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ed by the weight of the truck when it was on the Finley barge. Reed drove his truck across the Finley or landing and embarkation barge, on the Louise or ferry barge, and through the opening on the opposite side of the Louise barge, into the river, and was drowned.

Lyman Reed and J. M. Reed, minor sons of F. A. Reed, by their next friend, Mrs. F. A. Reed, filed a libel in admiralty to recover damages under favor of the Missouri statute, alleging, among other things, that the respondents were guilty of negligence in not placing the decks of the barges at the same level, in not providing a safe means of approach from one barge to the other, and in not providing proper "scotches" or sufficient guard rails across the opening on the river side of the Louise barge, and that respondents' negligence in these respects was the proximate cause of the accident resulting in the death of their father, F. A. Reed.

The respondents' answer admits the joint use of the vessels and barges above mentioned, in the operation of this ferry, denies all negligence on their part in the equipment or operation thereof, and avers that the accident was caused solely by the negligence and unskillfulness of Reed. The trial court found in favor of the libelants and assessed damages in the sum of $4,500. The respondents appeal.

It is insisted upon the part of the appellants that the decree of the District Court is not sustained by the evidence and is contrary to the decided preponderance of the evidence. [1] Reversal is sought solely on questions of fact in reference to which the evidence is conflicting. The trial judge saw and heard the witnesses. Counsel for appellants, in their printed brief, correctly state the rule that under such circumstances the burden is upon appellants to show that the judgment of the District Court is against a decided preponderance of the evidence. Monongahela River Consol. C. & C. Co. v. Schinnerer (C. C. A.) 196 F. 375, 379; City of Cleveland v. Chisholm (C. C. A.) 90 F. 431, 438; Lew Loy v. U. S. (C. C. A.) 242 F. 405, 408.

The evidence is conflicting, particularly in reference to the use of "stages" to equalize the difference in height of the platforms or decks of the respective barges, the use of "scotches" to block automobiles being driven upon the ferry, and also conflicting to some extent as to what was said and what occurred in placing the Reed truck upon the outer or ferry barge; but there is no substantial conflict in reference to other facts and circumstances that are helpful, if not controlling, in

arriving at a correct conclusion as to the proximate cause of the accident.

There is no dispute in reference to there being a difference in elevation of the decks of the embarkation and ferry barges, or that this difference in their respective levels would be somewhat increased by the weight of the truck on the embarkation barge. It necessarily follows that, even if "stages" were used to assist the truck in rising from the lower to the higher level, more motor power would be necessary to force the truck up this grade than would be required in coming down the embankment, or than would be required if the decks of the barges were on a common level. It would therefore appear far more probable that the engine of the truck "stalled," if it did in fact "stall," when its rear wheels were rising or starting to rise from the lower to the upper deck level, rather than that the motor "stalled" or "died" after all four wheels of the truck had reached the level of the deck of the outer barge.

It further appears that one witness for respondents testified that, when the motor "stalled," the rear wheels of the truck were two feet on the deck of the ferry barge. Another witness for respondents testified that the deck of the ferry barge was but 18 feet wide, and that the length of the truck from the outer part of the front tire casings to the outer part of the rear tire casings was 16 feet. Without allowing for any projection of the engine and body of the truck to the front and rear of the wheels, this would have carried the truck practically to the river edge of the deck. There is, however, testimony tending to prove that Reed had turned the front wheels, so as to drive the car lengthwise of the barge, and that an employé of respondents straightened the wheels and directed him to drive straight across the barge. If the rear wheels of the truck were then 2 feet on the deck of the outer barge, and the deck of this barge was but 18 feet wide, it would not seem possible for Reed to drive straight across this deck without backing the truck, so that the rear wheels would rest on the embarkation barge. These facts also tend strongly to the conclusion that, when the engine "stalled," and when the wheels were straightened and directions given to Reed to drive straight across the deck of the Louise barge, the rear wheels were on the Finley barge, or rising therefrom.

However that may be, there is practically no dispute as to the character of the barrier placed across the opening in the opposite side of the transportation barge. According to the testimony introduced by respondents,

26 F.(2d) 21

this was a hackberry pole "between 3 and 4 inches at one end, and possibly 4 or 5 at the other." It is not important whether this was a hackberry pole of the dimensions stated, or a 2x4 cypress plank narrowing at one end to 2 inches; neither would be such a barrier as would offer any substantial resistance to a motor truck in motion. Nor would loose "scotches," placed on the edge of the deck so that they could be readily pushed therefrom, or "jumped" by the wheels of the approaching truck.

[2] The respondents were common carriers for hire, and as such were required to equip their ferryboats with such guard rails, chains, barriers, and other appliances as are reasonably necessary to secure the safety of passengers and property in transit. Wilson v. Hamilton, 4 Ohio St. 723; Holmes v. Oregon & C. R. Co. (D. C.) 5 F. 523; Meisle v. N. Y. Central & Hudson River R. R. Co., 219 N. Y. 317, 114 N. E. 347, Ann. Cas. 1918E, 1081; Lewis v. Smith, 107 Mass. 334; Sturgis v. Kountz, 165 Pa. 358, 30 A. 976, 27 L. R. A. 390; Amos v. Delaware River Ferry Co., 228 Pa. 362, 77 A. 12.

It is claimed on behalf of the respondents that a large and heavy barrier could not conveniently be used, because it would have to be removed when the Tennessee side was reached, to permit the car to drive off the ferry. That, however, cannot justify the use of an insufficient and worthless barrier. If timber of sufficient width and thickness to afford a substantial barrier could not be used for that purpose, respondents could have used a chain of such size and strength as to afford a substantial barrier, to prevent the truck, under conditions and circumstances reasonably to be anticipated, from falling into the river.

[3, 4] It is claimed on behalf of appellants that the truck was moving at such speed and under such high power that it would have broken down any barrier. That conclusion is not sustained by the evidence. Mere theory or conjecture as to what would have happened, if proper barriers had been provided, cannot excuse the owners and operators of a ferry from the exercise of due care to provide barriers of sufficient strength to afford reasonable protection to property and passengers. Ferrymen are chargeable with knowledge that animals and automobiles may not, at all times, be under adequate control. Sparkman v. Graham, 79 Miss. 376, 30 So. 713; Wilson v. Alexander, 115 Tenn. 125, 133, 88 S. W. 935; Meisle v. New York Central & Hudson River R. R. Co., 219 N. Y. 317, 114 N. E. 347, Ann. Cas. 1918E, 1081.

[5] Testimony was also offered on behalf of the respondents, tending to prove that Reed appeared to be inexperienced in the handling of his truck, and for that reason unable to control its operation. Neither of the witnesses that so testified had any knowledge whatever as to Reed's experience or lack of experience, and their opinion, based upon what they observed at the time of the accident, cannot be accepted as a preponderance of the evidence on that question of fact, in disregard of the testimony of witnesses, who had positive knowledge, that Reed had been driving this identical truck for four or five months prior to the accident. Nor does it appear that the accident occurred through lack of skill or negligence on the part of Reed, when considered in connection with the undisputed fact that the deck of the barge was so narrow that he had practically little or no space in which to maneuver his car into position, without grave danger of striking and breaking down the insufficient barrier on the river side.

[6] Upon a careful review of all the evidence in this record, this court has reached the conclusion that the judgment of the District Court is not only not against the decided preponderance of the evidence, but, on the contrary, is fully sustained thereby. Judgment affirmed.

PALADINI et al. v. FLINK. Circuit Court of Appeals, Ninth Circuit. April 30, 1928.

Petition for Modification of Opinion Denied May 14, 1928.

No. 5281.

1. Shipping 203-State constitutional provision relating to liability of stockholders must yield to federal statutes relating to individual liability of shipowners (Const. Cal. art. 12, § 3; 46 USCA §§ 183, 189).

State constitutions and laws, such as Const. Cal. art. 12, § 3, relating to liability of stockholders, must yield to federal statutes, Rev. St. 8021), and 23 Stat. 57 (46 USCA § 189; Comp. U. S. § 4283 (46 USCA § 183; Comp. St. § St. § 8028), relating to individual liability of shipowners with which it is repugnant, since federal statutes are dominant.

2. Shipping 207-Rule of limited liability of owners of vessels should be applied in action by one injured while employed on vessel (46 USCA §§ 183, 189).

sels under 23 Stat. 57 (46 USCA § 189; Comp. St. § 8028), and Rev. St. U. S. § 4283 (46 USCA § 183; Comp. St. § 8021), should be applied in

Rule of limited liability of owners of ves

action by one injured while employed in marl- Paladini, Incorporated, the owner of the tug

time service on vessel.

3. Shipping 203-Statute relating to individual liability of shipowners must be given sensible construction (46 USCA §§ 183, 189). Rev. St. U. S. § 4283 (46 USCA § 183; Comp. St. § 8021), and 23 Stat. 57 (46 USCA § 189; Comp. St. § 8028), relating to individual liability of shipowners, must be given sensible construction, and construction which would lead to absurd consequences should be avoided when ever reasonable application can be given to it consistent with legislative purpose. 4. Corporations

holds

182-Corporation property for its stockholders who are equita

ble owners.

While a corporation holds legal title to and right to manage, control, and convey its property, it holds its property for its stockholders who are equitable and beneficial owners.

5. Shipping 205-Stockholders of California corporation owning vessel held entitled to

limit their liability in action by employee for

injuries (46 USCA §§ 183, 189; Const. Cal. art. 12, § 3).

Under Rev. St. U. S. § 4283 (46 USCA § 183; Comp. St. § 8021), and 23 Stat. 57 (46 USCA § 189; Comp. St. § 8028), relating to individual liability of shipowners, stockholders of California corporation owner of vessel held entitled to limit their liability in action commenced against them by one injured while employed in

maritime service on vessel, notwithstanding Const. Cal. art. 12, § 3, providing that every stockholder of corporation is individually and personally liable for such proportion of all its debts and liabilities as amount of stock owned by him bears to whole of subscribed capital

stock.

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Ira S. Lillick, of San Francisco, Cal. (J. Arthur Olson, of San Francisco, Cal., of counsel), for appellants.

Ford, Johnson & Bourquin, of San Francisco, Cal., for appellee.

boat Henrietta. Claiming that on March 9, 1923, he was injured while employed in a maritime service on the vessel, the appellee brought separate actions against the corporation and its stockholders, in the state court and also the federal District Court, in California, to recover damages. Thereupon, while these actions were pending, appellants filed in the court below their petition for limitation of liability, in which proceeding, following an appraisement of the vessel, an order was made for the issuance of monition against all persons claiming damages, etc., and restraining the further prosecution of the law actions brought by Flink against the petitioners. Thereafter, upon special appearance by Flink, the court granted his motion to vacate the stay order, from which ruling the petitioners appeal.

As fairly stated in appellants' brief, the sole question involved is "whether the stockholders of a California corporation, which is the legal owner of a vessel, are entitled to limit their liability in an action commenced against them arising out of a claim for personal injuries sustained by a person on board the vessel." Under section 3 of article 12 of the California Constitution, each stockholder of a corporation is "individually and personally liable for such proportion of all its debts and liabilities contracted or incurred, during the time he was a stockholder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock, or shares of the corporation." The operation and effect of this provision have had frequent consideration in the courts, and it seems to be well

settled that under it stockholders are not

merely sureties for the corporation, but their liability is direct and primary. Mokelumne Hill Co. v. Woodbury, 14 Cal. 265; Trindale v. Atwater Canning Co. (Cal. App.) 128 P. 756; Dolbear v. Foreign Mines Dev.

Co. (C. C. A.) 196 F. 646; Buttner v. Adams (C. C. A.) 236 F. 105. Stockholders of foreign corporations doing business in California would seem to have the same status (Cal. Civ. Code, § 322; Provident Gold M. Co. v. Haynes, 173 Cal. 44, 159 P. 155), but presently the consideration is not highly material. And, under the view we have taken upon another branch of the case, we do not deem it necessary to dis

William Denman and Andros, Hengstler & Dorr, all of San Francisco, Cal., amici curiæ. Before GILBERT, RUDKIN, and DIET- cuss whether or not, in the light of recent RICH, Circuit Judges.

DIETRICH, Circuit Judge. The appellants constitute all the stockholders of A.

decisions of the Supreme Court, it is competent for a state to extend the rule into the realm of maritime law, as perhaps was held in Buttner v. Adams, supra.

26 F.(2d) 21

struction; and a literal application of a statute, which would lead to absurd consequences, should be avoided whenever a reasonable application can be given to it, consistent with the legislative purpose." United States v. Katz, 271 U. S. 354, 46 S. Ct. 513, 70 L. Ed. 986.

The principal provisions of the federal "all laws are to be given a sensible constatutes 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;

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Comp. St. § 8028).

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[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 an ancient one, and "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. C. 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 ceedings consistent herewith.

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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 charging several defendants with same offense

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.

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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 his knowledge or consent, held sufficient to esit, and that car was subsequently taken without tablish 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. Kelley, Asst. U. S. Attys., both of Oklahoma 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

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