The principal provisions of the statutes invoked by appellants are: "The liability of the owner of any vessel

for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending," R. S. U. S. § 4283 (46 USCA § 183; Comp. St. § 8021); and "the individual liability of a shipowner, shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to the whole; and the aggregate liabilities of all the owners of a vessel on account of the same shall not exceed the value of such vessels and freight pending, 23 Stat. 57 (46 USCA § 189; Comp. St. § 8028).

[1-3] The federal statutes are admittedly dominant, and to these provisions, in case of repugnancy, state Constitutions and laws must yield. The question, therefore, is of the meaning and scope of the federal statutes. That they were enacted to put this country upon the same footing with other countries, and thus to encourage the building of ships and participation in the foreign carrying trade, is well known. "The rule of limited liability of owners of vessels is and

."

an ancient one, "should be applied having regard to the purposes it is intended to subserve and the reasons on which it rests." Evansville & Bowling Green Packet Co. v. Chero Cola B. Co., 271 U. S. 21, 46 S. Ct. 379, 70 L. Ed. 805; Hartford Accident & Indemnity Co. v. Southern Pacific Co., 273 U. S. 207, 47 S. Ct. 357, 71 L. Ed. 612, decision United States Supreme Court February 21, 1927. In the latter case, after referring to several of its own decisions, the court said: "It is quite evident from these cases that this court has by its rules and decisions given the statute a very broad and equitable construction for the purpose of carrying out its purpose and for facilitating a settlement of the whole controversy," etc. See, also, Oregon R. R. & Nav. Co. v. Balfour (C. C. A.) 90 F. 295; People's Nav. Co. v. Toxey (C. C. A.) 269 F. 793; The Princess Sofia (D. C.) 278 F. 180; The 84-H (C. C. A.) 296 F. 427; The Omar D. Conger (D. C.) 1 F.(2d) 732; Kitsap County Transp. Co. v. Harvey (C. C. A.) 15 F. (2d) 166, 48 A. L. R. 1420. And in view of the consequences which would flow from the adoption of appellee's contention, we are also to bear in mind the general rule that

That the recognition of appellee's view would lead to such consequences is manifest. The purpose of the statute is to encourage contributions of money for the construction and operation of ships, but, under this view, an investor, so contributing through the medium of a holding corporation organized in California, would be wholly without the intended protection, whereas another, so contributing as a stockholder in a like corporation organized in some other state, if not doing business in California, and still another, contributing directly, would be fully protected. Instead of uniformity of results in the operation of a general federal statute, we would have a wide diversity, without any basis at all in reason. And in the case of a California corporation the purpose of the statute would be wholly defeated.

[4] Speaking of the power of the states to legislate in respect to general maritime law, the Supreme Court has said: "And plainly, we think, no such legislation is valid if it contravenes the essential purpose expressed by an act of Congress or works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations." Southern Pacific Co. v. Jensen, 244 U. S. 205, 216, 37 S. Ct. 524, 529, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. See, also, Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145. True, the protection of the limitation statute extends only to ship "owners," and, technically speaking, stockholders are not owners; but, in a broad popular sense, and for certain purposes in a legal sense, they are sometimes so regarded. "While a corporation holds the legal title to, and the right to manage, control, and convey, its property, it holds the property for its stockholders, who are the equitable and beneficial owners. Lynch v. Turrish (C. С. A.) 236 F. 653; Id., 247 U. S. 221, 38 S. Ct. 537, 62 L. Ed. 1087; Newell-Murdoch Realty Co. v. Wickham, 183 Cal. 39, 190 P. 359; Hobbs v. Tom Reed Co., 164 Cal. 497, 129 P. 781, 43 L. R. A. (N. S.) 1112.

."

[5] We are not to be understood as holding that in a strict sense a corporation is a trustee for its stockholders; nor is it necessary so to hold. By whatever terms we characterize the relation, it remains true that the stockholders are the real investors, and take the perils, not of creditors, but of investors, and it was the purpose of the statute in question to encourage investment by exempting the investor from loss in excess of the fund he is willing to risk in the enterprise. Boston Marine Ins. Co. v. Metropolitan R. L. Co. (C. C. A.) 197 F. 703. When we consider the plain purpose of Congress, and the consequences to which appellee's contentions would lead, and the fact that under the common law, and, as we think, generally under statutory law, when the limitation statutes were enacted, there was no stockholders' liability such as is imposed by the Constitution of California, we may and should conclude that it was the intent of the statute to provide protection to all who take the risk of investment, whether their ownership is direct or indirect.

Accordingly, the order appealed from is reversed, with directions to take further proceedings consistent herewith.

ISBELL v. UNITED STATES.

Circuit Court of Appeals, Eighth Circuit. April 27, 1928.

No. 7715.

1. Criminal law 622(1)-Motion for severance in prosecution of several defendants rests in trial court's discretion.

Motion for severance under indictment

unlawfully, and feloniously transport in interstate commerce from Wichita, in the state of Kansas, into the Western district of Oklahoma, a certain Buick automobile, giving the number thereof, knowing said motor vehicle to have been stolen, held sufficient to charge violation of National Motor Vehicle Theft Act (18 USCA $ 408).

4. Automobiles 355(12)-Proof that automobile was taken without knowledge or consent of person using it sufficiently established character of car as stolen, in prosecution for transporting stolen automobile in interstate commerce (18 USCA § 408).

Proof that owner's son was given permission to drive car, and that while using it he parked it, and that car was subsequently taken without

his knowledge or consent, held sufficient to establish character of car in controversy as stolen automobile, in prosecution for transportation of stolen car in interstate commerce, under 18 USCA § 408.

5. Automobiles 355(12)-Evidence held to sustain conviction for transportation of stolen automobile in interstate commerce (18 USCA § 408).

Evidence held sufficient to sustain conviction

of one of two defendants jointly charged with transportation in interstate commerce of automobile known to have been stolen under National Motor Vehicle Theft Act (18 USCA 408).

In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.

E. P. Isbell was convicted for violation of the National Motor Vehicle Theft Act, and he brings error. Affirmed.

P. K. Morrill, of Altus, Okl. (Stevens & Cline, of Lawton, Okl., on the brief), for plaintiff in error.

Roy St. Lewis, U. S. Atty., of Oklahoma City, Okl. (Leslie E. Salter and William P.

rests in sound discretion of trial court.

2. Criminal law 622(2)-Denial of motion for severance, where not preventing fair trial of defendants charged with transporting stolen automobile, held not abuse of discretion (18 USCA § 408).

In prosecution of several defendants under the National Motor Vehicle Theft Act (18 USCA § 408) for alleged transportation across state line of stolen car, refusal to grant motion of one of defendants for severance held not abuse of discretion, where it did not appear that either defendant was prevented from securing fair and impartial trial.

3. Automobiles

351-Indictment charging

homa City, Okl., on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges, and KENNEDY, District Judge.

KENNEDY, District Judge. Plaintiff in error Isbell, with one Olin Camp, as defendants, were convicted in the court below upon an indictment charging them with violation of the National Motor Vehicle Theft Act (18 USCA § 408). From such conviction Isbell has sued out a writ of error, which brings the case before this court.

The general trend of the evidence in the court below is to the effect that the two defendants left the city of Wichita, Kan., in a car belonging to one J. Arch Butts, and went to different points in the state of Oklahoma which are situated in the Western judicial district of that state.

[1, 2] Error is assigned to the trial court because of the denial of a motion made on behalf of the defendant Isbell for a severance. This, under the authorities, rests in the sound discretion of the court. Nothing appears in the record which would indicate that the trial court abused this discretion in denying the motion, or that the facts in this case present a situation from which it might be apparent that either defendant could not or did not secure a fair and impartial trial by being tried jointly with his codefendant.

[3] The indictment itself is challenged because of its alleged legal insufficiency. The indictment charges in substance, that on or about the 30th day of January, 1926, in Washita county, in the Western district of Oklahoma, the defendants did then and there knowingly, willfully, unlawfully, and feloniously transport in interstate commerce from Wichita, in the state of Kansas, into the Western district of Oklahoma, a certain Buick automobile, giving the number thereof, which had theretofore been stolen from one J. Arch Butts, the owner thereof, at Wichita, Kan., the said defendants then and there well knowing said motor vehicle to have been stolen. This statement appears to be sufficiently specific under the recognized rule to advise the defendant of the charge made against him. It clearly appears that there was charged a joint transportation by the two defendants of a car stolen from a person named, with knowledge of its being stolen, from Wichita, Kan., into the Western district of Oklahoma, and that in a specified county in the latter state, to wit, Washita county, a portion of such transportation was fixed. It was in this county that the defendant Camp, according to the proofs, had eventually driven the car, and defendant Isbell had later endeavored to regain possession of it. Under the statute (18 USCA § 408) prosecution may be in any district in or through which the vehicle is transported or removed.

[4] Complaint is also made that the stolen character of the car is not sufficiently established by the evidence. The trend of the testimony upon this point is that the car was sold to one John Arch Butts, of Wichita, Kan., delivery made to him by the retailing agency, and payment received for the same; that the son of the owner was given permission to drive the car by his father, and that while using it the son parked it at a certain place in the city of Wichita at a certain time, from which place it was taken without his knowledge or consent. We think that this

evidence is sufficient to establish the character of the car here in controversy as a stolen motor vehicle. If we were to adopt the rule contended for by counsel for plaintiff in error, it would virtually mean that, in order to establish the stolen character of an automobile, the title owner would have to be in immediate personal charge of the car previous to the theft.

[5] The remaining point raised is to the effect that the verdict and judgment are not sustained by proper and sufficient evidence. In reviewing the record we are convinced that the evidence was entirely sufficient to sustain the verdict of the jury and the judgment of the court based thereon. The evidence seems to justify the conclusion that upon the trial each defendant was trying to absolve himself from criminality and place the burden of blame upon his codefendant. Considering that the crime charged was the transportation of a stolen motor vehicle knowing it to have been stolen, the jury could quite easily come to the conclusion that the defendants were equally guilty. It having been established that the car was a stolen one, and the defendant Isbell having admitted that he assisted in the transportation of it from Kansas to Oklahoma, the only remaining essential element of the crime necessary to be established as against Isbell was his knowledge of the stolen character of the car at the time of the transportation. In this respect we feel that the principal evidence is independently supported by various circumstances, which amply sustain this phase of the charge. The stories told by the defendant Isbell were conflicting, and not in consonance with the theory of a guiltless participant. He made statements to friends that, if the truth were known in regard to the car, the law would pick him up. He first claimed ownership of the car, and then stated that it belonged to another, whose name he admitted afterwards was fictitious, in regard to which his only explanation was that it was stated in the nature of a joke. Again, he made statements to the effect that, if the truth were known, there would be enough dope to send him to the penitentiary, and later said that he would arrange to send a man to Wichita for the purpose of transmitting a bogus telegram, in order to secure the release of the car from the authorities, who had taken it into their possession. All of these circumstances, together with others, tend to establish evidence of a guilty knowledge on the part of defendant Isbell.

All the assignments of error, as they were grouped by counsel for plaintiff in error, have been considered in the foregoing, with the result that we find no error in the record of the trial court and its judgment is affirmed.

ST. LOUIS-SAN FRANCISCO RY. CO. v. BAEHLER.

Circuit Court of Appeals, Eighth Circuit. April 27, 1928.

No. 7728.

1. Railroads350(3)-Negligence of railroad in maintenance of crossing rendering it liable for death of motorist held insufficient for jury (Comp. St. Okl. 1921, § 5533).

In action against railroad for death of motorist, based on alleged negligence in maintaining crossing, on ground that it was not maintained of the width of the highway, proper evidence that crossing was in compliance with Comp. St. Okl. 1921, § 5533, in that it was unobstructed and maintained in good condition, and that crossing was within rule of reason as to

what ordinary country railroad crossing might be, held to render erroneous refusal of defendant's motion. for directed verdict on ground that no negligence of defendant had been shown.

Trial 139(1)141-Court should direct verdict where evidence is undisputed or so conclusive that verdict in opposition to it would be set aside by court.

It is duty of trial court to direct verdict at

close of the evidence in cases in which the evidence is undisputed and in cases in which evidence is conflicting but of so conclusive character that court, in exercise of a sound judicial discretion, would set aside verdict in opposition

to it.

In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.

Action by Mrs. Ada H. Baehler against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions to grant new trial.

Ben Franklin, of Oklahoma City, Okl. (E. T. Miller, of St. Louis, Mo., and Cruce & Franklin, of Oklahoma City, Okl., on the brief), for plaintiff in error.

Raymond A. Tolbert, of Oklahoma City, Okl., and Irving D. Ross, of Newkirk, Okl. (Embry, Johnson & Tolbert, of Oklahoma City, Okl., and Sargent & Ross, of Newkirk, Okl., on the brief), for defendant in error.

Before STONE and VAN VALKENBURGH, Circuit Judges, and KENNEDY, District Judge.

KENNEDY, District Judge. The defendant in error, plaintiff in the court below,

brought this suit as the surviving widow of one E. J. Baehler, under the laws of the state of Oklahoma, for the benefit of herself and minor children against the plaintiff in error, defendant in the court below, for damages growing out of the death of the husband and father at a railroad crossing because of the alleged negligence of the railway company in maintaining such crossing. The defenses were general denial and contributory negligence. In the court below the jury returned a verdict of $3,500 in favor of the plaintiff, a judgment was entered thereon, and the railway company brings the case here by petition in error.

The record discloses substantially the following facts surrounding the accident: The railway company maintained a line of railroad through Kaw county, and at the point where the accident occurred in open country it ran in a northeasterly and southwesterly direction, being crossed by a public highway running approximately due east and west. The generally maintained width of the highway was about 30 feet until near the approach on either side toward the railway track (the exact distance being in dispute) where it angled to the northerly side of the highway and there crossed the railroad track. Drainage ditches were maintained on either side of the railroad track, and at a point some 12 feet from the center of the railroad track culverts were inserted 20 feet in length to permit the unobstructed passage of the drainage water, and these culverts covered with earth, with the exception of a slight portion at either end. At the crossing proper, planks 12 feet in length were laid on either side of both rails, and the surface at the approaches and between the rails was graded in

such a way as to make a reasonably smooth crossing. The deceased had resided for a period of some years at a distance of about three-quarters of a mile west of this crossing, was generally familiar with it, and in traveling to Newkirk, a town of some considerable municipal proportions in that vicinity, 8 or 9 miles distant from his home, the usually traveled route was along the highway intersecting the crossing at the point where the accident occurred. On the 9th of February, 1925, the day upon which the deceased met his death, he was operating a thresher on the east of the railroad track and some 8 or 9 miles distant from it. Threshing operations had continued until dark that evening, after which the men so engaged, including the deceased, had partaken of supper. The deceased thereupon spoke of driving to his home in his Ford car, and stated that he would wait until the moon came up because he had no lights on his automobile. The farmer for whom the threshing was being done advised the deceased against this, and invited him to remain during the night, but that thereafter, and about 9 o'clock, the deceased left that place in his automobile, driving without lights. This is apparently the last time that he was seen alive. His lifeless body was found by passers-by near the railroad crossing about one hour and three-quarters later. The physical evidences disclosed at the place of the accident were that his car had left the generally traveled path of the highway near where it began to curve toward the crossing at the west approach; that the left wheels of his car had passed over the small portion of the culvert not covered by dirt; that the car had vaulted both rails of the railroad track, and, striking the ditch on the east side, had turned completely over, and, again righting itself, was found facing in a northeasterly direction. The body of the deceased was found lying a few feet distant from the car. When found, the car was able to be taken away on its own power, and, after a manipulation of some of the ignition wires, it was possible to produce a light in one of its headlights.

At the close of plaintiff's evidence, the defendant demurred to the evidence upon the ground that it was not sufficient to sustain the charge of negligence, which demurrer was overruled by the court, and at the close of all the evidence in the case the defendant moved for a directed verdict upon the ground that no negligence of the defendant had been shown, and that, in addition, the evidence showed contributory negligence on the part of the deceased. This motion was likewise overruled by the court, and the case submitted to the jury, with the result above indicated.

There are but two questions presented for consideration of the court here under the assignments of error: First, Did the plaintiff make out a case of primary negligence chargeable to the defendant? and, second, if so, was such contributory negligence established on the part of the deceased as in law to defeat plaintiff's recovery?

[1] The charge of negligence against the railway company and to which proofs of plaintiff were directed is that it carelessly and negligently maintained the crossing in question. The law of Oklahoma as found in section 5533, Compiled Statutes of Oklahoma 1921, provides:

"It shall be the duty of every railroad company or corporation doing business, or

operating a line of railroad, within this state, to construct a crossing across that portion of its track, roadbed or right of way over which any public highway may run, and maintain the same unobstructed, in a good condition for the use of the public, and to build and maintain in good condition all bridges and culverts that may be necessary on its right of way at such crossing."

By this provision it will be observed that it is incumbent upon a railroad company to maintain its crossing of a public highway so that the same is "unobstructed" and in a "good condition," and likewise bridges and culverts adjacent to such crossings. There seems to be no evidence in the record which justifies any complaint of the condition of the crossing or culverts as they were then and there physically constructed and maintained, as all the evidence, including photographs taken immediately after the accident, shows that the crossing was reasonably smooth and was unobstructed as to view for a considerable distance upon both east and west highway approaches. The contention of counsel for the defendant in error is thereby narrowed to the point that the railway company was negligent in not maintaining a crossing of the width of the highway proper. No authorities which seem to us in point are presented to sustain this theory in regard to a railroad crossing in the rural districts and under conditions which appear in this case. There are cases, some of which have been cited, which apply to crossings within municipal limits, but these cannot be considered as being in point here. Other cases cited are those in which there was either a defect in the construction of the crossing itself, or where there were holes not ordinarily observable by the traveler and obstructed by weeds, or some other features present which went to the point of causing the crossing as it was constructed to be condemned, but counsel have given us no citation applying to a country railroad crossing, where the mere fact that the crossing proper is not equal in width with the generally maintained adjacent portions of the highway has been held to constitute an improper or unsafe railroad crossing. The record discloses that the jury in its deliberations sought additional instructions upon this point, and, through a discussion of counsel in the presence of the jury, it was remarked by one of the plaintiff's counsel that a crossing "would have to be reasonably adequate to public travel." Our own experience teaches us, through use of the public highways, that at the crossing of railroad tracks the traveled portions of highways are