author: BARD, District Judge.

text:
    UNDERHILL v. TABBUTT.
    Civil Action No. 2752.
    District Court, E. D. Pennsylvania.
    Aug. 24, 1945.

      Alphonso Santangelo, of Norristown, Pa., for plaintiff.
    Thomas J. Clary, Asst. U. S. Atty., and Gerald A. Gleeson, U.S. Atty., both of Philadelphia, Pa., for defendant.
   BARD, District Judge.

This is an action to recover compensation for damage to plaintiff’s automobile allegedly caused by defendant’s negligent operation of a motor vehicle. The suit was originally brought in the Court of Common Pleas for the County of Delaware, Pennsylvania, and was removed to this Court under the provisions of Section 33 of the Judicial Code as amended.

I make the following special

Findings of Fact

1. Plaintiff Hattie Y. Underhill, a resident of Lansdowne, Pennsylvania, was, at all times pertinent hereto, the owner of a Buick automobile, Pennsylvania license No. 697V8 (1940).

2. Defendant Clayton W. Tabbutt was, at all times pertinent hereto, an employee of the United States Bureau of Internal Revenue driving a government owned Chevrolet automobile.

3. At about 9:40 P.M. on April 21, 1940 defendant’s automobile pollided with plaintiff’s car in front of premises No. 9 East Plumstead Avenue, between Lansdowne and Wayne Avenues, Lansdowne, Pennsylvania, causing damage to plaintiff’s automobile.

4. At the time of the accident it was dark and raining. The headlights of both cars were lit.

5. F. S. Underhill, plaintiff’s husband, was driving her automobile in an easterly direction on the south side of Plumstead Avenue at low speed.

6. Defendant was driving the government automobile westwardly on the north side of Plumstead Avenue at a moderate rate of speed.

7. Underhill began a left turn across the west-bound lane opposite premises No. 9 East Plumstead Avenue to enter the driveway on the premises when defendant was approximately 150 feet to the east approaching the driveway.

8. Defendant struck the middle of the right side of plaintiff’s car. At the moment of impact, the front of plaintiff’s car was on the sidewalk and about to enter the driveway, and the rear end of the car projected on Plumstead Avenue.

9. Defendant’s car stopped about one foot from the north curb of Plumstead Avenue perpendicular to and against the right side of plaintiff’s automobile.

10. No other vehicles were on Plum-stead Avenue in the vicinty of the accident. There was a space of approximately 28 feet from the rear of plaintiff’s car to the south curb of Plumstead Avenue.

10. After the accident, defendant admitted to Mr. and Mrs. Underhill and the police officer who investigated the accident that the accident was his fault.

11. Plaintiff has suffered damages in the amount of $92.26, the cost of repairing her automobile.

Discussion

This automobile collision occurred at about 9:40 P.M. on a rainy night. Plaintiff’s husband, F.S. Underhill, was driving in an easterly direction on Plumstead Avenue, Lansdowne, and defendant was approaching Underhill from the opposite direction on the same street. Both drivers were alone in their cars. Underhill made a left turn in the middle of the block to enter the driveway of his home while defendant was still about 150 feet to the east. Defendant’s car struck the Underhill car on the right side at right angles while the front wheels of plaintiff’s car were on the sidewalk. Defendant’s car came to rest parallel and close to the north curb with its front end close to plaintiff’s automobile. Although the rear end of plaintiff’s car projected into the street, it was about 28 feet from the south curb of Plumstead Avenue.

Underhill had a right to make the left turn across defendant’s lane of traffic so long as it was done in a careful manner. Richards et ux. v. Warner Company, 311 Pa. 50, 166 A. 496, 87 A.L.R. 1159. Defendant was about 150 feet to the east when the turn started and it was reasonable for Underhill to believe that there would be ample opportunity to reach the driveway and for defendant to see plaintiff’s car and pass it in safety. Rankin v. Boyle, 328 Pa. 284, 195 A. 36. Having committed his car to crossing the lane of traffic 150 feet in front of defendant, Underhill had a right to assume that defendant would exercise ordinary care and keep his car under proper control so as to pass his car safely. Lookatch v. Robinson, 318 Pa. 545, 179 A. 66; Simon v. Lit Bros., Inc., 264 Pa. 121, 107 A. 635.

The position of the cars after the collision indicates that the defendant was not driving at a high speed. Defendant himself testified that he did not see the Underhill car before him until he was about 15 or 20 feet away. Underhill, an elderly man, was able to see defendant’s car at least 150 feet away. It seems reasonable that defendant should have been able to see the headlights of the Underhill' car at a distance which would have enabled him to avoid a collision by stopping or passing between plaintiff’s car and the south curb. Defendant cannot be permitted to say he looked ahead where he had an unobstructed view without seeing what must have been within his range of vision. Shore Service, Inc. v. Philadelphia Rural Transit Co., 97 Pa. Super. 541. Defendant was therefore negligent in that he did not take sufficient pains in his observation to see the obstruction which was before him. Richards et ux. v. Warner Company, supra.

If it is assumed that defendant exerted the utmost diligence in observing the roadway ahead but that the rain and darkness prevented him from seeing the Underhill car entering the driveway athwart defendant’s lane of traffic until defendant was twenty feet away, then defendant was negligent in not driving at a speed which would have enabled him to stop or avoid any obstacle appearing within his range of vision. Stark v. Fullerton Trucking Co., 318 Pa. 541, 179 A. 84; Janeway v. Lafferty Brothers, 323 Pa. 324, 185 A. 827; Meads v. Rutter, 122 Pa. Super. 64, 184 A. 560.

It is contended that, even if defendant is guilty of negligence, Underhill was guilty of contributory negligence. A determination whether or not Underhill was guilty of contributory negligence will not affect plaintiff’s right to recover for the damage to her car. The car, owned by the plaintiff, was being driven by her husband at the time of the accident. There was no evidence that he was driving the car in her behalf, in the furtherance of her affairs, or in furtherance of the affairs or business of the family. In the absence of such evidence, the contributory negligence of the driver, if any, cannot be imputed to plaintiff so as to bar recovery. Hildock v. Grosso, 334 Pa. 222, 5 A.2d 565; Piquet et ux. v. Wazelle, 288 Pa. 463, 136 A. 787.

Judgment must be entered for plaintiff in the amount of $92.26.

Conclusions of Law

1. This Court has jurisdiction of this action brought by plaintiff to recover compensation for damage to her car under the provisions of Section 33 of the Judicial Code, 28 U.S.C.A. § 76.

2. This Court has jurisdiction over the defendant.

3. The damage to plaintiff’s automobile was caused by defendant’s negligence.

4. Judgment may be entered for plaintiff for $92.26.

       Act of March 3, 1911, c. 231, § 33, 36 Stat. 1097, as amended August 23, 1916, c. 3991, 39 Stat. 532, 28 U.S.C.A. § 76.


source: Caselaw Access Project

author: SYMES, District Judge.

license: Public Domain

text:
    BOWLES, Price Administrator, v. CARPENTER et al.
    Civil Action No. 804.
    District Court, D. Colorado.
    May 3, 1945.

      . French L. Taylor and I. R. Schwartz, both of Denver, Colo., for plaintiff.
    Omar E. Garwood, of Denver, Colo., for defendants.
   SYMES, District Judge.

This is an action by the Price Administration seeking treble damages pursuant to § 205(e), Emergency Price Control Act of 1942, as amended, 50 U.S. C.A.Appendix, § 925(e). Jurisdiction is disputed by defendant and depends on a provision of § 205(c) of the Act which says: “all suits under subsection (e) of this section shall be brought in the district or county in which the defendant resides or has a place of business, an office, or an agent.”

The facts briefly are: Defendant Carpenter, doing business in Denver, Colorado, as the Carpenter Brokerage Company, is joined with the other defendants — all Missouri farmers — in a treble damage suit for violation of the Emergency Price Control Act of 1942, arising out of the sale of a carload of Missouri-grown grapes to the Pacific Fruit & Produce Company — a Delaware corporation — at Cheyenne, Wyoming.

The Missouri defendants plead lack of jurisdiction, in that when- this suit was commenced in January, 1945, none of them had within the State of Colorado either a residence, place of business, office or agent within the provision of the statute, supra. It is admitted that for many years last past the Carpenter firm has-been the agent and broker for the sale of Concord grapes for the Neosho Grape Growers Union, which is composed of the 13 other defendants — all Missouri residents. This association is an unincorporated marketing association, and in this particular transaction defendant Carpenter did sell for his principal the commodity complained of at a price in excess of the legal price as established by the Government, and previous to this transaction had sold grapes produced and marketed by the same defendants, and it may be assumed that when the next crop matures he will again be employed.

The transaction was conpleted in one day and Carpenter’s connection therewith ceased and terminated immediately. Since that time he has had no other transactions for any of defendants. At the time of the commencement of this suit defendant Carpenter says he was not an agent for the defendants. It is admitted that when the action was commenced the defendants had neither a residence, place of business, office or agent within Colorado.

The Government’s contention is, briefly, that Carpenter acted as a broker in the August 3rd transaction and then and there by operation of law became the agent for the defendants and continued as such up to the time that suit was commenced.

The defendants’ plea to the jurisdiction is as stated.

Admittedly Carpenter was defendants’ agent and carried out the transaction in question in August, 1944. It appears from the testimony taken at the hearing that Carpenter, doing business as the Carpenter Brokerage Company, has for many years past acted for the defendants, who operate as the Neosho Grape Growers Union, comprised of the 13 defendants residing in Missouri, and doing business as an unincorporated marketing association, and that in making this sale sold the carload of grapes at a price greater than the legal price established by the Government.

According to the Act — § 205(c) — such a suit as this may be brought “in any district in which any part of any act or transaction constituting the violation occurred, and may also be brought in the district in which the defendant resides or transacts business.”

An attempt is made by the defendants in the argument and brief to distinguish between a broker and an agent. Nevertheless, considering the intent of the act, the court is convinced that it applies to a party in the situation of Carpenter, whether he is strictly speaking a broker or agent.

The next question is: Assuming Carpenter completed the transaction in Colorado as an agent for the defendants, can suit in Colorado be avoided because, since the date of the transaction complained of, Carpenter has not acted for the defendants in any capacity in this state ? I do not think so. The liability of the parties is to be adjudged as the facts existed at the time of the alleged law violation. At that time jurisdiction undoubtedly existed. The fact that Carpenter thereafter ceased to be their agent and has done no more business for them since cannot affect the defendants’ liability as of that date, any more than a criminal can who violates the law and flees the jurisdiction of the court for the time being can plead that as a defense. The fact that the Government delayed bringing a suit for such a long time is immaterial, except in the event of the running of a statute of limitations.'

The plea to the jurisdiction is denied.


author: RIFKIND, District Judge.

text:
    BOWLES, Price Administrator, v. AMERICAN DISTILLING CO., Inc., et al.
    District Court, S. D. New York.
    July 6, 1945.

      See also 62 F.Supp. 20.
    Paul L. Ross, of New York City, for plaintiff.
    Moses Polakoff, of New York City, for defendant Sands.
    John S. Milliken and Herman G. Hand-maker, both of Louisville, Ky., and William Rawick, of New York City, for defendant Country Distillers Products Co.
    Walter Powers, of Boston, Mass., and William R. Rawick, of New York City, for defendants Ben Burk, Inc., and Arthur C. Sullivan.
   RIFKIND, District Judge.

The following defendants severally move to dismiss the action because of improper venue and improper service of process: 1, Arthur C. Sullivan; 2, Ben Burk, Inc.; 3, Country Distillers Products, Inc.; 4, Joseph J. Sands.

The complaint is in three counts and ‘names twenty three defendants. The first count is for an injunction to restrain alleged violations of MPR 193 and MPR 445; and is brought under Section 205(a), Emergency Price Control Act, 50 U.S.C.A.Appendix, § 925(a). Jurisdiction is predicated on Section 205(c) of that Act.

The second count is for treble damages arising out of alleged sales of distilled spirits by defendants at prices in excess of the maxima permitted by the regulations, § 205(e). Jurisdiction of the second count is founded on §§ 205(c) and (e) of the Act.

The third count asserts a claim in the nature of fraud and deceit and predicates jurisdiction, upon § 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1).

The propriety of the venue and the efficacy of the service of process must be tested separately for each count; 2 Moore’s Federal Practice, pp. 2123, 2138, 2140. Especially, it seems, should that be true where, as here, Congress has made distinct venue provisions in a single statute for the several modes of enforcement established.

Under § 205(c), actions for an injunction may be brought in any district in which any part of any act or transaction constituting the violation occurred, and “may also be brought in the district in which the defendant resides or transacts business.”

Actions for treble damages under § 205 (e) “shall be brought in the district or county in which the defendant resides or has a place of business, an office, or an agent.”

Process, in actions both for an injunction and for treble damages, “may be served in any district wherein the defendant resides or transacts business or wherever the defendant may be found.”

Venue with respect to the third cause of action is covered by the general venue statute, 28 U.S.C.A. § 112. Such an action may be brought in the district whereof defendant is an inhabitant; and in such case, process may not be served outside the district of the forum.

To avoid repetition in the consideration of the several motions, it may be observed that plaintiff does not contend that any part of the acts or transactions constituting the violation occurred in this district or that any of the moving defendants resides in the district. We may now proceed to a consideration of the several motions.

1. Arthur C. Sullivan: With respect to Sullivan, I can find nothing in plaintiff’s affidavit which so much as suggests that he had a place of business, office or agent in the district. It is averred that he was president of Ben Burk, Inc. (which is admitted), and its liquidating agent (which is convincingly denied) and that Ben Burk, Inc., had agents in this district. The object of this averment is to provide a basis for the inference that Sullivan had agents in the district. That, it manifestly fails to accomplish, especially since I accept as fact that Sullivan is president and not liquidating agent of Ben Burk, Inc. It appears without contradiction that Sullivan is a member of the Massachusetts bar and that he has an office for the practice of law in the City of Boston. Nor can I consider the fact, if it be fact, that Ben Burk had agents in New York, as tantamount to the transaction of business, in New York, by Sullivan. These agents, if there were agents, were the corporation’s and not Sullivan’s. Assuming that these agents transacted business in the district which may be imputed to- the corporation, I do not see how that can be imputed to Sullivan.

The venue requirements of none of the three counts have been satisfied. All three counts of the complaint must, therefore, be dismissed as to Sullivan.

2. Ben Burk, Inc.: Ben Burk is a Massachusetts corporation. It is not licensed to do business in New York. It has no office in New York. It maintains an office in Massachusetts and a plant in Indiana. It is plaintiff’s contention that Ben Burk, at the relevant date, had agents in the district. The precise foundation for this contention cannot be readily ascertained from plaintiff’s affidavits. It appears, however, to be plaintiff’s claim that these agents are Foster and Co., a partnership, and American Distilling Co., Inc.; that “the operations of Ben Burk were actively and closely directed by Foster and Co. and American Distilling Co. Inc.”; and that Ben Burk is “owned almost completely and jointly by Foster and Co. and American Distilling Co., Inc.”

There seems to be no dispute about the fact that either jointly or severally Foster and. American owned all but 300 of the 14,000 shares of Ben Burk, Inc. Nor can there be any doubt that the parent of a corporation may be its agent; but it is clearly not true that merely because one corporation is the parent of another, the former thereby becomes the agent of the latter. Compania Mexicana Refinadora Island, S. A. v. Compania Metropolitana De Oleoductos 1928, 250 N.Y. 203, 164 N. E. 907. To the determination of the fact of agency, concepts of domination and control, which are sprinkled through plaintiff’s affidavit, have slight relevancy. And when the averments of plaintiff’s affidavits are stripped down to the strictly relevant matter nothing more appears than that Foster and American owned and controlled Ben Burk. That is not sufficient to support the claim of agency. All three causes of action must be dismissed because it does not appear that the venue requirements of any of them have been satisfied.

3. Country Distillers Products, Inc.: This corporation is organized under the laws of Kentucky and in that state it has its principal office. It has no office in New York or in the Southern District of New York and does not transact business there. If it is in the district at all, it is because it has an agent here, and so plaintiff contends. The agents, according to plaintiff, are Foster and American. Country Distillers is substantially owned by Foster and Co. Westerman, a partner of Foster, is president of Country Distillers. On December 6, 1944, when the action was commenced, he was, according to plaintiff’s affidavit “located continuously in New York City * * * he controls the operations of the Country Distillers plant in Kentucky through issuance of orders by telephone and in writing to the plant manager.” Assuming that by “New York City” plaintiff means the Southern District of New York, the question is whether the presence of Country’s president in New York satisfies the requirement of § 205(c) that venue may be laid where defendant has an agent.

Riverside & Dan River Cotton Mills v. Menefee, 1915, 237 U.S. 189, 195, 35 S.Ct. 579, 581, 59 L.Ed. 910, cited by defendant, restated the rule previously announced by the Supreme Court that “the mere fact that an officer of a [foreign] corporation may temporarily be in the state or even permanently reside therein, if not there for the purpose of transacting business for the corporation, or vested with authority by the corporation to transact business in such state, affords no basis for acquiring jurisdiction [by the state court] or escaping the denial of due process under the 14th Amendment * * In the instant case we are not confronted by any such constitutional barrier. Our concern is the more limited one of statutory construction.

Conley v. Mathieson Alkali Works, 1903, 190 U.S. 406, 23 S.Ct. 728, 47 L.Ed. 1113, was also concerned with jurisdiction in the strict sense, not venue. It held that, “The residence of an officer of a corporation does not necessarily give the corporation a domi-cil in the state. He must be there officially, —there representing the corporation in its business,” Id., 190 U.S. 411, 23 S.Ct. 730, 47 L.Ed. 1113.

In Michigan Lubricator Co. v. Ontario Cartridge Co., 6 Cir., 1921, 275 F. 902, 904, it was said that, “To make executive decisions in the state where the officers live is not to do business within that state.”

These cases do not touch the question presented here, which is, whether the presence in the district, of the president of a foreign corporation who makes executive decisions here, constitutes enough to warrant the finding that the corporation “has an agent” in the district for venue purposes under § 205(c). ■ The phrase “has an agent” occurs in 38 Stat. 731, 15 U.S.C.A. § 15, which prescribes venue under the anti-trust laws (and see 15 U.S.C.A. § 22) and that statute has been construed in Eastman Kodak Co. v. Southern Photo Co., 1927, 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684. Concerning the meaning of the quoted words the Supreme Court does no more than to pose a-question:

“Whether, as applied to suits against corporations, as distinguished from those against individuals, the insertion of the words ‘or has an agent’ in this section can be held, in the light of the decision in the Peoples Tobacco Co. case, [People’s Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann.Cas. 1918C, 537], to have enlarged to- any extent the jurisdictional provision in section 7 of the Anti-Trust Act [15 U.S.C.A. § 15 note], we need not here determine”; Id., 273 U.S. at page 372, 47 S.Ct. 403, 71 L.Ed. 684.

The copyright venue statute is somewhat similar. It authorizes suit in the district of which defendant or his agent is an inhabitant, or in which he may be found; 35 Stat. 1084, 17 U.S.C.A. § 35. Under the copyright statute the Supreme Court has held that venue was not proper if laid in the district where an agent of the defendant was discovered who was in the district temporarily and not on the business of the corporation.

Lumiere v. Mae Edna Wilder, Inc., 1923, 261 U.S. 174, 178, 43 S.Ct. 312, 313, 67 L. Ed. 596. The court there said: “ ‘Agent’ is a word used in the law in many senses. What it means in a statute is to be determined from the context and the subject-matter. The president of a business corporation is, commonly, authorized to represent it for many purposes, and it may often be said properly that he is acting as its agent. But induction into office does not impress upon a person the status of agent of the corporation, so that he must be deemed its agent in every jurisdiction which he happens to enter, although the corporation transacts no business there and he is not there in any way representing it.”

In the instant case it is not even pretended that Westerman was in New York to represent or act in behalf of the defendant in connection with business in this state or district. His business in New York was the business of Foster. He was also president of Country Distillers; and while in New York he made executive decisions for Country Distillers. He is not alleged to be a resident of this district. “Such directions may perhaps constitute corporate acts and conceivably, if habitually given, might constitute the transaction of corporate business”; Compania Mexicana v. Compania Metropolitana, 1928, supra, 250 N.Y. 203, 208, 164 N.E. 907, 909. The facts, as disclosed by plaintiff’s affidavits, do not suffice even for such a “conceivable” inference; and moreover, plaintiff does not contend that this defendant transacts business in the district.

Considering that the amendment to § 205 (c) relating to treble damage suits was clearly intended to be more restrictive than the venue provisions relating to injunction suits under the Emergency Price Control Act, I conclude that Country Distillers cannot be said to have had an agent in this district simply because its president spent time in the district in connection with the business of another enterprise, when it does not appear that he had authority to transact or transacted business for Country Distillers in the district except to communicate executive decisions to the main office. All three counts must, therefore, be dismissed against Country Distillers since the venue requirements of none of them have been satisfied.

4. Joseph J. Sounds: Venue of the action against Sands is predicated by plaintiff on the claim that Sands had an office in the district. And so he did, until January 15, 1944. This action was commenced on December 6, 1944. It is immaterial that he had such an office at the time when the acts complained of occurred. No authority has been called to my attention which would make the time of the occurrence of the event the critical date under the venue statutes. The case of Bowles v. Carpenter, D.C.1945, 62 F.Supp. 13, does not seem to me to hold with plaintiff, but if it docs, I should find myself in disagreement with it.

No other basis for venue has been shown and it follows that the complaint as to him must likewise be dismissed.

Two additional arguments advanced by plaintiff requiré but brief note. Plaintiff apparently is under the impression that as to the third cause of action, he is at liberty to bring it in the district of which the plaintiff is a resident and he asserts that plaintiff may be deemed to be a resident of every district. I need not concern myself with the latter proposition for it is quite clear that, under the general venue statute, the plaintiff may sue in the district of his residence only in cases where jurisdiction depends upon diversity of citizenship. Jurisdiction of the third cause of action is, by its express allegation, not predicated on diversity but on the fact that plaintiff is an officer of the United States authorized to sue, Judicial Code, § 24(1).

Plaintiff also argues the point of convenience and calls attention to the necessity, if venue is held bad, of bringing many suits in several jurisdictions. He cites United States v. Standard Oil Co., E.D.Mo.1907, 152 F. 290. That was a suit under the Sherman Anti-Trust Act, 15 U.S. C.A. §§ 1-7, 15 note; its relevance to the issues here escapes me. But clearly plaintiff is mistaken in his belief that the courts have any discretion to consider convenience in deciding questions of this character. The argument of public convenience was addressed to Congress when § 205 of the Act was receiving legislative consideration. Within constitutional limits, that tribunal has the final word on the matter.

It should be noted that plaintiff’s affidavits lack that form of explicit statement and internal organization which is the mark of a readable composition. It may be that in the interstitial spaces of plaintiff’s affidavits there lurk averments from which other theories may be developed to sustain the venue as laid. I have not discovered any and I have acted on the declarations of the affidavits and briefs that plaintiff was relying on the proposition that three of the defendants had an agent in the district and that one had an office therein. That has not been established.

Some of the moving defendants have stated additional grounds for relief which were neither argued nor briefed. In any event no disposition is called for. This is also true with respect to the challenge of the service of process. Since the complaint must be dismissed, decision of that question is not required.

       See Mebco Realty Co. v. Warner Bros. Pictures, Inc., D.C., 1942, 45 F.Supp. 340, which held that under the Sherman Act a wholly owned subsidiary is not an agent of the parent for purposes of the venue although the latter, under contract with its parent, distributes pictures produced by the parent.

       The Judiciary Act of 1789, § 11,1 Stat. 79, próvidos: “No civil suit shall be brought before either of said courts against an inhabitant of-the United States, by any original process in any other district than that [of which] he is an inhabitant, or in which he [is] found o-t the time of serving the writ." The italicized words are not present in 28 U.S.C.A. § 112.


text:
    BOWLES, Price Administrator, v. AMERICAN DISTILLING CO., Inc., et al.
    District Court, S. D. New York.
    July 6, 1945.

      See, also, 62 F.Supp. 15.
    Paul L. Ross, of New York City (Elliott L. Biskind, of New York City, of counsel), for plaintiff.
    Garey, Desvernine & Garey, of New York City, for defendant Sanhope Foster & Co.
    Chapman & Keane, of New York City, for defendant Gorman.
    William B. Herlands, of New York City, for defendant Brown.
    John J. Burns, of New York City, for defendant American Distilling Co.
    Edwin M. Slote, of New York City, for defendant Siskind.
   RIFKIND, District Judge.

Several of the twenty-three defendants to the three-count complaint, filed by the Price Administrator, have made five motions to dismiss the complaint on a variety of grounds. It will facilitate consideration of the questions presented for decision if each of the motions is treated separately.

1. Motion of American Distilling Co.: This defendant moves to dismiss counts 1 and 2 for failure to state a claim upon which relief can be granted and to dismiss count 3 for lack of jurisdiction and for failure to state a claim upon which relief can be granted; and, in the alternative, for a bill of particulars.

Count 1 is in the stereotyped form of complaint used by the O. P. A. when it seeks an injunction to restrain alleged violations of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq. Such an action is authorized by Section 205(a) ; jurisdiction is conferred by section 205(c); and the complaint so recites. It further alleges that in the judgment of the Administrator the defendants have engaged in acts and practices which constitute a violation of section 4(a) of the Act in that they have violated the provisions of MPR 193 and MPR 445; and specifically, that from November 27, 1943, to the date of the complaint they sold and delivered, and offered to sell and deliver, distilled spirits, and demanded and received prices therefor in excess of the applicable maximum prices established by said regulations.

The nub of defendant’s objections is that “to state that twenty-three defendants all sold and delivered distilled spirits at over-ceiling prices, and offered to do so, is not to set forth ‘any acts or practices.’ ” I think it is. The complaint satisfies the requirement of Rule 8(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Such a complaint need not allege that “it was the practice of American Distilling Co. to sell distilled spirits at overceiling prices.” The complaint need not specify particular sales or acts on the part of this defendant. The complaint must be 'ead, on a motion to dismiss for insufficiency, as attributing the entire course of conduct described, to wit, the sale and offer to sell of distilled spirits at overceil-ing prices, to the moving defendant.

A complaint which charged that A and B committed the violation alleged herein would be good without an allegation of conspiracy. There is no logical reason why such omission should vitiate a complaint which charges the same violations against A plus B plus C, * * * plus N.

Count 1 states a claim against the moving defendant upon which relief can be granted and the motion to dismiss is, therefore, denied.

Count 2 of the complaint is brought under Section 205(e) of the Act and seeks damages equal to three times the amount ($538,535.) by which the defendants allegedly exceeded the permitted price maxima in the sale of distilled spirits, "between on or about the 6th day of December, 1943 and the 31st day of December, 1943. ” Jurisdiction is predicated on Section 205(c). Section 205(e) prescribes that actions thereunder by the Administrator may be instituted within one year from the date of the occurrence of the violation. This action was instituted on December 6, 1944. The time limitation expressed in 205(e) operates as a limitation of the liability itself as created, and not of the remedy alone. The Harrisburg, 1886, 119 U.S. 199, 214, 7 S.Ct. 140, 30 L.Ed. 358; Atlantic Coast Line R. Co. v. Burnette, 1915, 239 U.S. 199, 36 S.Ct. 75, 60 L.Ed. 226. And it has been held that where the time limitation is upon the right as created, the complaint must show that the claim is asserted within the permitted period. Stimp-son Computing Scale Co. v. Lucas, D.C.W. D.Ky.1927, 39 F.2d 473; Rosenberg v. Hano & Co.D.C., E.D.Pa.1938, 26 F.Supp. 160.

The moving defendant argues that the phrase, “on or about the 6th day of December, 1943,” has a certain elasticity, and that proof of the event some days before that date would satisfy the allegation, and therefore the complaint does not sufficiently allege that the violation occurred within the one year period prescribed by statute.

Many cases hold that there is no fatal variance between an allegation that an event occurred on or about a certain day and proof that the event occurred a reasonable period before or after the named day. Mazzarella v. Whelan, 1923, 276 Pa. 313, 120 A. 141; Kerr v. Blair, 1907, 47 Tex.Civ.App. 406, 105 S.W. 548, 551; Mitchell v. Prendergast, 1917, 178 App.Div. 690, 165 N.Y.S. 972. Cf. Conroy v. Oregon Construction Co., 9 Cir., Or., 1885, 23 F. 71; Lee v. Village of Greenwich, 1900, 48 App.Div. 391, 63 N.Y.S. 160. But this argument proves too much. Even if the allegation were to the effect that the event occurred on December 6th, proof that it occurred a few days before or after that day would not result in the plaintiff’s non suit, absent circumstances which would render the disregard of the variance unjust. The common device is to move to conform the pleadings to the evidence under Rule 15(b). And, of course, if by the variance the plaintiff takes himself out of the statute upon which he sued, he cannot recover. The allegation made in the instant complaint permits proof of violation on October 6, 1943, and the plaintiff must prove a violation on that day or later in order to sustain his cause of action. In this category of cases the defendant is not obliged to plead limitations as a defense, Atlantic Coast Line R. R. v. Burnette, supra. Consequently, I think the complaint is not deficient in the challenged respect.

Nor do I think count 2 insufficient because it fails to allege specific sales. There is nothing in the statute which prohibits the bulking of many sales in a complaint, provided that all fall within the statutory period. It may be that, in order to prepare .a responsive pleading, defendant is entitled to a bill of particulars; but the propriety of a bill does not require the dismissal of the complaint. I conclude that count 2 is sufficient in this respect as well.

The third count alleges that plaintiff is the Administrator of the O.P.A., that he promulgated MPR 193 and MPR 445, establishing maximum prices for distilled spirits and requiring the keeping of certain business records for examination by plaintiff; that he brings the action “as an officer of the United States for and on behalf of the United States”; that jurisdiction is conferred upon this court by Section 24(1) of the Judicial Code, 28 U.S.C.A. § 41(1); that the defendants conspired to and did deceive and defraud the plaintiff of his statutory .right to recover damages from defendants by reason of the sale by them of distilled spirits at overceiling prices; that such sales occurred between June 11, 1943, and December 6, 1943; that they caused false entries to be made upon their required records “thereby falsely representing to plaintiff, upon an examination of said books and records which was made on behalf of plaintiff," that no more than the permitted prices had been charged, whereas in truth defendants had overcharged $1,225,589; that plaintiff, in reliance upon the said representations, refrained from asserting his claim within the period permitted by law and thereby lost his claim.

This count is challenged both for lack of jurisdiction and for insufficiency. I do not reach the second ground because I have concluded that the court is without jurisdiction.

Section 24(1) of the Judicial Code confers upon the district court jurisdiction, “of all suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof authorized by law to sue.” The Administrator is by law authorized to sue; but the nature of the proceedings he may initiate are specifically enumerated in the Act: (1) He may apply to the district court for an order in aid of his subpoena, 202(e); (2) he may sue for an injunction or for an enforcement order, 205(a); (3) he may certify the facts to the Attorney General when he has reason to believe that a criminal violation has been committed under the Act, 205 (b); (4) he may intervene in actions between third parties where the Act or a regulation is the ground of claim or defense, 205(d); (5) he may institute treble damage actions “on behalf of the United States”, 205(e) ; (6) he may sue for the suspension of a license, 205(f) (2); (7) he may petition the Supreme Court for a writ of certiorari to review a judgment of the Emergency Court of Appeals, 204(d).

Nowhere, in this meticulously arranged arsenal of weapons at the disposal of the Administrator, do I find power to bring common law actions for deceit. It would seem too clear for argument that the words of Section 24(1) of the Judicial Code, “authorized by law to sue” do not mean to sue in general but to prosecute the specific action under consideration. It would be strange indeed if the Commissioner of Patents, because he has capacity to sue for some purposes, should, by virtue of Section 24(1) acquire the power to sue generally in behalf of the United States. Plaintiff does not contend as much; but he does urge that plaintiff may sue at common law to carry out the duties assigned to him if his statutory powers are not sufficient for the purpose. This argument, however, begs the question: Is it part of the Administrator’s duty to enforce claims for money damages in behalf of the United States which it has suffered by reason of defendant’s deceit? Nothing in the statute expressly imposes that duty upon him. Nor is it a duty which, if not devolved upon him, would go by default. The United States in its own name is not an infrequent litigant in fraud and deceit actions; and qui tam actions are designed to encourage private persons to prod an unadvised or reluctant Attorney General to take such action, 31 U.S.C.A. § 232. Consequently, it is not a situation in which we should be astute to discover, by implication, the allocation to the Administrator of such a responsibility.

Plaintiff does not evade the question. He gives an affirmative answer and relies upon Executive Order 8734, issued April 11, 1941. That order preceded the enactment of the Emergency Price Control Act. It created within the Office for Emergency Management the Office of Price Administration and Civilian Supply, headed by an administrator. Among other things, it directed the Administrator to take all lawful steps necessary or appropriate in order to prevent price spiraling, rising cost of living, profiteering, and inflation; to publish such maximum prices as he may deem fair; and to take all lawful and appropriate steps to facilitate their observance. Plaintiff argues that because 201(e), added by the Stabilization Extension Act of 1944, by implication recognizes the authority of O.E. M. over O.P.A., therefore, Executive Order 8734 is still in effect. It would seem more logical to suppose that when Congress gave statutory life to the agency which first came into being by executive order, it intended to cover the whole field of its activities and that the statutory O.P.A. did not inherit the powers of its predecessors except as these were re-conferred by statute. Indeed, where the old agency retained any life, Congress expressly acknowledged it. Secs. 205(d), 206. Be that as it may, it nowhere appears that the executive O.P.A. had power to bring common law actions for deceit. The history of that executive agency shows no exercise of such authority; and, indeed, one of the causes which led to the enactment of the Emergency Price Control Act was that “the need for direct sanctions to secure the observance of price schedules was increasingly felt.” David Ginsberg (formerly General Counsel, O.P.A.), 1942, 9 Law and Contemporary Problems, 22-25. The executive O.P.A. had no access to the courts to enforce price regulations. Its “indirect sanctions” were executive rather than judicial; and surely there is nothing in the executive order to supply a root for the idea that it could bring actions in deceit and recover money judgments in behalf of the United States. Consequently, even if we assume that the statutory O.P.A. has inherited some of the powers of the executive O.P.A., this inheritance did not include the power to bring the present action.

The defendant also urges that the action should be prosecuted by the Attorney General rather than by O.P.A. attorneys. But that question is not a serious one in this case. If the Administrator had authority to bring this suit then he could appear by his own attorneys. That is expressly authorized by Section 201(a). But these attorneys may be appointed only “to carry out his functions and duties under this Act.”

Since the court lacks jurisdiction over the subject matter it would not acquire it even if plaintiff’s lawyer were the Attorney General. In other words, we are not here concerned with the question presented in Sutherland v. International Insurance Co., C.C.A.2, 1930, 43 F.2d 969; or S.E.C. v. Robert Collier & Co., C.C.A.2, 76 F.2d 939.

The third count is dismissed for lack of jurisdiction.

In the alternative, defendant moves for a bill of particulars. As to count 1, the motion is denied. I am satisfied that the complaint is sufficient as to enable the defendant to answer. Whatever may be the practice in other districts, it is well established in this district that bills of particulars are not granted to enable a party to prepare for trial, Rule 12(e).

As to count 2, the motion is granted to the following extent: Plaintiff is to serve a bill of particulars wherein he is to identify each of the transactions embraced in paragraph 15 of the complaint by whatever identifying information it may have at its disposal, such as the name of the buyer, date of sale, quantity, brand and destination of shipment. These are illustrative only. The object is to inform the defendant sufficiently so that he may know what transactions are challenged and so that he may scrutinize them and determine whether to admit or deny the allegation. It should not be required to guess which of its transactions are suspect. In all other respects the motion is denied.

2. Motions of Brown et al: These defendants move to dismiss the first count for lack of jurisdiction and its motion is founded on the absence of allegations in the complaint to bring it within the venue provisions of 205(c). They rely upon Gioia v. Clyde, S. S. Co., E.D.N.Y.1924, 3 F.2d 822; White v. Studebaker Corporation, S. D.Cal.1929, 30 F.2d 835, and 17 Hughes, Federal Practice, 1940, Section 19613. There is no need to weigh the authority of these decisions. None of the cited decisions and none of the authorities relied on by Hughes were decided after the Federal Rules of Civil Procedure went into effect.

Rule 8(a), which prescribes the contents of a complaint, does not mention venue. Note 3 to Form 2 annexed to the Rules recites, “Since improper venue is an affirmative dilatory defense, it is not necessary for plaintiff to include allegations showing the venue to be proper.”

See also, 1, Moore’s Federal Practice, page 470 and Note 3 on pp. 454, 455.

The Rules do not affect the law relating to jurisdiction and venue, Rule 82; but they control the form of pleading; and I find nothing therein which requires the pleading of venue in this class of action. The objection is, therefore, overruled.

These defendants move to dismiss count 2 on the same grounds; and, for the same reasons, the motion is denied.

The same defendants also move to dismiss count 2 for insufficiency. The motion is denied for the reasons stated for the denial of a similar motion made by American Distillers.

These defendants also move to dismiss count 3 for lack of jurisdiction. That motion is granted for the reasons already stated. The motion for a bill of particulars is granted with respect to count 2 to the extent indicated on the motion of American Distillers.

3. Motions of Foster & Co.: These defendants move to dismiss all three counts for insufficiency and also count 3 for lack of jurisdiction. The motion to dismiss count 1 is denied. The motion to dismiss count 2 is denied. The motion to dismiss count 3 for insufficiency need not be considered. The motion to dismiss count 3 for lack of jurisdiction is granted. The motion for a bill of particulars is granted only as to count 2, and to the extent indicated on the motion of American Distillers.

4. Motions of Gorman: This defendant moves to dismiss the complaint for insufficiency. The motion to dismiss counts 1 and 2 for insufficiency is denied. Count 3 is dismissed for lack of jurisdiction. The motion for a bill of particulars is granted as to count 2 to the extent indicated on the motion of American Distillers.

5. Motions of Peter Siskind: The motion to dismiss counts 1 and 2 for insufficiency is denied. Count 3 is dismissed for lack of jurisdiction. The motion for a bill of particulars is granted to the extent granted on the motion of American Distillers.

Submit order.

       All references to the complaint are to the amended complaint, filed March 24, 1945.

       The italicized words are not in the complaint; upon the argument, plaintiff offered to amend by adding them.

       15. Between on or about the 6th day of December, 1943 and the 31st day of December, 1943, the defendants sold and delivered distilled spirits, and demanded and received prices therefor which were in excess of the applicable maximum prices established by said Regulations,


author: ABRUZZO, District Judge.

text:
    FISHGOLD v. SULLIVAN DRY DOCK & REPAIR CORPORATION.
    No. C-5700.
    District Court, E. D. New York.
    Aug. 30, 1945.
    Knowlton Durham, of New York City, for plaintiff.
    J. Read Smith, of Brooklyn, N. Y., for defendant.
    William L. Standard, of New York City (M. H. Goldstein, of Philadelphia, Pa., and Herman Rosenfeld, of New York City, of counsel), for Local No. 13, intervenor.
    Witt & Cammer, of New York City (Harold Cammer, of New York City, of counsel), for C.I.O., amicus curiae.
   ABRUZZO, District Judge.

In this particular case it is not in dispute that the plaintiff has complied with all of the technical requirements of the statute. He was a welder working for the defendant. I find that his employment was permanent and steady. He left his employment for induction into the armed service of the United States, and had to leave his position for that purpose. He received a certificate in compliance with the statute, that he had been discharged honorably. It is neither in dispute that he is qualified to perform the duties of the position of welder — he was a first class welder — and it is not in dispute that he made his application for re-employment and that he actually was re-employed after making the request under the Selective Service Act.

The plaintiff claims that he is entitled to be employed under Section 8(b) (B) of the Selective Training and Service Act of 1940, as amended, SO U.S.C.A.Appendix § 308(b) (B), which reads as follows referring to the plaintiff’s position:

“If such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority * * and I take that to mean that this plaintiff is entitled to come back to his work as a first class welder and that he is entitled to come back to work in preference to anybody else who might be working on any of the days that he applied for work, except a veteran in his own category.

The proof in this case is that there were forty-six men and five snappers working on the first day, April 9th, who were all non-veterans, and I hold that the defendant has violated the terms of the statute by not employing the plaintiff on April 9th, and that “status” and “pay,” unless the employer’s circumstances had been changed so as to make it impossible or unreasonable to do so, are merely descriptive words which mean that he had to be taken back as a first class welder and not as a second class welder and that his pay rate would stay the same.

I find, and I do not think there is any dispute, that the defendant’s plant had not so changed that it was impossible or unreasonable to employ this plaintiff, and there is no claim to that effect whatsoever.

In reading subdivision (c), with regard to the benefits which were to be restored to him, it strengthens my belief that that is the way the veteran was entitled to employment under Section 8(b), (B), for the reason that he could not obtain any of the benefits set forth in subdivision (c) until he first got his job back, and Congress intended that he was to be entitled to his job over everybody else but a veteran in his own category. Subdivision (c) strengthens my belief that this interpretation is correct, because it adds the clause that he is to be retained in that position and not discharged for only one year after such restoration, because I am convinced that Congress had in mind that a returning veteran should have the opportunity of having one year in which to rehabilitate himself, and one year to avoid open competition with his fellow employees, due to the fact that for two, three or four years he was away.

I am not going into the equity of that situation; I am not concerned with whom he has to displace. That is the way I interpret the statute, and that is the way I interpret the veteran’s rights under the Selective Service Act. There is no issue here as to the collective bargaining act, but in passing I might state that the collective bargaining act before me conforms exactly, as far as I can see, to the language of the Selective Service Act. So that if there were any issue as to that, the issue would be the same because the language of the collective bargaining act is the same.

I find that on April 9th and the other eight days that the plaintiff was not allowed to work, non-veterans were’ employed on each and every one of those days, and I find nothing to the defense that the shaping up of the plaintiff on these nine days is not a discharge, as Local 13 has indicated. They say that he was not discharged, that he was just let out those days, which is not tantamount to a discharge, but I find no merit in that argument, because I believe that Congress intended that during the period of one year any day that there was work, between veterans and non-veterans the veteran was entitled to the preference and he was not to work only if the defendant had no work or had to choose between World War veterans of World War II.

I find that allowing non-veterans to work these nine days is a violation of the statute and the plaintiff is entitled to judgment for these nine days’ work.

I do not give you a declaratory judgment because the time has expired and you are getting the money judgment that you asked for, nine days, and that judgment will suffice in this particular case. I do not know whether you are entitled to a declaratory judgment. Offhand, I would say no, because you asked for a money judgment and I do not think you can confuse the two. But, be that as it may, it is not necessary in this case.

There has been a defense set up here, or a point made, that because of the word “seniority” used in the Selective Service Act it means that welders who worked in this plant and started their work before the plaintiff would be senior to him and that Fishgold could not replace them. That is the defense Local 13 has advanced to this Court, and, to some extent, is the same defense that the Sullivan Shipyard has advanced. In view of my decision, I do not believe it is necessary to make a finding on this point, but, if I had to, on the facts before me I would still find a judgment for the plaintiff.

I think it is only fair to state my reasons for this conclusion. The proof indicates that forty-six men were allowed to work on April 9th who were non-veterans. Their cards are in evidence. It is very confusing to make a determination based on these cards as to just who is senior, because the cards contain the information that some were tackers, some second class welders, and then eventually became first class welders. The dates and the information contained in the cards are very meager. A witness for the defendant testified that seniority in time of employment plus ability was the yardstick used to measure who should or who should not work.

In the confused state of this particular proof I would be inclined to hold that the burden of proof as to that is on the defendant and it has not sustained it. I say that because of the fact that it would be impossible for the plaintiff, nor could it be expected, that he assume this burden when the only evidence as to that is in the possession of the defendant and it would be almost impossible for plaintiff to have access to it without starting his lawsuit. I believe that Congress intended that when the plaintiff showed a prima facie case, if this defense were a good one, it intended the burden to be upon the defendant, and I believe that is the proper place to put this burden.

In view of my decision, I will respectfully ask counsel to submit findings of fact, conclusions of law, and a decree just as soon as you can.


author: PRAY, District Judge.

text:
    UNITED STATES v. GLACIER COUNTY et al.
    No. 531.
    District Court, D. Montana.
    March 16, 1945.
    John B. Tansil, U. S. Atty., of Billings, Mont., for plaintiff.
    Lloyd A. Murrills, Wilbur P. Werner, and John J. Greene, all of Cut Bank, Mont., and Louis P. Donovan, of Shelby, Mont., for defendants.
   PRAY, District Judge.

The Court has considered the briefs filed in the above entitled cause by counsel for the plaintiff and defendants Manley and wife in support of and in opposition to their motion to dismiss and to strike certain matters contained in the complaint.

After consideration of the pleadings and briefs, in the opinion of the court, the important question here is to determine whether the fee patent was issued on the application or with the consent of the Indian ward, Florence Samples Hall. It has been held by the Circuit Court of Appeals for the 9th Circuit that “consent is the crucial issue to be determined.” United States v. Nez Perce County, Idaho, 95 F.2d 232, 235. The same rule was laid down in other similar cases decided in our own Circuit. Whether application was made or consent given by the patentee will depend upon the forthcoming evidence to be submitted at the trial, at which time the questions raised by the motion may be renewed. Good cause appearing therefor, the motions to dismiss and to strike by the defendant Manley ana his wife and by Glacier County, both being identical, are hereby overruled and denied, with 20 days to answer upon receipt of notice hereof.


text:
    GERARD et al. v. MERCER et al.
    No. 525.
    District Court, D. Montana.
    June 7, 1945.
    S. J. Rigney, of Cut Bank, Mont., for plaintiffs.
    J. N. Thelen and George E. Hurd, both of Great Falls, Mont., for John N. Thelen et ux. and another.
    Lloyd A. Murrills, of Cut Bank, Mont., for Sherburne Mercantile Co.

      Wilbur P. Werner and John J. Greene, both of Cut Bank, Mont., and Louis P. Donovan, of Shelby, Mont., for Glacier County, Mont.
    Murch & Wuerthner, of Great Falls, Mont., for E. J. Lander Co.
    H. C. Hall, of Great Falls, Mont., for W. H. Mercer et ux.
   PRAY, District Judge.

Motions to dismiss the complaint in the above entitled cause on the part of the several defendants therein named are now before the Court for consideration, on briefs submitted by counsel for the respective parties.

Serious questions have been raised and ably presented by counsel for both sides, requiring examination by the Court of many statutes and authorities to determine the merits of the several obj ections to the sufficiency of the complaint to state a claim upon which relief can be granted. Cases embracing similar problems have come before the courts on other occasions but none before this Court wherein the complaint has been subjected to a more searching analysis than in the present instance. While two of the motions rest upon different grounds than the others the ultimate object of all is to accomplish the dismissal of the complaint.

This action is apparently one to quiet title to the several tracts of land described in the complaint, situated on the Blackfeet Indian Reservation, in Montana, for which claims of ownership are asserted by the complainants. The joinder of parties complainant and defendant is allowed under conditions set forth in Rule 20 of the Rules of Civil Procedure in federal court, 28 U.S.C.A. following section 723c. To permit a joinder of this nature, the subject matter of the complaint must relate to the same transaction and the questions raised must be in common to all plaintiffs and all defendants, as provided by the rule.

Counsel for defendants contend that the allegations of the complaint are not within the rule, and from a plain reading of the complaint in connection with the requirements of the rule, there seems to be merit in the claim of non-compliance. Title is asserted by the complainants to ten different tracts of land, and questions will necessarily arise as to the validity of the different fee patents issued; whether application was made therefor, whether consent was given to issuance thereof, or whether there was a finding of competency in respect to the patentee, Some of the defendants may have received conveyances from the complainants directly or through the medium of tax deeds, others perhaps through mortgage foreclosures, and the validity of all such transactions will no doubt be brought into question; and there is no information in the complaint concerning the parties defendant and their relation to the particular tracts of land involved. How it would be possible for the defendants to answer such allegations is not at all clear. In other words, what transactions took place between which complainants and which defendants concerning which particular tract or tracts; followed by the general inquiry, upon what common ground can the defendants intelligently answer the complaint; does it appear from the allegations thereof that any question of law or fact common to all of them will arise in the answer.

The court has considered the interpretation of Rule 20 by complainants and the case cited in support of their position, Hopper v. Lennen & Mitchell, D.C., 52 F. Supp. 319, but fails to discover wherein this decision can be held to overcome the objection raised, as above outlined. It does not appear from the complaint that the transactions involved depend for their validity or invalidity upon the same facts and rules of law. Another point raised is, that it does not appear from the. complaint that complainants were in possession at the time of the commencement of the action. The authorities submitted seem applicable and appear to be conclusive on this question unless the pleading or form of action can be so charged as to show inapplicability. Boston, etc., Min. Co. v. Montana Ore Purchasing Co., 188 U.S. 632, 641, 23 S.Ct. 434, 47 L.Ed. 626; Subirana v. Kramer, 1 Cir., 17 F.2d 725; United States v. Wilson, 118 U.S. 86, 88, 89, 6 S.Ct. 991, 30 L.Ed. 110; Frost v. Spitley, 121 U.S. 552, 556, 7 S.Ct. 1129, 30 L.Ed. 1010. Another objection to the complaint is that it constitutes a collateral attack upon fee simple patents which the complainants have allowed to remain unchallenged for nearly twenty five years. The cases hold that only by a direct attack can a fee simple patent be set aside and annulled. Chatterton v. Lukin, Mont. 154 P.2d 798. In deciding this case the Supreme Court relied upon both federal and state authorities which the court has considered. As a further objection to the complaint defendants contend that it was necessary for complainants by appropriate allegations to bring themselves within the provisions of Sections 352a and 352b, 25 U.S. C.A., and this objection appears to be well taken. Defendants offer further objection to the complaint on the ground that the action is barred by the State statute of limitations, Sections 9011, 9065, and complainants reply that such objection can be taken only by answer, but the rules of civil procedure in federal courts — and this is a question relating to procedure — would seem to permit the defense of the statute of limitations to be raised by motion in a proper case. Rule 9(f), Rules of Civil Procedure, and 35 C.J.S., Federal Courts, § 188, p. 1278, and cases cited, afford an illustration of circumstances in ..which the rule might apply. Harjo v. Empire Gas & Fuel Co., 8 Cir., 28 F.2d 596; Schrimpscher v. Stockton, 183 U.S. 290, 22 S.Ct. 107, 46 L.Ed. 203; Felix v. Patrick, 145 U.S. 317, 12 S.Ct. 862, 36 L.Ed. 719.

But it must be remembered, applying the general rule, that these complainants are to be considered a dependent people and wards of the United States, and that the statute of limitations could not be invoked against them any more than it could be against their general Guardian, the United States. If these lands were not alienable by the Indians then the statute would not run against restricted allotments. But the law permits the Indian to acquire a fee simple title through a patent from the government, under certain conditions set forth in the statutes and regulations, which, if complied with, would supercede the restricted patent theretofore issued.

The rule might apply in some cases and not in others; would it not be difficult to determine whether it would apply in the instant case until suitable amendments have been made to the complaint, supplying the necessary ultimate facts, subsequently sustained by the greater weight of the evidence. Otherwise stated, if the proof should show that the lands, or certain tracts thereof, were not lawfully acquired and that the United States is still holding, as trustee under the restricted patent, then the rule would not apply; but such status can not now be determined under this motion, consequently the court is of the opinion that the motion in this respect should be denied, with the right reserved to renew it in the answer at time of trial.

Further objection is made because of alleged failure to comply with Rule 8 requiring “a short and plain statement of the grounds upon which the court’s jurisdiction depends.” Complainants evidently rely upon Section 41, 28 U.S.'C.A. as authority to give jurisdiction, and in the opinion of the court, which does not require elaboration, there appears to be a federal question disclosed by the complaint.

That the United States is an indispensable party to this action is a proposition seriously advanced by defendants, supported by authorities that seem to afford some justification for the claim; they allege in argument that the purpose here is to obtain a decree by this court that the fee simple patents issued by the United States Nin 1918 are null and void, and that the United States still holds the legal title to the lands in trust for the complainants; that no judgment or decree entered herein in which the United States is not a party can be binding upon it, or affect the rights, duties and obligations of the United States, and that any such judgment may be ignored by the United States or the same matters may be relitigated.

From a perusal of the authorities relied upon by defendants it would seem that the subject of this litigation, which constitutes a collateral attack on fee simple patents issued by the United States, is of material interest to the United States, the Secretary of the Interior and the Commissioner of Indian Affairs, and if the United States were held to be an indispensable party the officials named would be required to explain and likewise justify their exercise of authority under the statutes and regulations in force and here in question. Without the presence of the United States in this action vital issues would remain undecided even though a judgment were entered herein for complainants and the whole subject would remain open for relitigation. The authorities cited would appear to be applicable to this contention and afford ample support of defendants’ objection. Heck-man v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820; United States v. Hellard, 322 U.S. 363, 64 S.Ct. 985, 88 L.Ed. 1326; United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023. In view of the precedents cited, can it be said that the court has authority in this action, in a collateral attack, to enter a judgment to cancel and annul patents issued by the United States to the patentees herein named, which have continued in force and unchallenged for periods of 20 to 25 years, and thereby declare that the United States still holds the lands in question in trust for the Indians, and that such trusteeship must continue, without making the United States a party to the action ? The United States has rights and interests of its own to conserve, and in doing so its officers will disclose what took place in respect to the issuance of restricted and fee simple patents, and related circumstances, which should afford protection to the government as well as the Indian complainants.

Counsel for complainants enquire whether the United States can issue fee patents and permit the Indians to lose their lands “by just sitting there refusing to bring a suit on behalf of the Indian.” Counsel have apparently furnished an additional reason why the United States should be made a party to this action. If the United States has brought suit, in certain instances, in behalf of the Indians, as in the Manley case, United States v. Glacier County, D.C., 62 F.Supp. 27, cited by counsel, and has refused to take action in other similar cases, there might be a substantial reason for such refusal. The inference could be drawn from the statements of counsel that the United States has refused to take action in the instant case, if that be so, all the more reason why the United States should be made a party, otherwise any judgment entered would be inconclusive, and the government through its proper officers might commence an action at any time to set it aside. If the United States has proceeded in some cases and declined to do so in others, apparently of a like character, then because of the authority it possesses it becomes exceedingly important to know what facts and what statutes or regulations were relied upon in this case by the officers who represent the United States in such matters, as, for instance, the Attorney General, the Secretary of the Interior, and Commissioner of Indian Affairs.

It was said in the Heckman case [224 U.S. 413, 32 S.Ct. 433]: “By the act of August 15, 1894, chap. 290 (28 Stat. at L. [286], 305), as amended by the act of February 6, 1901, chap. 217 (31 Stat. at L. 760 [25 U.S.C.A. §§ 345, 346]), Congress authorized suits to be brought against the United States, in its circuit courts, ‘involving the right of any person, in whole or in part of Indian blood or descent’ (with certain exceptions), ‘to any allotment of lands under any law or treaty.’ Sloan v. United States, 193 U.S. 614, 24 S.Ct. 570, 48 L.Ed. 814. Prior to the amendment of 1901, the United States could not be sued in such a case. But the amendment required that 'in said suit the parties thereto shall be the claimant as plaintiff and the United States as party defendant.’ Commenting upon this, the court said in McKay v. Kalyton, 204 U.S. 458, 469, 27 S.Ct. 346, 51 L.Ed. 566, 571: ‘Nothing could more clearly demonstrate than does this requirement, the conception of Congress that the United States continued, as trustee, to have an active interest in the proper disposition of allotted Indian lands, and the necessity of its being made a party to controversies concerning the same, for the purpose of securing a harmonious and uniform operation of the legislation of Congress on the subject.’ And in Re Heff, 197 U.S. 488, 509, 25 S.Ct. 506, 49 L.Ed. 848, 850, this court said: ‘In United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532, we sustained the right of the government to protect the lands thus allotted and patented from any incumbrance of state taxation. Undoubtedly an allottee can enforce his right to an interest in the tribal or other property (for that right is expressly granted), and equally clear is it that Congress may enforce and protect any condition which it attaches to any of its grants. This it may do by appropriate proceedings in either a national or a state court.’ * * * And it could not, consistently with any principle, be tolerated that, after the United States, on behalf of its wards, had invoked the jurisdiction of its courts to cancel conveyances in violation of the restrictions prescribed by Congress, these wards should themselves be permitted to relitigate the question. * * * It will be competent for the court, on a proper showing as to any of the transactions that provision can be made for a return of the consideration, consistently with the cancellation of the conveyances and with securing to the allottees the possession of the restricted lands in accordance with the statute, to provide for bringing in as a party to the suit any person whose presence for that purpose is found to be necessary.”

In the Candelaria case [271 U.S. 432, 46 S.Ct. 563], the court said: “The Indians of the pueblo are wards of the United States, and hold their lands subject to the restriction that the same cannot be alienated in anywise without its consent. A judgment or decree which operates directly or indirectly to transfer the lands from the Indians, where the United States has not authorized or appeared in the suit, infringes that restriction.”

In United States v. Hellard, 322 U.S. 363, 64 S.Ct. 985, 988, 88 L.Ed. 1326, Mr. Justice Douglas, speaking for the court, held substantially to the same effect, when he stated: “But, as we have said, the Act in question purports to be no more than a jurisdictional statute. It fails to say that the United States is not a necessary party; nor does it suggest that the United States or its officers are confined to a limited role in the proceedings. Cf. United States v. Candelaria, 271 U.S. 432, 444, 46 S.Ct. 561, 563, 70 L.Ed. 1023. We must read the Act in the light of the history of restricted lands. That history shows that the United States has long been considered a necessary party to such proceedings in view of the large governmental interests which are at stake. We will not infer from a mere grant of jurisdiction to a state or federal court to adjudicate claims to restricted lands and to order their sale or other distribution that Congress dispensed with that long-standing requirement. The purpose to effectuate such a major change in policy must be clear.”

Having considered the facts alleged in the complaint in connection with the several motions for dismissal, and the law appearing to be applicable, in the opinion of the court this action should be dismissed without prejudice, and such is the order herein.


author: BONDY, District Judge.

text:
    THE RIO NOVO.
    District Court, S. D. New York.
    March 29, 1945.
    Horace T. Atkins, by William Weymar, Jr., both of New York City, for libellant.
    Haight, Griffin, Deming & Gardner, by Herbert M. Statt, and John T. Casey, all of New York City, for “Rio Novo”
   BONDY, District Judge.

After reading the transcript of the stenographer’s minutes of the trial, I adhere to the opinion expressed at the trial.

The master of the “Rio Novo” testified that before the nuts were loaded thereon they had been screened alongside his ship, that when they were put aboard they apparently were clean, dry and sound, that he did not see any that were wet or mouldy and that had he observed any that were wet or mouldy he would have made a notation on the bills of lading to that effect.

In the bills of lading covering the shipment it is stated that the nuts were shipped “in apparent good order and condition” and that they were “to be delivered in like good order and condition at the port of New York.” Stamped on the bills of lading was the statement “Actual condition unknown, liable to deterioration.” It is also stated that the carrier shall not be liable for loss or damage arising from the nature of the goods, that the shipment is subject to the provisions of the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1300 et seq., and to the exemption from liability contained in the Act of Congress of the United States approved on the 13th of February, 1893, 46 U.S.C.A. § 190 et seq.

The master also testified that he had never before been on a ship that carried Brazil nuts, that every day during the voyage he looked at the nuts and noticed that some were sweating more than others, that the trimmers would pick out any bad nuts and throw them overboard and that he first saw mould on them when their discharge was started.

A witness in the employ of the plaintiff corporation ás an examiner, testified that on her arrival at Staten Island he boarded the “Rio Novo”, that the nuts showed an unusual amount of sweat, that on their discharge on the dock there was heat in the nuts, that they were in a dangerous condition, that they showed green mould and white mould and had to be shovelled to get the heat out of them, that he notified the ship’s agent and that following instructions he engaged three or four men to shovel them right away, who culled the very bad nuts that were yellow and mouldy from the sweat.

Another witness in the employ of the li-bellant who examines and passes on all merchandise brought by the libellant, and who has been handling Brazil nuts for about 30 years, testified that the nuts were “very sweaty, and some were wet and mouldy” and most lots contained heat, that when he saw them he saw that he had to go right to work to save as many as possible, and he gave instructions not to spare any expense but to go right ahead and turn them over and that he knew that trouble had started when he saw the heat and mould, which was more than average and more than usual.

The evidence discloses that the “Rio Novo” was seaworthy, well ventilated, well equipped and fit for the carriage of delicate Brazil nuts, that the nuts were properly stowed in all bins and that there was no negligence in the care of the nuts other than failure to trench them sufficiently.

Loading of the nuts was begun June 19, 1940, at Manaos. The log does not disclose whether each bin was fully loaded at one time, or whether the bins were only partially loaded at a time, with the effect that the loading at different times might have served the same purpose as trenching, by exposing different nuts to the air in the hold when so loaded.

The master testified that although the nuts were trimmed, they were not trenched during the loading of the ship between June 19th and July 2d, that two trimmers employed at Manaos July 2d, when the ship sailed, trenched from 7:00 A.M. to 5:00 P.M. every day after the ship left Manaos, until the ship arrived at Para on July 6th, where he took on another trimmer because he found the work would be too much for two men and that it was too hot for two trenchers to do the trenching during the whole voyage. Although the log discloses that the trimmers trenched on certain days and omits to state anything about trenching on other days, the master testified that he saw the trimmers trench every day and that they would trench all compartments at least every second day.

The ship sailed from Para July 8th and reached the port of New York July 21st. It discharged some of its cargo in Jersey City between July 22d and July 24th, and discharged the rest of her cargo, including the nuts involved in this suit, at Staten Island between the 25th and 29th of July.

The evidence does not disclose whether or not any of the nuts were left in any of the bins untrenched during the greater part of such time.

The nuts were delivered otherwise than in apparently good external condition. They were delivered wet and mouldy. They received very little if any trenching during the two weeks that the ship was at Manaos. The proof as to the trenching while in transportation is not very satisfactory. The probability is that the nuts were of the current season’s crop. They were delicate and probably would have disclosed an apparent change in external condition if they had been kept in the jungle over a season.

It is not probable that the ship’s agent would have been notified and the owners would have incurred the expense of shoveling and trenching in the way in which they did if they were not unusually mouldy and wet.

The court concludes that the defendant has failed to overcome libellant’s prima facie case in that it failed to show that it used reasonable care in the trenching of the nuts.

There accordingly should be a decree in favor of the libellant for the expenses it reasonably incurred in reconditioning the shipment to minimize the loss.