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26 F.(2d) 161

HAMLIN v. GOVERNMENT OF CANAL

ZONE ex rel. PARKER.

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2. Judges 49(1)-Special judge appointed by Governor of Panama Canal held not disqualified in proceeding involving right of deputy marshal, also appointed by Governor (Code Civ. Proc. Canal Zone, § 8).

Special judge appointed by Governor of Panama Canal, filing affidavit negativing existence of grounds of disqualification prescribed by Code Civ. Proc. Canal Zone, § 8, held not disqualified in proceeding by government involving right of deputy marshal appointed by Governor to exercise right of office; it not being made to appear that Governor of Panama Canal was a party in interest.

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5. United States marshals

3-Action of Governor of Panama Canal in removing deputy from office for refusing to obey orders of court and appointing another to position held valid.

Action of the Governor of the Panama

Canal in removing deputy marshal from his po sition for refusal to obey orders of court directing deposit with clerk, or in registry of the court, of bonds taken by marshal in execution of process in admiralty causes, and disobeying orders with reference to process, and in appointing another to that position, held valid.

26 F. (2d)-11

6. United States marshals 3-Civil action is maintainable to oust deputy marshal removed from office by Governor of Panama Canal (Code Civ. Proc. Canal Zone, §§ 208, 212).

Under Code Civ. Proc. Canal Zone, §§ 208, 212, authorizing a civil action against persons usurping, or unlawfully holding a public office, a civil action is maintainable to oust from office a deputy marshal removed from his position

by the Governor of the Panama Canal; the po

ferred by appointment of Governor. sition of deputy being a public civil office con

7. United States marshals 3-Status of deputy marshal in civil service did not affect power of Governor of Panama Canal to remove him (Civil Service Act [22 Stat. 403]).

Status of deputy marshal as a classified civil servant up to the time of his appointment held not to affect power of Governor of the Panama Canal to remove him from position of deputy marshal; no question as to rights under Civil Service Act (22 Stat. 403), being involved.

Appeal from and in Error to the District Court of the United States for the Canal Zone; James W. Blackburn, Judge.

Action by the Government of the Canal Zone, on the relation of Charles L. Parker, against Frank T. Hamlin and another. Judgment for plaintiff, and defendant Hamlin appeals and brings error. Modified, and, as modified, affirmed.

Henry P. Dart, Jr., of New Orleans, La., Chauncey P. Fairman, of Cristobal, Canal Zone, and F. Edward Mitchell, of Washington, D. C. (F. Edward Mitchell, of Washington, D. C., C. P. Fairman, of Cristobal, Canal Zone, and Dart & Dart, of New Orleans, La., on the brief), for appellant and plaintiff in error.

John O. Collins, Sp. Asst. Dist. Atty., of Ancon, Canal Zone, and Charles J. Riley, Dist. Atty., of St. Louis, Mo., for appellee and defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge. This was an action or proceeding brought by the government of the Canal Zone, on the relation of Charles L. Parker, against Frank T. Hamlin, the appellant, and Irvin M. Lieser, the relief sought including that granted by the judgment appealed from, which adjudged that the relator is entitled to and may exercise the powers and duties of deputy marshal of the Canal Zone, and that the appellant, Hamlin, be ousted and excluded from the office of deputy marshal for the Canal Zone. The District Judge of the Canal Zone certified his disqualification, and the case was tried by the Special District Judge, appointed to act in case of the absence, dis

ability, or disqualification of the District Judge. Objections filed by the appellant to the Special District Judge sitting in the trial of the case were overruled. A demurrer to the complaint was overruled as to appellant, was sustained as to the defendant Lieser, and the action was dismissed as to the latter.

The pleadings and proofs show the following: For several years prior to March 1, 1927, appellant was deputy marshal of the Canal Zone, having been appointed to the position by the Governor of the Panama Canal. After the making by the District Judge of the Canal Zone to the Governor of the Panama Canal of representations as to the failure or refusal of the appellant as deputy marshal to comply with orders of the court as to process issued by the court, including orders as to the disposition of bonds taken under process in admiralty cases pending in the court, the Governor, on February 24, 1927, removed the appellant from the position of deputy marshal, and appointed appellee Parker to that position, after Lieser, the marshal, who then was physically incapacitated from performing the duties of his office, had refused to submit a nomination for a successor to the appellant. After appellee's appointment by the Governor, the marshal refused to recognize him as deputy marshal, the appellant continued to use the office or quarters assigned for use of the marshal and his deputy, and appellee was excluded from the use of those quarters. The assignments of errors raise the questions of the propriety of the overruling of the objection made to the Special District Judge sitting in the case, as to the power or authority of the Governor of the Panama Canal to dismiss a deputy marshal without the consent of the marshal, and as to the right or jurisdiction of the court below to entertain an action or proceeding to oust a deputy marshal after his dismissal by the Governor.

The objection to the Special Judge sitting in the case was based on the grounds that, the Governor of the Panama Canal being a real party in interest in the case, and the Special Judge being the holder of a permanent office or position, that of Magistrate of the Balboa Division of the Canal Zone, to which position he was appointed by the Governor, and from which he may be removed by the Governor, the conditions of the Special Judge's regular employment and his tenure of office are such as to cause bias and prejudice in favor of the real party in interest, the Governor of the Panama

Canal, whose appointee the relator is, with the result that the Special Judge may be subjected to such conscious or unconscious influence or suggestion as will serve to prevent a fair and impartial trial of the issues in this cause. Following the filing of that objection, the Special Judge made and caused to be filed an affidavit, which stated as follows:

"That he is not pecuniarily interested in this action or proceeding, nor related to any party thereto within the sixth degree of consanguinity or affinity, computed according to the rules of the civil law, nor in which, nor in the matter out of which the litigation arises has he been counsel, nor in which has he at any time presided in any inferior judicature.

"Affiant further says that he has expressed no opinion as to the facts of this case.

"Affiant further says the statement to the effect that the conditions of his employment and the tenure of his office as magistrate are such as to cause bias and prejudice in favor of the real party at interest herein, and that affiant may be subjected to such conscious or unconscious influence or suggestion as will serve to prevent a fair and impartial trial of the issues in this cause, is wholly untrue."

[1, 2] That affidavit negatived the existence of each of the grounds of disqualification prescribed by the applicable statute dealing with the subject of disqualification of judges. Code of Civil Procedure of Canal Zone, § 8. That affidavit was not rebutted by any evidence of the existence of a prescribed ground for disqualifying the Special Judge. The fact that a judge is the appointee of an official who appointed to a public office or employment another person whose right to exercise the functions of that office or employment is brought into question in a suit or judicial proceeding does not have the effect of disqualifying such judge to act in that suit or proceeding. It was not made to appear that the Governor of the Panama Canal was a party in interest in this suit, nor that the Special Judge had any disqualifying interest in this suit or on any other ground was legally incompetent to act as a judge therein. This being so, the objection under consideration was properly overruled.

[3-5] Except in the cases of designated officials or employees of the Panama Canal and of the Government of the Canal Zone, whose appointment or employment is specially provided for, "all other persons necessary

for

26 F.(2d) 161

the government

of the Panama Canal and Canal Zone shall be appointed by the President, or by his authority, removable at his pleasure," etc., and "the President is authorized

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govern, and operate the Panama Canal and govern the Canal Zone, or cause them to be governed and operated, through a Governor of the Panama Canal and such other persons as he may deem competent to discharge the various duties connected with the ⚫ operation, government and protection of the Canal and Canal Zone." Panama Canal Act, § 4, 37 Stat. 561, Comp. Stat. § 10040 (48 USCA § 1305). An executive order, made February 2, 1914, provides that: “All appointments shall be made by the Governor of the Panama Canal or by his authority, except the District Judge, the district attorney, the marshal, clerk of District Court, and his assistant.

The Governor may discharge an employee at any time for cause, and terminate a provisional appointment when the exigencies of the service so require." Executive Orders relating to Panama Canal, p. 159, §§ 8, 9.

No provision of the Panama Canal Act or of any other act of Congress authorizes the marshal of the Canal Zone to appoint a deputy marshal. Under the quoted provisions, the Governor of the Panama Canal has authority to appoint a deputy marshal when the services of such a deputy are required, and to discharge a deputy marshal for cause. Fullerton v. Government of Canal Zone (C. C. A.) 8 F. (2d) 968; De Jan v. De Jan (C. C. A.) 18 F. (2d) 690. It is not to be doubted that the services of a deputy marshal are required and the appointment of one is warranted where the marshal is physically incapable of perform ing the duties of his office and has no deputy who is obedient to lawful orders of the court with regard to process issued out of the court, or that a deputy marshal's refusal or failure to conform to legal orders of the court constitutes cause for his removal or discharge. The power conferred on the Governor to appoint a deputy marshal to render required public services is not dependent upon the appointee being acceptable to the marshal, and the Governor's power to remove or discharge a deputy marshal is not made subject to the marshal's veto.

It was disclosed that the appellant failed or refused to obey orders of the court directing the deposit with the clerk or in the registry of the court of bonds taken by the marshal or by the appellant as his deputy

in the execution of process issued in admiralty causes pending in the court, and otherwise was insubordinate, in that he disobeyed orders of the court with reference to its process handled by the marshal's office. Such conduct is incompatible with the duty of a deputy marshal as a ministerial officer of the court. Being a ministerial officer of the court, whose process is received by him for execution, a deputy marshal is subject to the orders of that court, made in a case within its jurisdiction as to parties and subject-matter, and such orders are sufficient to protect him in complying therewith. Matthews v. Densmore, 109 U. S. 216, 3 S. Ct. 126, 27 L. Ed. 912. A deputy marshal's failure or refusal to comply with such orders is not excused by the fact that the marshal does not approve of those orders or forbids compliance therewith. We conclude that the acts of the Governor of the Panama Canal in removing the appellant from the position of deputy marshal and in appointing appellee to that position were valid.

[6] "A civil action may be brought in the name of the government of the Canal Zone: 1. Against a person who usurps, intrudes into, or unlawfully holds or exercises a public civil office"; and "a person claiming to be entitled to a public office, unlawfully held and exercised by another, may bring an action therefor." Code of Civil Procedure of the Canal Zone, §§ 208, 212. The position of deputy marshal of the Canal Zone is a public civil office, as it is a public station or employment in a civil capacity, conferred by the appointment of government. United States v. Hartwell, 6 Wall. 385, 393, 18 L. Ed. 830. The contention that the instant action or proceeding was not maintainable in the court below is without merit.

[7] The record discloses that appellant was in the classified civil service of the Canal Zone up to the time of his appointment to the position of deputy marshal. His status as a classified civil servant did not affect the power of the Governor of the Panama Canal to remove him from the position of deputy marshal. No question as to the appellant's rights under the Civil Service Act (22 Stat. 403) is presented by the record in this case.

Pursuant to the prayer of a petition, which alleged that the decree under review in effect removed said Lieser from the office of marshal and placed appellee in that office, this court entered a rule or order prohibiting the Special Judge from proceeding

further in this cause until further ordered by this court, and requiring the Special Judge to show cause at a named time and place why the writ of prohibition should not be made perpetual. The return to that rule to show cause and the decree presented for review negative the truth of the material allegations of the petition for the writ of prohibition. The rule to show cause is discharged, with costs against the appellant.

The record shows no reversible error. The decree is modified to make it without prejudice to the right of the appellant to claim benefits to which he may be entitled under the Civil Service Act; and, as so modified, the decree is affirmed.

TEXAS CO. v. BRICE.

Circuit Court of Appeals, Sixth Circuit. May 18, 1928.

No. 4909.

1. Appeal and error 927 (7)—In determining propriety of refusal of directed verdict for defendant, appellate court must view evidence in light most favorable to plaintiff.

In determining propriety of court's refusal to direct verdict for defendant, appellate court must view evidence in light most favorable to plaintiff.

2. Master and servant 330 (3)-Evidence held to show employee of oil company's commission agent injuring plaintiff's husband stood in no privity with oil company but was servant of agent only.

In action against oil company for damages for alleged negligent killing of plaintiff's husband through negligence of defendant's alleged agent, evidence held to show that employee of defendant's commission agent, driving truck across railroad track at time of accident, was not in privity with defendant, but was servant of agent only, and defendant was not responsible for his acts, notwithstanding instructions in defendant's book of rules, dictating details of how agent's work should be carried on and how his drivers should cross railroad track.

3. Master and servant ~301(2)—That oil company furnished its commission agent suggestions for guidance of his employees did not make his employee oil company's agent. That defendant oil company furnished information and suggestions to its commission agent for use and guidance of his employees did not make his employee, alleged to have caused death of plaintiff's husband, defendant's agent, where defendant did not itself directly supervise or control any of actions of such employee. 4. Master and servant 301 (2)-Oil company held not estopped to claim driver of truck, having defendant's name thereon, causing inJury, was not its agent, but was commission agent's employee.

Where oil truck, which caused collision with train, resulting in death of plaintiff's husband,

had defendant's name and trade-mark thereon, defendant oil company was not estopped to claim that driver of truck, employed by defendant's commission agent, was not defendant's agent. 5. Master and servant 301(1)-Tort liability of supposed principal under rule of respondeat superior rests upon fact of agency, not appearance thereof.

Tort liability of supposed principal, under rule of respondeat superior, rests, not upon appearance of agency, but upon fact of agency. 6. Principal and agent 24-Existence of agency is question for court, when contract is in writing and there is no dispute regarding acts, etc.

Existence of agency is question for court, when contract is in writing and there is no dispute or room for disputed inference as to the other documents, correspondence, and acts which might sometimes bear on construction. 7. Courts372(3)—Federal court was not obliged to follow state decision' on question of agency between truck driver causing injury and defendant.

Circuit Court of Appeals was not bound to follow state decisions on question regarding existence of agency between driver of truck caus

ing injury to plaintiff's husband, resulting in his death, and defendant.

In Error to the District Court of the United States for the Middle District of Tennessee; John J. Gore, Judge.

Action by Mrs. M. M. Brice against the Texas Company. Judgment for plaintiff, Reversed and and defendant brings error. remanded.

John B. Keeble, of Nashville, Tenn. (J. M. Anderson, of Nashville, Tenn., on the brief), for plaintiff in error.

W. H. Washington and Seth M. Walker, both of Memphis, Tenn. (Thomas N. Greer, of Shelbyville, Tenn., on the brief), for defendant in error.

Before DENISON and MOORMAN, Circuit Judges, and TUTTLE, District Judge.

TUTTLE, District Judge. This is an action by the defendant in error, plaintiff in the court below (hereinafter called the plaintiff), a resident citizen of Tennessee, as administratrix of the estate of her husband, Mason M. Brice, deceased, to recover from the plaintiff in error, defendant below (hereinafter called the defendant), a Texas corporation, damages for the alleged negligent killing of said deceased by said defendant, through the negligence of an alleged agent or servant of the defendant.

It is undisputed that the death of plaintiff's decedent, which occurred while he was acting as fireman in the cab of a fast passenger train locomotive, resulted from injuries

26 F.(2d) 164

received in a collision between said train and a motortruck, carrying several hundred gallons of gasoline and oil, operated by a driver claimed to have been the representative of the defendant, and that such collision was caused by the negligence of said driver. The only disputed question involved was, and is, whether the defendant is liable for such negligence. At the conclusion of the proofs, the defendant made a motion for a directed verdict in its favor, on the ground that there was no evidence tending to show the existence of such relation between the defendant and said driver as would make the former liable for the negligence of the latter. The trial judge denied this motion, and submitted this question of liability to the jury, which returned a verdict for the plaintiff in the sum of $32,000, and, to review the judgment entered on such verdict, the defendant has duly brought the case to this court by writ of er

ror.

[1] The first assignment of error is based on the refusal of the trial court, to which exception was duly taken by the defendant, to direct a verdict for the defendant on the ground just mentioned. With respect to the subject-matter of this assignment, the evidence, viewed, as it must be, in the light most favorable to the plaintiff, showed the following material facts:

In July, 1925, defendant was engaged in selling gasoline and oil in various parts of the United States, including the state of Tennessee, through local oil depots in charge of selling agents, of whom it had two classesso-called salaried agents, receiving a fixed, regular salary, and so-called commission agents, receiving a commission dependent on the amount of sales made by them. Both classes of such agents were subject to general supervision and control by the defendant, the salaried agents to a somewhat greater extent than the commission agents, and both had, with the knowledge and consent of the defendant, servants assisting them, including the drivers of motortrucks used in delivering the gasoline and oil so sold. These drivers and other servants were employed, discharged, paid, and directly controlled, in connection with the salaried agents, by the defendant, and, with respect to the commission agents, by such commission agents themselves, although even as to the latter agents the defendant prescribed certain conditions and requirements to be observed by such commission agents in their regulation of their own servants. On July 6, 1925, the defendant made a written contract with one Hutton, by which he was appointed its commission

agent for the sale of its products in the town of Shelbyville, in Tennessee. The only language in such contract which related to the employment of agents or servants to assist Hutton was contained in the following provision thereof: "If a commission agent, you will accept full responsibility for, and indemnify the company against, all acts or omissions of your agents, employees, and servants." Hutton employed a helper, one Nelson, to assist him about the oil station and to drive a motortruck owned by Hutton and used by him in delivering the defendant's products which he sold. Nelson was hired, paid, and directed by Hutton alone, and the defendant took no part in employing, paying, or directing him, although it knew of, and consented to, his employment by Hutton. The truck referred to was owned by Hutton, although the name and trade-mark of the defendant had been painted on its sides, as well as on the oil station and the tanks and other equipment used in connection therewith. The current state motor license of the truck had been paid for by Hutton individually, but issued in the name of defendant, at the request (not shown to have been authorized by defendant) of an employee of Hutton. The defendant had paid for, and held, the current state privilege licenses required for the operation of the oil depot. On July 17, 1925, while Nelson was driving the truck along the public highway, to deliver a quantity of gasoline which had been ordered by a customer, but which still belonged to defendant, he negligently (as the jury on sufficient evidence determined) drove such truck upon a railroad track in front of the rapidly approaching train already mentioned, with the aforementioned results.

We think it unnecessary to decide or consider whether Hutton was, as to the defendant, an agent, as claimed by plaintiff, or an independent contractor, as claimed by the defendant, although, of course, the question of defendant's status as against this particular claim is not to be controlled by any matter of nomenclature. Assuming, as we may do for the purposes of this opinion, that his relation to the defendant was that of an agent to a principal, it by no means follows that the relation between his employee, whose negligence caused the death of the plaintiff's decedent, and the defendant, was such as to make the defendant liable for such negligence. The test as to such liability must, of course, be whether the defendant either expressly or impliedly authorized Hutton to employ this driver as the agent or servant of the defendant. We have searched the entire

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