ner, was a longshoreman or dock hand employed by the appellant about its docks at Berkley, on the southern side of the Elizabeth river, at Norfolk. His labor was to work trucking around the dock, and on barges, carrying trucks from the dock to the barges and back. On 22d August, 1913, a barge lying at the dock of appellant loaded with goods was about to be transferred across the Elizabeth river to the dock of the Old Dominion Steamship Company. The chief clerk of appellant on its dock called Skinner and directed him to go on the barge and carry the package of waybills across to the Old Dominion Steamship Company's dock. Skinner, in pursuance of instructions, went on the barge. He appears to have been the only person on the barge, as the barge had no crew. It was operated when towed by the crew of the appellant's tug, which did the towing. The barge was about 100 feet long and 30 feet wide and was then drawing not over 12 to 15 inches of water. It was a barge with a closed cabin or house built upon the deck of the barge. Between the sides of the house and the gunwale or side of the hull of the barge was a walkway or runway about 12 to 13 inches wide. For the support and protection of persons on this runway a line, called in the testimony the lifeline, was stretched along the side of the house two or three feet above the surface of the runway, and held to the side of the house by supports or fastenings at proper intervals; so that any one walking along the runway could hold this line to steady and support himself against falling off the barge. The appellant's tug Lynnhaven approached to tow over the barge about 5:10 p. m. The mate was off duty eating his supper. The captain was at the wheel of the tug, and the deck hand was handling the lines near the forward bitts of the tug. The captain called to Skinner, who was on the barge, apparently at one end of the barge, to put his hawser over a bolt on the corner of the barge, which Skinner did, and the tug then hauled the barge clear of the dock out into the stream, and the captain, wishing to make fast alongside the barge, slackened up on the hawser, and told Skinner to slip the hawser over the bolt and up to the bitt about amidships of the barge. This required Skinner to walk along the runway on the edge of the barge. He slipped the hawser over the bolt and attempted to carry it to the other bitt. The captain saw that, with the tug and barge drifting apart, Skinner was in danger of being pulled overboard, called to him to let the hawser go, and then backed the tug off the barge. He backed away some distance, and then went ahead again, in order to get up to the barge, which was drifting in the stream, so as to fasten his hawser to the barge. As he approached the barge, Skinner was standing on the runway of the barge. The tug struck the barge, shoving or swinging the barge away for several feet, and, from the force of the impact, causing Skinner to lose his balance, or his hold on the lifeline, and be precipitated over the side of the barge into the stream, when, after some ineffectual efforts on the part of the crew of the tug to rescue him, he was drowned. The libel charges that the drowning resulted from two acts of negligence on the part of the tug's crew, viz.: (1) That the tug in approaching the barge carelessly and negligently struck the barge with great and extraordinary force and vio

lence, by reason of which the deceased was thrown overboard; (2) that no reasonable or proper efforts were made by the crew of the tug to save him, and had such efforts been made he would have been saved.

The learned judge who tried the case in the court below makes no specific findings as to the acts of negligence on which he bases his conclusion, but finds generally that "the deceased lost his life solely as the result of negligence of the defendant company and its servants and without fault on his part." There is another act of negligence claimed by the appellee as evidenced by the testimony, and which the appellee, in his argument, relies upon for affirmance of the decree below, viz.: That Skinner was an inexperienced person, who was directed by the captain of the tug to perform a piece of work he was entirely unfit and unqualified to perform, and lost his life in consequence; that the work he was required to perform was to walk along the narrow runway on the edge of the barge, and place a hawser over the bitt, that being a thing a green or inexperienced hand cannot perform with safety to himself.

The evidence does not seem to show that the blow struck by the tug on the barge when approaching for the purpose of making fast in the stream was of extraordinary or unusual violence. Neither the tug nor the barge appear to have been injured. The coming together of two such boats in midstream, both more or less in motion, is always accompanied by some jar or thump, and there is nothing in the testimony to show that the contact in this case was more violent than is usual in similar cases. There does seem to have been delay in the efforts to rescue Skinner due to the absence of the best facilities. The deck hand who endeavored to throw the line had a line apparently too heavy for him to fling far enough to reach Skinner where the latter was in the water, although a lighter line might have accomplished the purpose. There was no ring buoy or life preserver at hand at that juncture for the deck hand to fling to Skinner. The deck hand. had to go up the side of the house of the tug to the deck above, near the pilothouse, and break open a box to get out a life preserver, and when he flung the life preserver the tug had drifted so far from Skinner the life preserver failed to reach him. From all the evidence it would appear that the drowning was the result of a chain of circumstances. Skinner was too inexperienced or too careless to handle himself on the runway of the barge, and the unexpected (to him) force of the jar and sheer caused by the tug striking the barge precipitated him overboard. He seems to have been unable to swim, and the lack of having at hand the proper facilities on the tug to rescue him caused a delay which made the efforts at rescue futile.

[4, 5] Assuming that Skinner's ignorance and inexperience with the act of the captain in putting him in a dangerous position were not in issue as not having been alleged in the libel, then the decree of the court below, construed as being responsive to the libel, found as a conclusion of fact that the respondent was guilty of negligence in one or both of the particulars charged in the libel. It seems to this court that if an employer requires its employés to work in a place where they may be subjected to the danger and peril of being precipitated

into the water, as in the present case, there should be provided devices and facilities reasonably fit and accessible to ward off a fatal eventuation by effecting a rescue if reasonably possible. It seems also that under the rather informal proceedings in admiralty, that unless the defendant pleads surprise, and procures a continuance for preparation, it is not improper for a court of admiralty, in its discretion, to allow testimony as to concurring circumstances, indicating negligence, and to base a decree thereon, although not particularly or specifically pleaded in the libel, especially when the circumstances are such as in the present case, the dangerous character of the work required to be done on the runway by Skinner if performed by an inexperienced man. There seems to have been no one but Skinner on the barge. In obeying the captain's orders to make fast the tug to the barge, he was obeying the orders of one who he had a right to assume was, under the circumstances of this case, a superior employé of the common employer whose orders he was required to obey.

[6] The general rule is that the decision of the judge below in an admiralty cause on questions of fact, where there is conflicting testimony, or the credibility of witnesses is involved, and the witnesses have been examined before the judge below, will not be reversed unless manifestly contrary to the evidence. In the present case we do not find that the conclusions of the learned judge who tried the cause below and heard the testimony can be said to be manifestly against the evidence upon the questions of fact involved, but, on the contrary, that as a whole there is sufficient evidence to support them, and the decree below is accordingly affirmed.

Affirmed.

SUHOR et al. v. GOOCH.

(Circuit Court of Appeals, Fourth Circuit. July 6, 1917.)

No. 1514.

1. HUSBAND AND WIFE 34-ANTENUPTIAL SETTLEMENT-FRAUD-CONCEALING CONTENTS EVIDENCE.

That the man procured the woman's signature to the antenuptial settlement contract without her knowledge of its contents, claimed as ground of fraud for setting it aside, held disproved by the positive evidence, opposed only by statement of the woman's mother that, so far as she knew, her daughter had not seen the paper. 2. HUSBAND AND WIFE

TIATIONS.

31(2)-ANTENUPTIAL CONTRACT-MERGER OF NEGO

In an antenuptial settlement contract executed with knowledge of its contents were merged all promises and negotiations for settlement of a greater amount.

3. HUSBAND AND WIFE 34-ANTENUPTIAL SETTLEMENT-RELEASE OF WIFE'S INTEREST-GROSS DISPROPORTION-PRESUMPTION.

There is no such gross disproportion between an antenuptial settlement for $50,000, with relinquishment by the woman of her interest as wife in the man's estate, and her expectancy, he being then worth $200,000 in personalty and $40,000 in realty, as to raise presumption of his concealment or failure to disclose the value of his property.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

4. HUSBAND AND WIFE 33-ANTENUPTIAL SETTLEMENT-EFFECT OF SUICIDE.

Suicide of husband is not a fraud on the wife invalidating their antenuptial settlement.

Appeal from the District Court of the United States for the Eastern District of Virginia, at Richmond; Jeter C. Pritchard, Judge.

Suit by Margaret Corwin Radcliffe Gooch against Annie Wayne Suhor and others. Decree for plaintiff, and defendants appeal. Reversed.

S. S. P. Patteson and H. M. Smith, Jr., both of Richmond, Va. (Robert E. Henley, of Richmond, Va., on the brief), for appellants. Edward P. Buford, of Lawrenceville, Va. (Marshall R. Peterson, of Lawrenceville, Va., C. T. Baskervill, of Boydton, Va., and S. E. Williams, of Lexington, N. C., on the brief), for appellee.

Before KNAPP and WOODS, Circuit Judges, and SMITH, District Judge.

WOODS, Circuit Judge. W. H. Gooch and Margaret C. Radcliffe were married on October 14, 1915, at Lexington, N. C. Immediately before the marriage an antenuptial contract was executed by which Gooch promised in consideration of marriage that he would pay or cause or provide to be paid one year after his death to the Old Dominion Trust Company $50,000 in trust to pay the interest to his wife, Margaret, for her life or widowhood, and upon her death or second marriage to pay the principal as directed by his will, and upon failure of testamentary disposition to his children and their issue. Miss Radcliffe, in consideration of marriage and the provision for her above set out, agreed to accept from Gooch's executor, administrator, or heirs the settlement in lieu of her dower rights and all other rights in Gooch's estate, real and personal. On the same day husband and wife left on a trip to California. On this trip, one month after the marriage, Gooch was found in their apartment on a railroad train in Texas dead from a pistol shot supposed to have been self-inflicted. He left no will, and the only persons interested in his estate are his widow and his daughter, Annie W. Suhor, and her husband, George Suhor. Pending a controversy in the state courts as to the right of adminis tration, the Old Dominion Trust Company was appointed curator of the estate. On January 24, 1916, the widow instituted this suit against Mrs. Suhor and her husband and the Old Dominion Trust Company to have the antenuptial contract annulled on the ground that Gooch obtained her signature to it by imposition and fraud. The District Court in a formal decree held that the allegations of the bill were sustained by the evidence, and set aside the settlement as fraudulent. Three specifications of fraud are relied upon by Mrs. Gooch: First. Imposition by Gooch in procuring her signature to the document without informing her of its meaning, and in violation of his promise previously made to settle on her a home worth $10,000 to $12,000 and an income of $3,000 to $4,000 a year.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Second. Concealment by Gooch of the value of his property while taking a relinquishment of his intended wife's interest in it for the consideration of a settlement grossly disproportionate to the value of the share of his estate she would have received on his death but for the settlement.

Third. Suicide immediately after marriage by which he fraudulently cut off her prospects of enjoying his estate and receiving gifts from him.

Because of the death of Gooch and the consequent incompetency of his widow to testify in the cause, the record consists chiefly of the evidence of Mrs. Radcliffe, the mother of Mrs. Gooch, and their correspondence with Gooch. This correspondence, taken with the other evidence, reveals the characters and attitude of the parties to it. Gooch was an illiterate man of natural force, about 50 years old, who had accumulated about $240,000. He had been divorced from his first wife, on whom he had made a settlement of the interest on $36,000 for her life. Afterwards he had association with a woman named Beulah Dickerson, who had given birth to a child and imputed to him. its paternity. He was fond of his daughter, Mrs. Suhor, and had made to her numerous valuable gifts. After his engagement to Miss Radcliffe he gave her generously jewels and other articles and $570 in money. He was petulant, suspicious, jealous, and capricious, and these characteristics, according to Mrs. Radcliffe, were made known to her and her daughter openly and very disagreeably after the engagement. The engagement began in 1913, was broken in July, 1914, and renewed in July, 1915. After the renewal Gooch wrote a letter which Mrs. Radcliffe and her daughter considered highly insulting. He several times postponed the marriage, and entered into it with reluctance on the day last fixed only after Mrs. Radcliffe had insisted that the marriage should take place at the time appointed or not at all. No invitations were issued for fear Gooch would be unwilling to marry at the time appointed. One probable cause of this reluctance. was anxiety over his former relations with Miss Dickerson and apprehension from threats of personal violence made by her. But the correspondence shows that another cause was his doubt of a happy result. Great as were his faults and sins, his acts of generosity go far to repel the suggestion that he would contrive a scheme to defraud the woman from whose companionship he hoped to derive happiness.

Miss Margaret Radcliffe was an educated teacher of music, 24 years of age at the time of her marriage. She was of social standing far above Gooch, and apparently had little, if anything, in common with him. Her mother, also an educated teacher, was her companion and intimate adviser in the affair. The letters of Gooch to Mrs. Radcliffe and Margaret, their letters to him, and the personal associations described by Mrs. Radcliffe indicate an engagement of bickerings and disagreements. Mother and daughter knew of his divorce. and of his fear of Miss Dickerson, though apparently not of any sexual relations he may have had with her. The affair with Miss Dickerson they treated as the subject of merriment and contempt, rather than of objection, or of sympathy for Gooch's distress over it. Gooch's