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record in vain for any evidence which would warrant a finding or proper inference of any such authority. It is obviously not enough that the jury might have properly found that the defendant knew of, and consented to, the employment of such driver by its said agent (if Hutton was its agent). It is, indeed, sometimes loosely stated in text-books and even in opinions by courts that consent by a principal that his agent may employ agents makes the agents so employed the subagents of the principal, so as to fasten upon him liability for their acts within the scope of their employment. That, however, is too broad a statement of the applicable rule, because it overlooks the important distinction between a principal's consent, on the one hand, that his agent may employ an agent or servant on behalf of the principal, and the principal's mere consent, on the other hand, that the agent may employ his own agent or servant, who may even assist him in performing his duties to said principal, but who remains, nevertheless, the representative of only his immediate employer, and stands in no relation to the principal of such employer. Prof. Mechem, in his admirable treatise on the law of agency, has in the following language well pointed out the true principles involved (pages 240, 242, 1447):

"The principal may, of course, authorize the employment of the subagent on his account and as his agent and thus create privity of contract between them. But he may also do less. He may occupy a middle ground. He may clearly be willing to consent that his agent may perform the duty through a substitute employed at the agent's risk and expense, when he would not be willing, at his own risk and expense, to have such a substitute employed.

"Thus a principal who has put goods for sale into the hands of an agent-the agent having no power to delegate his authority, and it being perhaps a wrongful act on the part of the agent to intrust them to any one else and a wrongful act on the part of the latter to exercise any control over them may be willing that his agent may employ a subagent so far that the intrusting of the goods by the agent to the subagent, or the exercise of control over them by the latter, or the latter's sale of them upon the terms prescribed to the agent, may all be acts done with the principal's consent, and yet not done by a person who stands in any contractual relations to the principal, or who can look to the principal for compensation, or for whose promises or conduct the principal would be responsible to third persons.

The principal may consent to the employment of subagents on such terms as please him, and, where he has consented only upon the express or implied condition that the subagent shall not be deemed his agent, that condition, as between the parties, must control. * In order to justify the inference of an employment as the principal's agent, the circumstances must be such as to reasonably warrant the conclusion that the principal has taken the subagent as his agent, thereby ordinarily becoming liable for his compensation, assuming responsibility for his conduct, accepting the subagent's responsibility to him, and releasing the original agent from such responsibility." [2] We think the present record barren of any evidence warranting an inference that the defendant consented or intended that the truck driver here involved, whom it neither employed, paid, nor directed, and for whose negligence it had expressly disclaimed liability in its contract with the employer of such driver, should be its own agent or servant. We think that, on the contrary, the evidence affirmatively indicates that it was understood by the defendant, by its commission agent, and by said driver, that the latter was the servant of only the man by whom he was employed, that he stood in no privity with the defendant, and that for his acts the defendant was not responsible. Sams v. Arthur, 135 S. C. 123, 133 S. E. 205; Barnard v. Coffin, 141 Mass. 37, 6 N. E. 364, 55 Am. Rep. 443; National Bank of the Republic v. Old Town Bank of Baltimore, 112 F. 726 (C. C. A. 7); Union Casualty & Surety Co. v. Gray, 114 F. 422 (C. C. A. 3).

Nor do we overlook the instructions found in defendant's book of rules, dictating details of how Hutton's work was to be carried on, reaching even the specific matter of how his drivers should cross the railroad track. To give force to these things is to overlook the clear facts. Defendant did not hire Nelson, or pay him, or become responsible for his pay, or have the power to discharge him, or the power to tell him how to do his work. All these things were for Hutton, Defendant could enforce its regulations only through Hutton and through the probability that he would lose his agency if he did not compel his agent to respect the wishes of his principal. The question is whether the power of control over the subagent is expressly or impliedly given to the alleged principal. [3] Neither the fact that the defendant furnished information and suggestions to its commission agent for the use and guidance of his employees, nor the conduct of the de

26 F.(2d) 164

fendant in prescribing rules and instructions governing the manner in which such commission agent should regulate and direct such employees, can affect the situation where, as here, it is apparent that the defendant did not itself directly supervise or control any of the actions of said employees. The truck drivers and other servants in the employ of this commission agent were in the possession of, and were handling, the gasoline, oil, and other property of the defendant, and were in a position, with respect to such property, where their conduct relative thereto might cause the defendant serious damage and injury in the loss or destruction of such property. It was therefore natural and reasonable that the defendant should wish to impose and insist upon rules and regulations designed for the protection of the rights and

interests of the defendant in that connection; and the issuance of instructions looking to that end cannot be regarded as inconsistent with the absence of such a relation between the defendant and such employees

as would make the former liable for the acts of the latter.

Plaintiff relies upon this same clause just referred to--that by which Hutton agreed to indemnify defendant against "all acts or omissions" of agents like Nelson-as supporting an inference that defendant was to be liable to third parties for the negligence of Nelson; else, it is said, there would be no occasion to "indemnify." If this clause could refer only to claims by third parties for torts, the inference might be plausible; but it may well refer to, and be fully satisfied by reference to, injuries to defendant's property intrusted to Hutton, or even to acts which might mislead third parties to their prejudice. Hence the presence of this clause is not inconsistent with our conclusion. [4] It is clear that the presence of the defendant's name and trade-mark upon the truck referred to in no way misled or prejudiced plaintiff's decedent; and there is therefore no room here for the application of any principle of estoppel which would form the basis of liability to the plaintiff on the part of the defendant on that ground. Goble v. American R. Express Co., 124 S. C. 19, 115 S. E. 900; Jung v. New Orleans Railway & Light Co., 145 La. 727, 82 So. 870; Gulf Refining Co. v. Harris, 30 Ga. App. 240, 117 S. E. 274.

[5] The tort liability of a supposed principal under the rule of respondeat superior rests, not upon the appearance of agency, but upon the fact; and hence all decisions involving a holding out of authority as affecting liability for contracts or frauds are not pertinent.

[6] The existence of agency may often be a question of fact requiring submission to the jury; not so when the 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 upon construction. [7] We have not overlooked, but have carefully examined, the very numerous authorities cited by plaintiff. In some of them, like Singer v. Rahn, 132 U. S. 518, 10 S. Ct. 175, 33 L. Ed. 440, and Standard v. Parkinson (C. C. A. 8) 152 F. 681, the injury had been caused by the very person who had contracted with the defendant, and the question was whether the contract was one of agency or tion between a tort by an agent and one by one giving independent status. The distinca subagent was not involved. In no one of them did it appear that, by contract between the agent and the alleged principal, the subagents had been expressly made the agents of the agent and not of the principal, or that the agent assumed to the principal all responsibility for the acts of these subagents. Lacking such express provision, it may often be proper to infer, as some of these cited cases do, that there is privity between the principal and the subagent; not so when "the status of each party is fixed by the unmistakable word." Atwell, D. J., Associated Ind. Ins. Co. v. Ellis (D. C.) 16 F.(2d) 464, 470, affirmed (C. C. A. 5) 24 F.(2d) 809. If the late Tennessee case, Gulf Co. v. Huffman, 155 Tenn. 580, 297 S. W. 199, should be considered an exception, of which we are not sure, we could hardly follow it; and, upon a question of general law like this, we are not under obligation to follow state decisions. B. & O. R. Co. v. Baugh, 149 U. S. 368, 13 S. Ct. 914, 37 L. Ed. 772; Taxicab Co. v. Taxicab Co. (April 9, 1928) 48 S. Ct. 404, 72 L. Ed.

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It results that the trial court erred in denying defendant's motion for a directed verdict, and the judgment must therefore be reversed, and the cause remanded for further proceedings not inconsistent with this opin

ion.

BENWAY v. PEOPLE OF MICHIGAN.

Circuit Court of Appeals, Sixth Circuit. May 16, 1928.

No. 5075.

1. Criminal law 564 (8)-Evidence held to sustain venue of county of prosecution as to alleged shooting of occupant of boat in river between county of prosecution and another County (Comp. Laws Mich. 1915, § 15606).

In prosecution for manslaughter, evidence as to shooting of deceased by defendant engaged as prohibition officer, while deceased was occupying boat on Huron river separating Monroe and Wayne counties, held sufficient to give venue of prosecution to courts of Monroe county, under Comp. Laws Mich. 1915, § 15006.

2. Criminal law 1033 (2)-Defendant, failing to object on court's query whether jurisdiction was disputed, could not on appeal predicate error on failure to prove venue.

Where counsel for defendant raised no objection on court's query as to whether there was any dispute raised about jurisdiction, defendant could not, on appeal, predicate error upon alleged failure of state to prove venue. 3. Criminal law ~822(17)-Court's statement that count in indictment for assault with dangerous weapon merely charged assault, held not prejudicial, in view of entire charge.

In prosecution under indictment charging in three counts manslaughter, assault with dangerous weapon with intent to do great bodily injury, and assault with dangerous weapon without such intent, statement of court in its instructions, "You pass on to the third count, which merely charges assault," held not prejudicial for use of word "merely," in view of instructions as a whole.

4. Criminal law 437-Map prepared by witness from survey personally made held admissible to illustrate testimony as to place of alleged shooting.

In prosecution for manslaughter, admission in evidence, for purpose of diagram or means of illustrating testimony as to place of shooting, of map prepared by witness from survey personally made, held not error.

5. Indictment and information ←129(1)—Refusal to quash indictment in three counts charging manslaughter, assault with dangerous weapon with intent to do great bodily harm, and assault with dangerous weapon without such intent, held not error.

Refusal of court to quash indictment charging in three counts manslaughter, assault with dangerous weapon with intent to do great bodily harm, and assault with dangerous weapon without intending to commit murder and without intending to inflict great bodily harm, held not error, where same act formed foundation of

each count.

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of offense arising from the same transaction, may be joined as separate counts in a single indictment.

7. Criminal law 327-Prosecution has bur. den of proof throughout.

In a criminal case, the burden of proof lies wholly upon the prosecution, and burden includes risk of nonpersuasion of jury as to every essential ingredient of the crime.

8. Homicide 310(2)—Refusal to withdraw counts charging assault with dangerous weapon held not error, notwithstanding jury acquitted defendant of manslaughter.

In prosecution under indictment, charging in three counts manslaughter, assault with dan gerous weapon with intent to do great bodily harm, and assault with dangerous weapon without intending great bodily harm, refusal of court to withdraw second and third counts from consideration of jury on account of death of person assaulted, and defendant's admission that deceased died as result of wound, held not error, since jury's verdicts, acquitting defendant of manslaughter and finding him guilty of assault as charged in third count, were not necessarily inconsistent as involving a finding that the shooting was justified, and therefore did not amount to an assault.

9. Criminal law 878 (3)-Jury's verdict of not guilty as to manslaughter held not to operate as acquittal of assault with dangerous weapon of which defendant was found guilty.

Jury's verdict of not guilty as to manslaughter charged in one count of indictment, and guilty as to assault with dangerous weapon without intending great bodily harm, charged in another count, held not fatally inconsistent, and acquittal of charge of manslaughter and assault with intent to do great bodily harm did not operate as acquittal upon third count of indictment charging lesser degree of assault, especially where it was not certain that the shooting complained of had caused death.

In Error to the District Court of the United States for the Eastern District of Michigan; Charles C. Simons, Judge.

Ernest L. Benway was convicted under a count of an indictment charging assault without intent to commit murder and without intent to inflict great bodily harm less than the crime of murder, and he brings error. Affirmed.

Albert McClatchey and Harry J. Weber, both of Detroit, Mich. (Charles A. Meyer, of Detroit, Mich., on the brief), for plaintiff in error.

Edgar G. Gordon, of Monroe, Mich., and Wilber M. Brucker, Atty. Gen. (William W. Potter, Ex Atty. Gen., on the brief), for defendant in error.

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

HICKENLOOPER, District Judge. Defendant below was convicted and sentenced

26 F.(2d) 168

under the third count of an information charging manslaughter in the first count, assault with dangerous weapons and with intent to do great bodily harm less than the crime of murder, in the second count, and assault without intending to commit the crime of murder and without intending to inflict great bodily harm less than the crime of murder, in the third count.

[1,2] The defendant was a federal prohibition agent, assigned to the duty of attempting detection of transportation of intoxicating liquors in violation of the National Prohibition Act (27 USCA) and the smuggling of such liquors into the United States in violation of the internal revenue laws, at a point on the Huron river in the Pointe Mouillee marsh. The decedent had been duck hunting upon the marsh since early morning, and about 4 o'clock in the afternoon started home along the Huron river in a flat-bottomed scow, about 16 feet long, propelled by an outboard motor. The shooting occurred in an effort on the part of the defendant to hail, give warning shots to, and bring in the boat for inspection. The same alleged assault formed the foundation of each count: The plea was not guilty, and the contentions most relied upon at trial under such plea were selfdefense, following an alleged threat and hostile movement by the occupants of the boat, and justification, in that the shooting was done in the performance of the duties of a federal officer, and was no greater exercise of force than appeared reasonably necessary in order to prevent the commission of a felony (the smuggling of liquor) and to effect arrest. Death resulted from infection, septicemia, and/or pneumonia following the wounds inflicted.

The defendant below complains, first, that the record does not contain sufficient proof of venue. One witness, Duvall, testified that he was a conservation officer or game warden assigned to duty in Monroe county, Mich., and that Berlin township of Monroe county is on the southwesterly bank of the Huron river and Wayne county on the opposite shore. One Floyd Crooks, who was an occupant of the boat with the decedent, testified that at the time of the shooting they were about 30 or 40 feet from the southwesterly bank of the river, and that he subsequently pointed out the place to the surveyor. The county surveyor referred to, Ora A. Case, testified that the dock from which the shooting was done, as pointed out by Crooks, was approximately 160 feet distant from the opposite bank of the stream, and he and other witnesses testified as to various landmarks 26 F. (2d)-112

tending to locate the place of shooting near the southwest bank of the Huron river at that point where the river touches upon the northeast boundary of the county. The evidence is not as explicit as might be upon the point that the shooting occurred upon the boundary, between the two counties, or within 100 rods of the dividing line between them, but we are of the opinion that the evidence of all witnesses, considered together, sufficiently establishes this fact which, if established, gives venue of the prosecution to the courts in either of the adjoining counties. Mich. Comp. Laws 1915, § 15606. In addition to this, counsel for the prosecution suggested to the court at the close of the principal charge that the jury should be instructed on the question of venue, whereupon the court stated: "There is no dispute raised about the jurisdiction." This was evidently an interrogation, as counsel for the defendant raised no such objection, and the prosecuting attorney replied: "There apparently is not." Under these circumstances we are of the opinion that the venue was sufficiently proved as in Monroe county, Michigan, and that the defense acquiesced in and conceded such fact at the trial. Under these circumstances, error cannot be predicated upon alleged failure to so prove venue.

[3] The contention that the court erred in its instructions to the jury may be briefly disposed .of. Having very fully charged the jury upon the essential ingredients of the crimes of manslaughter, assault with intent to do great bodily injury, and assault without such intent, the court instructed the jury that they should consider the question of defendant's guilt upon each of the counts separately and in the order stated, that the defendant could not be convicted upon more than one count, and, if under the rules of law then given the defendant should be found to be not guilty under the first and second counts, "you pass on to the third count, which merely charges assault." Objection is now raised to the use of the word "merely" as susceptible of misunderstanding that the accusation contained in the third count was the misdemeanor of simple assault as distinguished from the felony of assault with a dangerous weapon but without intent to do great bodily harm. Reading the charge as a whole, we are of the opinion that the jury could not have been so misled, and that the language used could not have been so misconstrued. The contention is without merit. [4] The third contention of error is that the court erred in permitting the witness Case, and other witnesses, to refer to and exhibit

to the jury a map of the lower Huron river, purporting to be a survey of that territory made by the witness Case, and disclosing landmarks and locations near the scene of the shooting. The map was apparently admitted in evidence, but was used simply as a diagram or means of illustrating, defining, and communicating the evidence of the several witnesses to the jury. The witness Case was county surveyor of Monroe county, and had personally made the survey and prepared the map from such survey, and such map was at least presumptively correct in all essential particulars. To hold that it could not be used for the above purposes and the manner in which much less carefully prepared rough diagrams are continuously used would be to deny the almost universal sanction of practice and overrule many well-established precedents. Wigmore on Evidence, §§ 790-792; Hoffman v. Harrington, 44 Mich. 183, 6 N. W. 225; Battishill v. Humphreys, 64 Mich. 494, 513, 31 N. W. 894; Le Beau v. Telep. & Teleg. Const. Co., 109 Mich. 302, 303, 67 N. W. 339; Western Gas Const. Co. v. Danner, 97 F. 882 (C. C. A. 9).

The contention most strongly and earnestly urged by the plaintiff in error is that the District Court erred in refusing to withdraw the second and third counts from the consideration of the jury and in refusing to instruct the jury that the defendant must either be found guilty of manslaughter or discharged, because the defendant "admitted," and it was apparent from the evidence, that the decedent had died as a result of the wound. The same question is also now presented in the form of a contention that, inasmuch as the defendant admitted that he fired the fatal shot and pleaded only justification, and since, if such wounding constituted a felonious assault and death followed, the crime must have been manslaughter, the verdict of not guilty of manslaughter must have been predicated on a finding of justification, which finding must in turn acquit the defendant of the charge of assault. Thus the verdicts of not guilty under counts 1 and 2 and of guilty under count 3 are claimed to be wholly inconsistent and the conviction unsupported by the evidence.

[5,6] No error is apparent in denying the motion to quash and dismiss the second and third counts before trial. Since the same assault formed the foundation of each count, and since accusations of cognate offenses or of several different degrees of the same general classification of offense, arising from the same transaction, may be joined as separate counts in a single indictment, leaving the ju

ry to determine which charge is applicable to the facts as disclosed on trial, the court could not say before trial that the counts were so inconsistent as to warrant the dismissal of any.

The questions arising at the trial, and here on error, may be thus stated: Where the crime charged in one of several counts of an information or indictment is of lower degree, but also one of the essential elements of a crime of higher degree charged in another count, and where the defendant, if guilty of the lower degree, must of necessity be guilty of the offense of greater degree, provided the additional elements are sufficiently established, has such defendant a right to insist that the issue on the offense of greater degree alone be submitted to the jury because he "admits" such additional elements, or the evidence thereon is uncontradicted or even uncontroverted? Or even though not so entitled as of right, are the verdicts of guilty of the included offense of minor degree (felonious assault), and of not guilty of the offense of greater degree (homicide) so wholly inconsistent as to require reversal where the additional element required to establish the offense of greater degree is conceded? Or does the acquittal upon the two counts of higher degree necessitate an acquittal upon the count of lower degree in view of the concessions?

The plaintiff in error relies, in support of his contention, almost exclusively upon three Michigan cases, People v. Adams, 52 Mich. 24, 17 N. W. 226, People v. Hall, 48 Mich. 482, 12 N. W. 665, 42 Am. Rep. 477, and People v. Kepke, 103 Mich. 459, 61 N. W. 861. It is conceded that in the trial of a criminal prosecution removed from the state courts the federal court will follow the state law upon all matters affecting the substantive rights of the parties. At the very inception therefore we are met with the inquiry whether these decisions of the Supreme Court of Michigan support the contentions of the plaintiff in error as applied to the case at bar. We are of the opinion that they do not. In People v. Adams the defendant was charged with the single offense of murder by an information in the abbreviated statutory form, was convicted of assault and battery, and sentenced. The court specifically refers to the nature of the charge and the fact that the information "does not set out murder by assault, and an assault cannot be held as covered by it as an independent averment." The opinion is very brief, and seems to indicate the view of the court that upon a charge of murder only the several degrees of homi

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