty hours at a rate not less than one and one-half times the regular rate at which he is employed. In short, the defendant by his own act came within the provisions of the Act on the terms set out above.

In Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, the Supreme Court held that a watchman, not employed by the party engaged in interstate commerce, but by a third person, as in the case at bar, fell within the Act. In that case, as in Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, the employees were held to be covered by the Fair Labor Standards Act by virtue of Section 3(j), 29 U.S.C.A. § 203(j), which adds another class to those which fall within the Act under Sec. 7 — those who are engaged in commerce and those who are engaged in producing goods for commerce. Sec. 3(j) adds that “an employee shall be deemed to have been engaged in the production of goods if such employee was employed * * * in any process or occupation necessary to the production” of goods for commerce. This classification has been construed in both cases mentioned above not to limit the word “necessary” in the highly restrictive sense of “indispensable,” “essential,” and “vital.” In the Kirschbaum case, the Supreme Court held that the watchman, as well as engineers, firemen, carpenters and others, were covered, because they contributed to the “maintenance of a safe, habitable building” which was, in turn, necessary for the production of goods.

It appears, therefore, that the defendant falls within the Act, and that the motion of the defendant to dismiss the complaint must be denied.

The motion of the defendant, Luke Keat-ing, Jr., doing business as “Keating Detective Agency,” to dismiss the complaint is denied.


author: WYCHE, District Judge.

text:
    BOWLES, Price Administrator, v. BATSON.
    Civil Action No. 524.
    District Court, W. D. South Carolina, Greenville Division.
    Aug. 22, 1945.

      Marion Moise, Enforcement Atty., Office of Price Administration, of Columbia, S. C., for plaintiff.
    Price & Poag, of Greenville, S. C., for defendant.
   WYCHE, District Judge.

In this action the plaintiff seeks judgment against the defendant for treble damages under the provisions of the Emergency Price Control 'Act of 1942, as amended and extended, 50 U.S.C.A.Appendix § 901 et seq., and an injunction enjoining the defendant from violating the provisions of. the same. The cause is now before me upon motion of plaintiff for summary judgment under Rule 56, Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

The complaint alleges, in substance, that the defendant sold and delivered dressed hogs, or wholesale pork cuts, at a price higher than the maximum price prescribed by Revised Maximum Price Regulation No. 148; beef and veal carcasses and beef and veal wholesale cuts at a price higher than the maximum price prescribed by Revised Maximum Price Regulation No. 169; beef livers and other commodities at a price higher than the maximum price prescribed by Maximum Price Regulation No. 398; that the defendant failed to keep certain records required by these regulations; that the sales of the said commodities were made at wholesale to persons who bought the same for use or consumption in the course of trade or business; that these sales were made between December 1, 1943, and August 20, 1944, both inclusive, and the defendant charged and received the sum of One Thousand, Eight Hundred, Ninety Three and 57/100 ($1,893.57) Dollars, in excess of the applicable legal ceiling price which could have been charged.

After the defendant filed his answer plaintiff served upon him a written request for admissions, under Rule 36, Rules of Civil Procedure, in which he asked the defendant to make the following admissions for the purpose of this action only, and subject to all pertinent objections to admissibility which may be interposed at the trial: “1. The defendant made the sales of the various meat items shown on Plaintiff’s Exhibit A, which is attached to the Complaint, on the various dates, to the various purchasers, and charged and received the various prices shown thereon. 2. All of said sales were made in the course of trade or business, none at retail, and none to the ultimate consumer of the meat items so sold. 3. All of the meat items described on Plaintiff’s Exhibit A were delivered by the defendant at a distance of not more than fifty (50) miles from the place where the various animals from which said items were derived were slaughtered. 4. None of the dressed hogs sold by the defendant were sold to a certified hog processor, and all were prepared shipper style, i. e., dressed with the head on. 5. The defendant at the times alleged in the Complaint was and still is a resident of the Western District of South Carolina and the Greenville Division of this Court. 6. Deliveries of various meat items were made by the defendant to the following customers, at the following distances from the place where the animals from which said items were derived were slaughtered:

Customer Distance
The Basketeria, Greenville, S. C. Not over 25 Miles
The Piggly Wiggly, Greenville, S. C. Not over 25 Miles
The Kash and Karry Gro., Greenville, S. C. Not over 25 Miles
League’s Grocery, Traveler’s Rest, S. C. Not over 25 Miles
The Combination Stores, Greenville, S. C. .Not over 25 Miles
The Marietta Cash Grocery, Marietta, S. C. Over 25 Miles But Under 50 Miles

7. The only record of his sales of various meat items kept by the defendant during the times referred to in the Complaint herein are the records set forth in Plaintiff’s Exhibit C, attached to said Complaint.”

The defendant filed the following answer to plaintiff’s request for admissions: “1. Defendant will not admit as true the facts contained in Statement No. 1. Neither will the defendant admit the truth of the affidavits referred to in said statements. Defendant claims the right to cross examine the affiants. 2. Defendant refuses to admit the facts alleged in Statement No. 2. 3. Defendant will admit that his business as a wholesale meat dealer is conducted within a radius of fifty miles of Greenville, South Carolina, where he had his cattle, hogs, etc. slaughtered for sale. In order to carry on his business, however, defendant is compelled to make purchases of cattle, etc. in the Asheville, N. C. Stock Yards or markets, which is more than fifty miles from Greenville. 4. As far as defendant knows, none of his customers named in the complaint are certified hog processors and he, therefore, will admit Statement No. 4. 5. Statement No. 5 is admitted, defendant being a resident of the Western District of South Carolina. His home is at Greenville, South Carolina., 6. As to Statement No. 6, at least one of the alleged distances set •forth is entirely wrong, to-wit, Marietta, S. C., which is only fifteen miles from Greenville County Court House, and as this defendant demands a right to cross examine the parties named as to their places of business, distances, etc., and as to defendant’s manner and method of dealing with them, he will not admit Statement No. 6. 7. As to Statement No. 7, defendant refers to his verified answer in this case. Defendant for many years before the war conducted an honest wholesale meat business in Green-ville, S. C., and has always kept sufficient records to carry on a successful and honest business of that type. Defendant did not know of any particular form of bookkeeping records required by the O.P.A., and admits that he did not keep these records until he was informed about them, and supplied with them by an O.P.A. representative. Since he was enlightened by the. O.P.A. on the question of records, he has kept such records. Insofar as Statement No. 7 is not inconsistent with the above declaration defendant admits it. The above constitutes the defendant’s answer to the request of plaintiff served upon defendant’s counsel on February 24, 1945.”

Whereupon plaintiff filed a motion for summary judgment under the provisions of Rule 56, Rules of Civil Procedure, upon the following grounds: “1. The facts set forth in the plaintiff’s Request for Admissions under Rule 36, which Request was served on the attorneys for the defendant herein on February 24, 1945, are deemed admitted in that the defendant has failed to serve on the plaintiff or his attorneys within the period designated in the Request a sworn statement denying specifically the matters of which an Admission was requested or setting forth in detail why the defendant could not truthfully either admit or deny these matters. 2. The complaint, Answer, Request for Admissions, and the Affidavit of one of the plaintiff’s attorneys herein show that there is no genuine issue as to any material fact and that the plaintiff is entitled to a judgment for the relief prayed for in the Complaint as a matter of law.”

It will be seen from defendant’s answer to the plaintiff’s request for admissions that the defendant admits requests Nos. 3, 4 and 5, but refused to admit requests Nos. 1, 2, 6 and 7.

Rule 36(a), Federal Rules of Civil Procedure, provides: “ * * * Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than 10 days after service thereof or within such further time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of zidlicit an admission is requested or setting forth in detail the reasons why he cannot* truthfully either admit or deny those matters.” (Emphasis added)

Rule 56 is a procedural device for the disposition of cases in which there is no material issue of fact and its purpose is to eliminate a formal trial of cases where only questions of law are involved. Pen-Ken Gas & Oil Corporation v. Warfield Natural Gas Co., 6 Cir., 137 F.2d 871; Bowles v. Babar, D.C., 54 F.Supp. 453.

Failure to serve a sworn statement either denying matters of which admissions are requested or setting forth in detail the reasons why a party cannot either admit or deny such matters, resulting in admission of facts alleged in the complaint, in compliance with Rule 36(a) has been held to authorize a summary judgment. Walsh v. Connecticut Mut. Life Ins. Co., D.C., 26 F.Supp. 566.

Exhibit A, attached to the complaint, lists the various sales made by the defendant, the dates of sales, the amount charged and received by the defendant therefor.

The defendant did not comply with the provisions of the Rule 36, and therefore, the facts set forth in plaintiff’s request for admissions for the purpose of this case are deemed admitted.

On consideration of the complaint, answer, request for admissions, and the admissions made, I conclude that there is no material issue of fact for determination and that the only questions before me are questions of law.

The defendant made various sales at prices in excess of the applicable legal ceiling prices between the dates of December 1, 1943, and August 20, 1944, both inclusive, and as a result thereof, charged and received on these sales the sum of One Thousand, Eight Hundred, Ninety Three and 57/100 ($1,893.57) Dollars, in excess of the applicable legal ceiling price which could have been charged for the beef, veal, dressed hogs, and beef livers so sold, in violation of the regulations hereinabove referred to.

The sales of these commodities were made at wholesale to persons who bought the same for use or consumption in the course of trade or business. The plaintiff, Administrator of the Office of Price Administration, under the facts of this case, is authorized to institute this action on behalf of the United States. Emergency Price Control Act of 1942, as amended and extended, 50 U.S.C.A.Appendix § 925(e).

The remaining question is the amount of damages to be awarded the plaintiff. Section 205(e) (2) of the Act, 50 U.S.C.A. Appendix § 925(e), with respect to the amount of the recovery in treble damage actions, provides: “ * * * In such action, the seller shall be liable for reasonable attorney’s fees and costs as determined by the court, plus whichever of the following sums is the greater: (1) Such amount not more than three times the amount of the overcharge, or the overcharges, upon which the action is based as the court in its discretion may determine, or (2) an amount not less than $25 nor more than $50, as the court in its discretion may determine: Provided, however, That such amount shall be the amount of the overcharge or overcharges or $25, whichever is greater, if the defendant proves that the violation of the regulation, order, or price schedule in ques- ti on was neither wilfull nor the result of failure to take practicable precautions against the occurrence of the violation." (Emphasis added)

The word “wilful” means knowingly and deliberately. It does not mean that such violations were with evil intent or purpose, but rather denotes conduct which is intentionally knowing or voluntary as distinguished from accidental. Zimberg v. United States, 1 Cir., 142 F.2d 132. The wording of the statute places the burden on the defendant to prove not only that the violation was not wilful but. also that it was not the result of failure to take practicable precautions against the occurrence of the violation. This affirmative defense was not pleaded, but, on the other hand, the defendant by his answer has admitted that all sales made in excess of the ceiling price were made with his full knowledge and further that he informed his customers that said sales were in excess of the ceiling price and his reasons therefor. These allegations will negative any claim which could be made by the defendant that any violation resulting from the sales was neither wilful nor the result of the failure to take practicable precautions.

At the time the motion was made before me for summary judgment there was pending in the Emergency Court of Appeals a protest against the validity of Revised Maximum Price Regulation 169 insofar as it-applied to non-processing slaughterers. The defendant is what is termed a non-processing slaughterer. This protest was made in the case of Heinz v. Bowles, 149 F.2d 277, 283. On March 29, 1945, the Emergency Court of Appeals held that Revised Maximum Price Regulation No. 169 was invalid “in so far as the maximum prices therein for beef carcasses and wholesale cuts are applicable to non-processing slaughterers as defined in the Directive of October 26, 1943.” However, as to the industry as a whole the Court held that this regulation was generally fair and equitable. The same Court on April 2, 1945, vacated the judgment in the Heinz case and granted leave “to either party to introduce directly to the Court, on or before April 30, 1945, or such further time as the Court may hereafter allow, evidence directed to the validity of the Regulation insofar as the maximum prices therein for beef carcasses and wholesale cuts are applicable to non-processing slaughterers as defined in the Directive of the Office of Economic Stabilization dated October 26, 1943.”

In an opinion of the Emergency Court of Appeals filed July 31, 1945, in the Heinz case, 150 F.2d 546, the Court has held Revised Maximum Price Regulation No. 169 valid as to non-processing slaughterers and refused to set the regulation aside, stating: “It is sufficient to state our conclusion that the record now contains substantial evidence which, especially in view of recent revisions and enlargements of the subsidy payments, amply supports the Administrator’s contention that the regulation is presently valid even as applied to the non-processing slaughterers, whatever it may have been at some period or periods in the past. In this proceeding we are not called upon to render a declaratory judgment as to the validity, or invalidity, of RMPR 169 as of some date in the past. Since, on the entire record, complainants have failed to maintain their burden of establishing that the regulation is presently ‘not in accordance with law, or is arbitrary or capricious,’ we are without power to set it aside. Section 204(b) of the Emergency Price Control Act, 56 Stat. 32, 50 U.S.C.A.Appendix § 924(b). A judgment will be entered dismissing the complaint.” '

It is clear, then, that the validity of Revised Maximum Price Regulation No. 169 remains unaffected by the foregoing decision, and for the purposes of this action this regulation is valid and binding on "this Court. The jurisdiction to consider the validity of a regulation is vested exclusively in the Emergency Court of Appeals pursuant to Title 50 U.S.C.A.App. 924(d), and then only after having first pursued prescribed administrative remedies. Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 83 L.Ed. 834.

It is my opinion that under the facts in this case the amount of recovery by the plaintiff against the defendant should be double the amount of the overcharges, which amounts to the sum of Three Thousand, Seven Hundred, Eighty Seven and 14/100 ($3,787.14) Dollars.

An order for judgment and a decree of permanent injunction, conformable to the views herein expressed, will be signed on presentation.

       “1. Defendant denies each and every allegation in the said complaint contained except such as may be here after expressly admitted. Further answering the complaint defendant admits the allegation of paragraphs one and two thereof.
      “2. All the remaining allegations of the eomplaint which in any manner charge defendant with violating the Emergency Price Control Act are denied and strict proof thereof is demanded.
      “3. Defendant further answering complaint alleges that for 10 years he has been engaged in the wholesale meat business in Greenville County and vicinity. That he is a young man 31 years of age, with only a grammar school education. That he has worked hard to build up an honest business, and alleges that he has acquired an unblemished reputation for honesty and upright conduct throughout this community. That he has always kept only a simple record of his business, as he could not afford to employ an experienced bookkeeper. That his wife aids him in keeping his records.
      “4. That throughout the years defendant has almost invariably purchased the cattle, hogs, etc. processed by him in his business on the public market of Green-ville and vicinity. That the principal market place in Greenville County is Bruce’s Livestock Market on the Buncombe Road, where large numbers of hogs and livestock are auctioned to the highest bidder for cash. That in every phase of the marketing the business is highly competitive. That defendant, also, buys livestock at the Asheville Livestock Yards, Asheville, North Carolina, Northeast Georgia Livestock Association, Athens, Georgia, and also buys a lot of local cattle.
      “5. That defendant has a number of local customers to whom he sells dressed beef, pork, etc., but as above alleged defendant has to buy the animals slaughtered by him on the open and competitive market. That defendant has these animals slaughtered at Zaglin’s Abbatoir and delivers the dressed product to his customers, and his price to his customers is always based upon the price which he has to pay for the animals, plus abbatoir charges, transportation costs in delivering to his customers, and a reasonable profit.
      “6. That since the passage of the Act, defendant until recently conducted his business as he had always conducted it, making no changes whatsoever in order to evade or dodge the law, or the O.P.A. regulations. That he had an honest business and continued to conduct it as an honest man. That he kept such records as enabled him to fairly and honestly deal with all of his customers. That defendant did not know that the O.P.A. had any particular or special records -which they required a wholesale meat dealer to keep, and was only informed of such requirements about the time this action was brought against him. That since he was notified by the O.P.A. representative that such records were required, and since he was shown the type of records demanded, the defendant has faithfully and to the best of his ability kept such records and will continue to do so.
      “7. Defendant admits that the O.P.A. established ceiling prices for dressed beef and pork, etc. applicable to this section of the United States, but the O.P.A. did not, as defendant is informed and believes establish any ceiling prices for the livestock farmer or livestock dealer, who were permitted to sell livestock, etc. at whatever prices they could get. That as aforesaid alleged defendant had to purchase the live animals slaughtered by him on the open market in competition with many other dressed meat dealers, wholesalers, etc., and in many instances defendant was forced to pay prices in excess of the ceiling price which had been given to wholesale dress meat dealers.
      “8. That at the times mentioned in the complaint there was often a great scarcity of beef, pork, etc. on the Greenville Retail Market. Retail meat dealers were frequently without any meat to sell to their retail customers. That defendant himself was forced to pay auction prices in excess of the ceiling prices fixed by the O. P.A. for defendant and others in his class. That defendant’s customers informed him that they must feed the public and supply them with meat and in effect constituted defendant as their agent to get the dressed beef and hogs for them and that they would absorb the differences themselves and sell it retail to their customers within the retail ceiling prices. That defendant understood the regulations were made to protect the customer public and defendant alleges that in no event did any of his retail market customers sell any meat secured from him at over the established ceiling price and on all occasions defendant informed his customers that he could not buy the animals at less than his ceiling price, due to the fact that the livestock raiser and dealer were permitted to sell without any ceiling price. That defendant is informed and believes that at the times mentioned in the complaint the O.P.A. had not given the retail meat dealers any ceiling prices at which they could purchase dressed meat, nor had said retail dealers been informed of the ceiling prices appliea-ble to the wholesale dealers. Therefore, when the defendant informed Ms customers that he could not secure meat for them within the wholesale ceiling prices he was directed to get the meat at such prices as he could and they would absorb the difference and thus protect the retail purchaser. That in no instances has defendant ever passed on to a retail meat dealer any dressed meat, pork, etc. at a price over his ceiling price without fully explaining the situation to the retailer.
      “9. For the foregoing reasons defendant alleges" that under a fair construction of the Emergency Price Control Act that he has not violated the same, and defendant would not be amenable to any regulations of the O.P.A. which goes beyond the fair scope of the act.”


author: DUFFY, District Judge.

text:
    KRISOR et al. v. WATTS et al.
    Civil Action No. 1624.
    District Court, E. D. Wisconsin.
    July 21, 1945.
    Phoenix, Murphy & Heirich, of Chicago, Ill., and Jesse Habush, of Milwaukee, Wis., for plaintiffs.
    Gerald P. Hayes and John Kluwin, both of Milwaukee, Wis., for defendants.
   DUFFY, District Judge.

Plaintiffs were injured as a result of an automobile collision which occurred in the State of Illinois on September 14, 1942. Alleging negligence on the part of the defendants, an action for damages was commenced in this court, the complaint being filed on September 13, 1944. The summons, issued the same day, was served on defendant Watts on September 14, 1944, and upon defendant Ernst on November 17, 1944.

In their separate answers the defendants allege that the right of action asserted respectively by the plaintiffs is barred by the Wisconsin statute of limitations. Section 330.19(5), Wis.Stats. The matter before the court is plaintiffs’ motions to strike said defense from each answer.

Section 330.19(5) of the Wisconsin Statutes provides that no action to recover damages for an injury to a person shall be maintained unless within two years after the happening of the event a notice in writing shall be served upon the person or corporation by whom it is claimed such damage was caused, or, if no such notice is given, then an action must be brought and a complaint actually served within two years after the happening of the event causing such damages. No notice was served or attempted in this case. Though the complaint was filed within the two year period, it was not served within that period, resulting in a failure to comply with the Wisconsin statute. The question, therefore is whether compliance was essential.

If the action had been brought in the Wisconsin State courts, it would be barred, the requirement of the statute being a condition precedent. Troschansky v. Milwaukee Electric Railway & Light Co., 110 Wis. 570, 86 N.W. 156. The Wisconsin courts have insisted upon a strict compliance. Voss v. Tittel, 219 Wis. 175, 262 N.W. 579.

A civil action is commenced in a United States district court by filing a complaint. Rule 3, F.R.C.P., 28 U.S.C.A. following section 723c. Such filing effects the commencement of the action for all purposes. Reynolds v. Needle, 77 U.S.App.D.C. 53, 132 F.2d 161; McGrier v. P. Ballantine and Sons, D.C., 44 F.Supp. 762; United States v. Spreckels, D.C., 50 F.Supp. 789. The filing of a complaint commences an action within the meaning of that term in a statute of limitation. Gallagher v. Carroll, D.C., 27 F.Supp. 568.

Pursuant to Rule 3, F.R.C.P., this action was “commenced” within the two year period. This rule has the force of law and is as binding as a statute (Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F.2d 406), and cannot be abrogated or diminished by the exercise of State power through statute or otherwise. Williams v. Powers, 6 Cir., 135 F.2d 153.

In Switzer v. Weiner, 230 Wis. 599, 601, 284 N.W. 509, 510, the court said: “The accident happened in the state of Illinois and the'liability of the parties is therefore to be determined in accordance with the law of the state of Illinois. * * * ”

Section 15, Chapter 83, Smith-Hurd Annotated Statutes of Illinois provides: “Actions for damages for an injury to the person, * * * shall be commenced within two years next after the cause of action accrued.”

Holding as I do that the Wisconsin statute is not applicable, the motions of the plaintiffs, to strike that portion of each answer based upon said statute, will be granted.


author: GALSTON, District Judge.

text:
    THE S. & P. NO. 15. TODD SHIPYARDS CORPORATION v. UNITED STATES.
    No. 17206.
    District Court, E. D. New York.
    June 18, 1945.
    Crowell & Rouse, of New York City, (George Varian, of New York City, of counsel), for libellant.
    Miles F. McDonald, U. S. Atty., of Brooklyn, N. Y. (Eugene Rheinfrank, of New York City, of counsel), for respondent.
   GALSTON, District Judge.

The scow, S. & P. No. 15, on April 25, 1944, was moored alongside, outboard, of the scow Brooklyn. The latter scow was moored alongside the bulkhead in the slip between the 33rd Street and 35th Street piers, Brooklyn, New York. The Navy tug Y. T. 464 reached the slip at about 12:50 P. M., that afternoon, and while maneuvering in the effort to assist the Warship P. F. 22 to enable the latter to undock and move out into the stream, brushed against the scow S. & P. No. 15, and the starboard quarter of the Navy tug came in contact with the outboard side of the scow at a point about midships.

The S. & P. No. 15 is a small, clear deck, harbor scow, about 85 feet long, 29 feet wide, and has straight sides with a rake fore and aft.

Whether as a consequence of this contact or otherwise, the scow sank at about 2 P. M. that day, and her decks became awash.

The libellant seeks a finding to the effect that the probable result of pressure and motion of the tug against the S. & P. No. 15 caused the barge to surge forward on her lines toward Pier 33 and impale a plank under the rake on a floating raft, camel, or some other object in the slip-way.

There is no evidence to support such a finding.

The record discloses that there was no visible mark, scraping or other damage on the outboard side of the S. & P. No. 15. Lieutenant Ganley testified as a Navy surveyor, having been called to make a survey of the S. & P. No. 15 on drydock at the Todd Shipyards Corporation on May 1, 1944. He found that one end plank — he could not say whether it was bow or stem —was broken between the corner rake timber and the first intermediate rake. Also that two other end planks, the eleventh and the twelfth, below the bumper logs, were broken on the other side of the same end of the scow. The broken ends had been taken off by the shipyard to prevent the bottom plank from dropping off when the vessel was put in drydock. Ganley found that the wood near the broken plank was badly rotted, so much so that he was able to pick out “some rotted wood with my fingers”. Ganley quoted Hughes, a surveyor who represented the owner, as having told him that he, Hughes, had gone through the scow very carefully and had found no other damage, nor had he found any caulking which had started on the sides, nor any started fastenings. On the outside, however, the witness found that caulking had started just below the hole. Ganley was of opinion that no blow on the side of the scow could have resulted in a break of an end plank such as he found in the scow.

I am obliged to discard the testimony of Clow, bargee of the Brooklyn, as unreliable, for it involves contradictions and inconsistencies.

It is true, of course, that a maneuvering tug colliding with a moored barge is presumptively at fault. The Granite State, 3 Wall. 310, 70 U.S. 310, 18 L.Ed. 179; The Buffalo, 2 Cir., 56 F.2d 738; The Orion, 1 Cir., 26 F.2d 603. But to admit so much is not to concede that the Navy tug is liable for more than the damage which resulted. The question thus presented is whether the libellant is entitled to a decree when the overwhelming and convincing evidence in the case discloses that at the point of contact, the Navy tug caused no damage to the scow. There is a mysterious absence of proof between the tangential contact of the tug with the scow and the sinking of the scow. There is no proof in this case that the proximate cause of the sinking of the barge was the slight contact made by the tug with the scow. Proof of negligence alone does not establish liability. The Chester Valley, 5 Cir., 110 F.2d 592; United States v. The John R. Williams, 1941 A. M. C. 1588; The Smaragd (Lanasa Fruit Steamship & Importing Co. v. Universal Ins. Co.), 302 U.S. 556, 58 S.Ct. 371, 82 L.Ed. 422.

The libel will be dismissed.


author: DAWKINS, District Judge.

text:
    UNITED STATES v. 3 7/12 DOZEN PACKAGES OF NU-CHARME PERFECTED BROW TINT. SAME v. 26 CARTONS OF NU-CHARME PERFECTED BROW TINT.
    Civil Actions Nos. 1029, 1105.
    District Court, W. D. Louisiana, Shreveport Division.
    Aug. 7, 1945.
    See also 61 F.Supp. 850.

      M. E. Lafargue, U. S. Atty., and A. E. Bryson, both of Shreveport, La., for plaintiff.
    H. V. Booth and C. B. Emery, both of Shreveport, and P. G. Alston, of Texar-kana, Ark., for defendants.
   DAWKINS, District Judge.

In the opinion handed down in these consolidated cases on March 16, 1945, D.C., 59 F.Supp. 284, 289, it was said:

“The motion to dismiss will therefore be denied, but the matter is held open upon the issues of the constitutional questions to afford the parties an opportunity to obtain and file in this case certified copies of the proceedings had before the administrator, showing specifically the time and manner of giving notice to the claimant and others in said industry, as well as the character of the hearing.”

This ruling was made upon motion of the claimant or intervenor to dismiss the libel, and as indicated therein, the Court considered the only serious issue to be the constitutional one as to whether a reasonable opportunity to be heard had been afforded the intervenor and others in its position before the regulation prohibiting the use of coal tar in the manufacture of eyelash and brow tints was adopted.

In compliance with the suggestion or requirement contained in the concluding paragraph of the opinion quoted above, counsel for the government obtained and filed in the record the following:

(1) A press release under date of January 6, 1939, of a hearing to be had on February 6, 1939, in one .of the buildings occupied by the Secretary of Agriculture in Washington, D. C., at which, all persons using or proposing to use coal tar or its products in the manufacture of commodities for sale to the public, would be given an opportunity to be heard, either in person or through representative.

(2) Three copies’of the Federal Register of dates January 7, April 8 and May 9, respectively.

(1) The press release stated that at the proposed hearing there would be considered “some one hundred and thirty-two coal tar colors on which interested persons may submit testimony concerning harmlessness and suitability for use.” It also stated that, “It is not proposed to certify any color for use in eyelash or eyebrow dyes.” Presumably this release was published in the various trade journals of the many businesses of industries using coal tar colors.

(2) The Federal Register of January 7, 1939, among other things dealing with coal tar colors, etc., contained the following:

“Notice of public hearings for the purpose of receiving evidence upon the basis of which regulations may be promulgated providing for the listing of coal-tar colors which are harmless and suitable for use in foods, drugs, and cosmetics, drugs and cosmetics, and externally applied drugs and cosmetics; for the certification of batches of such colors; for procedures thereunder; and for the payment of fees therefor.”
“(o) The authorization contained in these regulations for the certification of coal-tar colors for use in food, drugs, and cosmetics, or in drugs and cosmetics, or in externally applied drugs and cosmetics, shall not be considered to authorize the certification of any coal-tar color for use in an eyelash dye or an eyebrow dye. A coal-tar color so used shall be considered to be from a batch that has not been certified in accordance with these regulations, even though such color is from a batch that has been certified for other use.”

The issue of April 8, 1939 contained the following:

“Department of Agriculture.
“Food and Drug Administration.
“In the matter of public hearing for purpose of receiving evidence upon basis of which regulations may be promulgated providing for listing of coal-tar colors which are harmless and suitable for use in foods, drugs, and cosmetics, drugs and cosmetics, and externally applied drugs and cosmetics; for certification of batches of such colors; for procedures thereunder; and for payment of fees therefor.”
“No direct, positive testimony was introduced by other interested persons to controvert, or tending to controvert, the testimony introduced by the Department to the effect that the application of any coal-tar color to the orbital area is liable to cause serious consequences, even resulting in impairment or loss of sight, and that no coal-tar color should be considered for listing for use in that area.”
“No coal-tar color in the orbital area. That coal-tar colors are not harmless for use in preparations applied to the eye. The anatomical structure of the eye includes the area bounded by the supra-orbital ridge and the infra-orbital ridge, including the eyebrow, the skin below the eyebrow, the eyelids, the eyelashes, the conjunctival sac of the eye, the eyeball, and the soft areolar tissue that lies within the perimeter of the infra-orbital ridge. The application of coal-tar colors to this area may cause serious injury and even loss of sight. A coal-tar color which is certified for use in food, drugs, and cosmetics, or in drugs and cosmetics, or in externally applied drugs and cosmetics, should not be certified for use in a product to be applied to the eye. A coal-tar color used in a product to be applied to the eye should be considered to be from a batch that has not been certified, even though such color is from a batch that has been certified for other use. (R., pp. 32, 33. 78, 234-37, 413, 437, 438, 498, 599, 433; Government’s Exhibit No. 1.)”

The issue of May 9, 1939, contained the following, among others, on the subject of use of coal tar for colors:

“Rules, Regulations, Orders
“Title 21-Food and Drugs
“Food and Drug Administration
“In the matter of public hearing for purpose of receiving evidence upon basis of which regulations may be promulgated for listing of coal-tar colors which are harmless and suitable for use in foods, drugs and cosmetics, drugs and cosmetics, and externally applied drugs and cosmetics; for certification of batches of such colors; for procedures thereunder; and for payment of fees therefor
“Order of the secretary promulgating regulations effective on publication
“Pursuant to, and under and by virtue of, the authority and direction of the Federal Food, Drugs, and Cosmetic Act (Sec. 701, 52 Stat. 1055, 21 U.S.C. 371(e) [21 U.S.C.A. § 371(e)]; Sec. 406(b), 52 Stat. 1049, 21 U.S.C. 346(b) [21 U.S.C.A. § 346(b)]; Sec. 504, 52 Stat. 1052, 21 U.S.C. 354 [21 U.S. C.A. § 354]; Sec. 706, 52 Stat. 1058, 21 U.S.C. 376 [21 U.S.C.A. § 376]), and based upon substantial evidence of record at the hearing in the above entitled matter, detailed findings of fact are made, as follows: * * * * *
“No coal-tar color in the orbital area. That coal-tar colors are not harmless for use in preparations applied to the area of the eye, which means the area bounded by the supra-orbital ridge and the infra-orbital ridge, including the eyebrow, the skin below the eyebrow, the eyelids, the eyelashes, the conjunctival sac of the eye, the eyeball, and the soft areolar tissue that lies within the perimeter of the infra-orbital ridge. The application of coal-tar colors to this area may cause serious injury and even loss of sight. No coal-tar color should be certified for use in a product to .be applied to the area of the eye. A coal-tar color used in a product to be applied to this area should be considered to be from a batch that has not been certified, even though such color is from a batch that has been certified for other use.”

From this showing it is evident that the claimant and all other interested persons were given all the notice possible, in view of the very large numbers of persons and industries involved. It further appears that all of those who filed appearances either in “person or through representative,” were given ten days in which to file briefs or arguments upon any point involved; and that such exceptions as were filed were duly considered, some sustained and others rejected. None appeared to have been made to the regulation providing that no batches of dye would be certified for use in eyelash or eyebrow tint.

On April 19, 1945, a further hearing was had by the court in this case, at which these exhibits were filed. Subsequently, in the month of July, the exact date does not appear in the minutes, counsel for claimant brought the matter to the attention of the court, and advised that he did not intend to file further briefs, as had been suggested at the time of the hearing, and requested that the case be disposed of as it stood.

Without finding it necessary to go further into the facts or law thus presented, it is sufficient to say that, in my opinion, there was due process and a compliance with the statute and that the plea of unconstitutionality of intervenor must fail.

The motion to dismiss will therefore be overruled.


text:
    UNITED STATES v. 3 7/12 DOZEN PACKAGES OF NU-CHARME PERFECTED BROW TINT. SAME v. 26 CARTONS OF NU-CHARME PERFECTED BROW TINT.
    Civil Actions Nos. 1029, 1105.
    District Court, W. D. Louisiana, Shreveport Division.
    Aug. 22, 1945.
    M. E. Lafargue, U. S. Atty., and A. E. Bryson, both of Shreveport, La., for plaintiff.
    H. V. Booth and C. B. Emery, both of Shreveport, La., and P. G. Alston, of Tex-arkana, Ark., for defendant.
   DAWKINS, District Judge.

The nature of this case, including pleadings and issues, was fully set forth in the opinions handed down by this court on March 17, 59 F.Supp. 284, and August 7, 1945, 61 F.Supp. 847, and will not be repeated.

It was held that the only question that could be considered was the one of compliance with the due process clause of the Federal Constitution, by the Administrator, in adopting the regulations which prevent the use of coal tar or its derivatives in the manufacture of eyelash or eyebrow coloring. It was held that, if sufficient notice and opportunity to be heard, within Constitutional requirements, had been afforded to the claimant here, and others in a similar situation, that the sole procedure for a review of the action of the Administrator is provided by the statute itself, and that is, through appeal from the ruling of the Administrator to the Circuit Court of Appeals having jurisdiction. See subparagraph (f) Sec. 371, 21 U.S.C.A.

The bill in this case, as amended, charges that the product in question is made from coal tar or a coal tar derivative, which has not been certified for use therein, in violation of the regulations adopted by the Administrator. This is admitted by defendant, but he denies that his product is dangerous when applied according to directions. In this situation I am of the opinion that the admission is sufficient to warrant sustaining the seizure and that the action of the Administrator on the evidence produced at the hearing can be reviewed only through the appellate procedure provided by the Act.

There should be summary judgment as prayed for.


author: KALODNER, District Judge.

text:
    WHITMARSH v. PENNSYLVANIA R. CO.
    Civil Action No. 3890.
    District Court, E. D. Pennsylvania.
    Aug. 21, 1945.

      B. Nathaniel Richter, of Philadelphia, Pa., for plaintiff.
    Philip Price, of Philadelphia, Pa., for defendant.
   KALODNER, District Judge.

This action was brought under the Federal Employers’ Liability Act, 35 Stat. 65 (1908), as amended, 45 U.S.C.A. § 51 et seq., and under the Safety Appliance Act, 27 Stat. 531 (1893) as amended, 45 U.S. C.A. § 1 et seq., to recover damages for personal injuries sustained by the plaintiff on May 4, 1944, in the course of his employment as a brakeman for the Pennsylvania Railroad, defendant.

One of the defenses interposed was a release of the claim for damages executed, allegedly, by the plaintiff on May 29, 1944. The validity of this release was challenged by plaintiff on the ground of fraud in its execution or procurement.

The case was tried before the Court and a jury, and, at the close of testimony, defendant moved for a directed verdict under Rule 50(b) of the Federal Rules of' Civil Procedure, 28 U.S.C.A. following section 723c. The motion was denied and the evidence w.as submitted to the jury. The jury, however, failed to agree and was discharged. Thereafter, pursuant to Civil Rule 50(b), the defendant filed a motion for judgment in accordance with its motion for a directed" verdict, and.this motion is now before the Court for consideration.

Plaintiff contends, in brief, that because of the injuries resulting from the accident, he was, at the time the release was signed, of irrational mind and incapable of understanding the release, and further, that this was known to the defendant’s claim agent, who, by false' representations, perpetrated a fraud upon him.

For the purposes of its present motion, defendant relies upon the asserted failure of the plaintiff’s evidence to sustain the burden of setting aside the release, and, in effect, seeks to have this Court declare the release binding as a matter of law.

First, a word may be said about the applicable law. Plaintiff’s suit rests on asserted rights granted by federal laws which, it is well settled, require uniform interpretation, so that local law is inapplicable. Second Employers’ Liability Cases, (Mondou v. New York, N. H. & H. R. Co.) 1912, 223 U.S. 1, 55, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A,N.S., 44; Bailey v. Central Vermont Ry., Inc., 1943, 319 U.S. 350, 352, 63 S.Ct. 1062, 87 L.Ed. 1444. Moreover, this requirement "of uniformity extends to the type of proof necessary for judgment, for the question of burden of proof is a matter of substance. New Orleans & Northeastern R. Co. v. Harris, 1918, 247 U.S. 367, 371, 38 S.Ct. 535, 62 L.Ed. 1167; see Garrett v. Moore-McCormack Co., 1942, 317 U.S. 239, 244, 63 S.Ct. 246, 87 L.Ed. 239.

An examination of the cases discloses that under the federal practice, where a party seeks to nullify a written instrument executed by him on the ground of fraud, his evidence must be clear, cogent, convincing and certain, or, as it is frequently stated, he must produce “clear, unequivocal, and convincing” proof, for fraud is i ever presumed. Lion Oil Refining Co. v. Albritton, 8 Cir., 1927, 21 F.2d 280, 282; Atlantic Delaine Co. v. James, 1876, 94 U.S. 207, 214, 24 L.Ed. 112; New York Life Insurance Co. v. Kwetkauskas, 3 Cir., 1933, 63 F.2d 890, 891; Merwin v. New York, New Haven & Hartford R. Co., 2 Cir., 1933, 62 F.2d 803, 804. In passing, it may be observed that the Pennsylvania rule, although phrased differently (clear, precise and indubitable), is the equivalent of the federal rule, and has been so applied. Rader v. Lehigh Valley R. Co., 3 Cir., 1928, 26 F.2d 73; McDonnell v. General News Bureau, 3 Cir., 1937, 93 F.2d 898. When such terms “ ‘are used in defining the requisite proof of a particular fact to be made out by oral testimony, it is meant that it shall be found that the witnesses are credible, that they distinctly remember the facts to which they testify, that they narrate the details exactly, and that their statements are true.’ ” McDonnell v. General News Bureau, supra, 93 F.2d at page 901.

On a motion such as that in this case, the Court must view the testimony from a standpoint most favorable to the plaintiff. Viewed in that light, his version of the circumstances surrounding the execution of the release is as follows:

On May 29, 1944, twenty-five days after plaintiff allegedly sustained his injuries, one Harold Clark, claim agent for the defendant, called the plaintiff on the phone and asked to meet him at the depot in Tyrone, Pennsylvania. Plaintiff replied that he had been in bed, sick, for three days and did not wish to meet Clark at that time, but Clark persuaded him to go. , At the depot, plaintiff told Clark of his troubles, and Clark expressed his sympathy. They then went to the waiting room of the doctor’s office in the depot. Clark asked the plaintiff whether he would consider a settlement, but the plaintiff refused because he did not “feel good” and did not know whether he was going to get better or worse. Plaintiff also told Clark, in response to the latter’s question, that he could not make ends meet. Then Clark, considering plaintiff had missed twenty-five days’ work, offered him $250.00 as payment for wages, until it could be determined whether plaintiff was getting better, and thereupon Clark gave him a check in that amount. As the plaintiff was about to leave, Clark called him back saying he needed a receipt. The plaintiff waited while Clark typed out a paper which he then asked plaintiff to sign. Plaintiff testified that at this time he was suffering a splitting headache, felt dizzy, and his eyes seemed to be coming out of his head. He bent over to read the paper, but felt as though he were “going to pass out”, and had to sit down. He could not read the paper because the print seemed blurred, and told this to Clark. Plaintiff testified he did not wish to sign anything he did not know about, but Clark told him that the paper was merely a receipt. Clark gave the plaintiff a pen, put a checkmark where he was to sign, and held his thumb on the paper telling plaintiff to sign where he had placed his thumb. Although the plaintiff signed, he testified that he did not know that it was a release, that he took Clark’s word because Clark acted friendly and sympathetically and that he trusted him. Plaintiff further testified that no one else was present at the time he signed the paper.

Following plaintiff’s execution of the document, Clark took him to the door and told him he would contact him later to • discuss a settlement of the case. The plaintiff then walked three blocks to the bank and cashed the check. He testified that he felt “dizzy” on the street.

It is my opinion that plaintiff’s testimony is clear and exact. While the oral testimony of Clark and Simms submitted by the defendant on the issue of fraud was in direct contradiction to the testimony of the plaintiff, such contradiction goes primarily to the credibility of the witnesses; whether the alleged facts existed, where such facts are denied, is plainly a question for the jury. On the other hand, the province of the Court in this ■case is to determine whether the alleged facts are such as would support a verdict by the jury in plaintiff’s favor. See Gunning v. Cooley, 1930, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; McKenzie-Hague Co. v. Carbide & Carbon Chemical Corp., 8 Cir., 1934, 73 F.2d 78, 85; Winget v. Rockwood, 8 Cir., 1934, 69 F.2d 326.

Plaintiff’s testimony that he had no intention of settling his case, that he understood that the check was in payment for time lost and that the check was meant to enable him to meet his expenses, and further that he was both physically and mentally ill prior to and during the meeting and was unable to read, amounts to clear evidence on which a jury could properly find that the plaintiff was not of such rational mind and intelligence to understand the written release and that the instrument was procured by fraud. It is true that the cases abound in the statement that failure to read a contract, where one can, or failure to obtain a reading of it, where one cannot read, amounts to negligence estopping denial. However, it is equally true that this rule is inapplicable where the failure is due to the fraud, artifice or imposition of the other party. See Whitney Co. v. Johnson, 9 Cir., 1926, 14 F.2d 24, certiorari denied 273 U.S. 734, 47 S.Ct. 242, 71 L.Ed. 864. In my opinion, the facts alleged by the plaintiff in this case, in view of the nature of the injuries which he sustained and the medical testimony as to dizziness, etc. would support a conclusion that the plaintiff was not of such rational mind and of sufficient intelligence to understand the nature of the written release.

Insofar as plaintiff’s subsequent cashing of the check is concerned, I think that its chief value lies in the weight a jury might attach to it as bearing on the question of ratification, and as reflecting on the matter of his difficulties. See Capital Traction Co. v. Sneed, 1928, 58 App.D.C. 141, 26 F.2d 296, 301.

To conclude, it is my opinion that this case is one for the jury, whose duty it is to pass upon the truthfulness of the witnesses and the weight to be given their evidence. This is especially true here in view of the recent statement by the United States Supreme Court in Blair v. Baltimore & Ohio R. Co., 1945, 323 U.S. 600, 602, 65 S.Ct. 545, 546, that, “To deprive railroad 'workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.’ Bailey v. Central Vermont R. Co., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444.”

Accordingly, defendant’s motion for judgment is denied.