lines were promptly furnished to the Balto after daybreak by means of a work boat manned by the second mate and by Ericcson and Johnson, two seamen. Two lines were carried by these men to the Balto, by means of which two steel cables furnished by the Elkridge were hauled aboard and made fast to the Balto's anchor chain. The Elkridge proceeded with the Balto in tow at 8 a. m. February 8th, and brought her safely to Honolulu on February 21st at 3:30 p. m. The towing operation thus consumed 14 days and covered 2,240 miles. After remaining in port 24 hours to take on necessary supplies, the Elkridge proceeded without unnecessary delay to her original port of destination. Her actual loss of time in rendering the salvage service was 14 days.

The towing operation proceeded without difficulty until February 10th, when strong winds were encountered and high following seas. At about 11 p. m. on the 10th the Balto's anchor chain, to which the cables from the Elkridge were shackled, parted. The Elkridge thereupon stood by until morning, when, the wind having moderated, the second mate and the two seamen, who had manned the boat with him on the morning of the 8th, put out from the Elkridge in the same boat and successfully carried two lines to the Balto by means of which the cables were again taken aboard and made fast. Although there was a large swell running at the time, no great danger to the men in the small boat was apprehended, either by the men themselves or by those who remained on board the two ships. The small boat was lowered from the starboard side. When the lines had been carried to the Balto and the men in the small boat were ready to come aboard the Elkridge, she lay with her starboard side to the weather. There were no davits on the port side by which the boat could be raised to the deck of the ship. In order to bring the men aboard on the lee side, it would have been necessary to maneuver the ship so as to bring her port side to the weather. This could not be done until the towing lines were fast. The day was cold and the men in the small boat were suffering from their exposure.

Perhaps not hearing, but in any event disregarding, instructions given from the bridge, the men in the boat came around to the windward side, where an attempt was made to bring them aboard in the boat by means of the davits. The tackle from these davits was fitted with hooks, which were designed to be hooked into rings in the bow and the stern of the boat. In the bow of the boat there was a crummet, by means of which a man could

prevent the ring from coming off the hook. There was no such appliance in the stern of the boat, and the only way the stern ring could be held on the hook was by hand. While the men on board were attempting to raise the boat, she was caught by a heavy swell, which lifted her stern and detached the hook from the stern ring. When the stern dropped with the wave, all three men were thrown into the water. Life buoys were thrown to them from the ship, and a boat was promptly let down from the davits on the lee side. Two of the men wore rubber boots, and none of them had life preservers. One of the seamen was picked up, but the other two, who were clinging to a single life buoy, soon went down and were lost. The man who survived suffered severely from the cold, but was quite all right a few hours after being brought on board. There was no difficulty in launching the boat on the lee side of the ship, or in taking it aboard. Except for several days of rough and stormy weather, the towing operation proceeded without further incident, and the two vessels arrived safely at Honolulu 11 days later.

While the launching and handling of an open boat in mid-ocean must always involve danger, the loss of life in this case resulted from the attempt to take up the boat on the windward side of the ship, without adequate means for securely fastening the davits to the stern of the boat. The fact remains, however, that these men were lost in rendering service which was hazardous, even in the exercise of the utmost care and skill, and, while it may be said that the accident was in a measure due to their own fault, this fact does not detract from the value of the service actually rendered, and is important only as showing that the dangers which they encountered might have been avoided, had they been willing to remain in the open boat, at considerable discomfort and some risk, because the wind was freshening, until the ship had been turned, so as to enable them to come up on her lee side.

[1, 2] The basis of award is the service rendered. Hence it is quite as erroneous to say that loss of life is to be compensated, as in an action for negligently causing death, as it is to say that there can be no consideration given to the accident, because the men were careless of their own safety. The entire situation must be judged, with all its attendant circumstances, including the accidental loss of life, in an effort to arrive at a just determination of the fair and reasonable value of the salvage service rendered. The elements of value are the value of the ship which was

saved, the nature of the dangers from which the ship and her crew were rescued, the value of the salving vessel, and the dangers which she and her crew incurred in performing the service. The skill, promptitude, and success with which the service was performed, the additional labor imposed upon the members of the crew of the salving vessel, her loss of time and out of pocket expense, must also be taken into consideration.

[3] In this case difficulty arises because of the length of the towage, as compared with the value of the property saved; but in considering such a case it must not be forgotten that the service was necessary to save the ship, which was worth nothing if abandoned to her fate. For this reason too much emphasis should not be placed upon the percentage of salved value to be awarded. The service rendered must be fairly compensated, even if the owners who have recovered their property find the payment burdensome. Except for the men engaged in boat service, there was no great danger to the salvors or their property involved. The service, however, was rendered promptly, skillfully, and with complete success. The total out of pocket expense, including fuel consumed, amounted to $8,372.64. Claim is made that the award should include the cost of insurance and administrative expense, amounting to approximately $1,600, and, in addition, the reasonable value of the ship's time consumed in the service.

[4] In behalf of the Balto it is insisted that the Elkridge had for some time been operated at a substantial loss, was immediately laid up on completion of her voyage, and that consequently no allowance should be made for time lost. It is also insisted that insurance and administrative expense were not increased by reason of the salvage service. If it had appeared that the ship was engaged in a very profitable service, and had actually suffered a loss of profit, this would be an element to be taken into consideration; but the fact that she had on prior voyages incurred a loss does not deprive her of the right to recover the reasonable value of the salvage service rendered, including actual out of pocket expense. General administrative expense and cost of insurance should not, however, be included in out of pocket expense, because those expenses cannot be said to have resulted from the salvage service.

[5] Keeping in mind the elements which are to be considered in determining a salvage award, and the awards which have been made in other cases, I shall fix the amount of the award in this case at $25,000, plus out of

pocket expenses of $8,372.64. Of this award the sum of $1,000 shall be apportioned to the personal representatives of the men whose lives were lost, in accordance with their ratings, and the sum of $4,000 shall be apportioned to the members of the crew of the Elkridge according to their rating, except that the seaman Johnson, who was saved, shall be entitled to four portions, according to his rating, and the men who manned the boat which picked him up shall be entitled to double portions, according to their ratings.

Decedent, an unmarried Englishman, who, with his brother and sister, had inherited land States and proceeded to Laramie, where they in Wyoming, came with them to the United built a good residence. On entry and at other times decedent stated that Laramie was his home. He took part in local affairs and paid ed to England for the purpose of taking part in Three months after coming, he returnthe Grand Prix Auto Races in France, for which he had made entry before leaving, and while training for the event in England he was accidentally killed. His estate was administered

taxes.

in Wyoming. Held, under the regulations of the department and the general rule that intention is the governing factor in determining domicile, that decedent was a resident of the United

States for the purposes of estate tax on his

estate.

At Law. Action by Richard F. Cooper and Barbara V. Cooper against Marshall S. Reynolds, Collector of Internal Revenue. Judgment for plaintiffs.

A. W. McCollough, of Laramie, Wyo., for plaintiffs.

A. D. Walton, U. S. Atty., of Cheyenne, Wyo., for defendant.

KENNEDY, District Judge. The aboveentitled cause is before the court in the form of an action to recover the sum of $373.52 and interest, on account of estate taxes paid by them as residuary legatees of one John Hartshorn Cooper. The suit is predicated upon the contention that the tax was assessed, collected, and paid under protest upon the government's erroneous theory that the said Cooper at the time of his death was a resident

of England, and that, the decedent actually being a resident of the United States, the rule for taxation in regard to a resident should apply, and the overpayment returned.

The sole point for determination in the controversy is, therefore, the matter of residence of the decedent at the time of his death. Counsel for plaintiffs quote the Treasury De partment rule from the Bureau of Internal Revenue, found in Regulation 65, article 311, which I assume is correct, as it has not been challenged by the opposition, as follows:

"An alien actually present in the United States and who is not a mere transient or sojourner is a resident of the United States for the purpose of the income tax. Whether he is a transient or not is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose, which in its nature may be promptly accomplished, is a transient, but if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien makes his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned."

In all questions touching the determination of residence or domicile of an individual, it has always been a cardinal principle laid down by the courts that the intention of the person whose residence is being considered, is most persuasive. A fair example of the general expression of the courts may be found in the case of United States v. Jorgenson (D. C.) 241 F. 412, where at page 415 that court said:

"The intention of an alien as to his residence or domicile once established is a most important, and usually a controlling, factor in determining his right to citizenship. The question of intention is always one of fact to be determined from both actions and declarations, and ofttimes conduct is more persuasive than words."

The question, then, for determination by the court, is purely one of fact; trial by jury having been expressly waived by the parties.

John Hartshorn Cooper was born in England, of English parentage, and became a captain in the army of Great Britain. He, with his brother and sister, the plaintiffs here,

inherited from the father a considerable estate, which was located in Wyoming. After the death of the father, the interest of the decedent and his brother and sister naturally turned to their inheritance in that state. The plaintiff brother came to Wyoming in 1919, and went to Laramie, where the estate of the father was being administered, and made preliminary arrangements in regard to the erection of a residence, buying some real estate in that city at a considerable price for a community of that size. An architect was employed to draw plans for a very handsome dwelling, and a contract let for the erection of the foundation walls, the general plans of the superstructure to be held in abeyance until he should return to England for his sister and the decedent brother, who were to be consulted and satisfied with the final arrangements of the residence which they were jointly to occupy. The three Coopers came to this country in January, 1921, landing in New York on the 18th day of that month. They came immediately to Laramie, where they began a consultation with respect to the erection of the residence in conference with the architect. Certain changes were made, particularly with respect to the apartments which they severally were to occupy, with a view to suit the convenience and comfort of each individual.

Prior to this, John Hartshorn Cooper had severed his connection with the English army. According to the evidence he had stated to various people that he was taking up his residence in Laramie. Further evidence tending to substantiate this statement as one of honest intention he and his sister acquired from the brother, who had originally purchased it, a one-fourth interest each in the real estate. Contracts were let and, although delays occurred, the erection of the residence proceeded, being eventually completed and occupied by the plaintiffs. Other evidences of intention of the decedent to make Laramie his home appear in his form of conduct in becoming interested in certain civic enterprises at Laramie, personally paying his taxes, including a poll tax, his announced plans for the future in and around Laramie, the investment of some of his personal funds in local securities, and, before his death, paying his proper one-fourth proportion of the expense for the erection of the residence.

Some three months after his arrival at Laramie the decedent returned to Europe for the express purpose of fulfilling an engagement in the Grand Prix Auto Races in France, in which he had made an entry prior

to coming to this country. He repaired to England to practice for the event, but did not go to the place which was commonly known as his former home with his mother, although he, being a bachelor and in the army, had not for several years had a definite and distinct place of abode. During his training for these races he was accidentally killed on May 12, 1921. His estate was administered upon in Albany county, Wyoming, with perhaps some sort of administration upon an interest in some real estate which he still held in England. The most of his personal effects, with the exception of his racing car, were brought with him to Laramie when he came the January previous, and remained there, he taking with him on his return to England only such effects as were necessary for the convenience and comfort of the trip. A certified copy of the certificate of admission of the decedent into this country, taken by the Department of Immigration, shows that the decedent, in answer to the question, "Whether going to relative or friend?" made answer, "Home, Laramie, Wyoming." In answer to the question, "Purpose of coming to United States ?" it was stated, "Temporary visit of three months."

While this review of the evidence does not purport to be complete, it shows the general trend of the testimony introduced by both plaintiffs and defendant. On the side of the plaintiffs we have a clear and undoubted announced intention of the decedent, at the time of his coming to this country in January, 1921, of becoming a resident of Laramie, Wyoming. This is supported by his undisputed acts and conduct, in the performance of those very natural and simple things which go with the establishment of a resi

dence. On the other hand, his former residence was in England, and of course would be presumed to remain there, unless evidence were presented which showed that it had been changed. He remained in this country about three months and returned to his native land. Upon his entry into the country he expressed his purpose as being a temporary visit of three months.

The facts are all undisputed, and, when properly analyzed, I think, quite strongly preponderate in favor of the plaintiffs to the effect that the decedent had actually changed his residence to and resided in this country at the time of his death. All the evidence tends to show that the only purpose of his return to England was to fulfill his engagement in the auto races, and in the light of this fact it can readily be explained that, in his answer to the immigration officials that he was making a temporary visit, he had the idea in mind of returning for this engagement at the end of three months. This theory is substantially strengthened by his answer to the former question, and showed that he had no intention of deceiving the immigration officials, because he represented that he was going to his home in Laramie, Wyo. His advent into this country before the law fixing quotas went into effect could in no way, in my opinion, affect the legality of his entry, or the establishment of his residence after he got here. It would not even bar his acquisition of citizenship. In re Patience (D. C.) 14 F.(2d) 624.

For the reasons stated, the finding and judgment of the court will be for the plaintiffs for the amount claimed, with interest, reserving to the defendant his proper exceptions.

EPPINGER & RUSSELL CO. v. SHEELY.

Circuit Court of Appeals, Fifth Circuit. February 23, 1928.

No. 5074.

1. Jury 131 (5)-Party may, in good faith, inquire whether prospective juror is interested in result because of business relations with adversary.

Party litigant has right to inquire in good faith whether prospective juror is interested in result of suit by reason of business relations with adversary party, in order that he may exercise intelligently his privilege of peremptory challenge, or disclose such interest as would afford ground of challenge for cause.

2. Trial 1082-Injured employee's attorney could ask whether any veniremen were in casualty insurance business, and whether firm of one replying in affirmative was handling such insurance for employer.

In action against employer for injuries to employee, plaintiff's attorney had right to ask veniremen whether any of them were engaged in casualty insurance business, and to ask one replying in affirmative whether his firm was handling casualty insurance for defendant.

8. Master and servant 264 (10)—Variance between allegations that plank was unsound and evidence that it broke under combined weight of two employees held immaterial and not misleading.

Variance, if any, between declaration alleg. ing that plank over waste creosote pit, into which plaintiff fell, was unsound, and that no other way was provided for going over pit to raise drain pipe, and evidence that plank broke when subjected to his and fellow employee's combined weight, held immaterial, and not misleading; cause of accident being well known to defendant employer.

9. Master and servant 286(2)-Whether plank was intended to be used at time of injury to employee when it broke and safer method was available held for jury on conflicting evidence.

Whether plank over waste creosote pit, into which employee fell when plank broke, was intended to be used at time of accident, and whether a safer method of raising drain pipe was available, held for jury on conflicting evidence.

10. Master and servant 235 (7)—Employee, directed by employer to use plank over waste creosote pit whenever necessary to raise drain pipe, held not bound to inspect plank.

Employee, directed by employer to use plank furnished by latter whenever necessary to raise drain pipe in waste creosote pit, into which he fell when plank broke, was not bound to inspect plank.

11. Master and servant 285(1)—Whether creosote poisoning caused employee's cirrhosis of liver held for jury on conflicting expert testimony.

Whether creosote poisoning, resulting from into employee's fall waste creosote pit, caused him to develop cirrhosis of the liver, held for jury on conflicting testimony of employee's and employer's physicians.

Appeal from the District Court of the United States for the Southern District of Florida; Rhydon M. Call and William B. Sheppard, Judges.

Action by J. H. Sheely against the Ep pinger & Russell Company. Judgment for plaintiff, and defendant appeals, pending which Mamie C. Sheely, administratrix of plaintiff's estate, was substituted as appellee on his death. Affirmed.