the District Court restraining him and others "from selling, transferring, giving away, or otherwise disposing of any and all funds of said G. Frank Croissant Boca Raton Syndicate, and any other funds, or parts thereof, held by them and which are comprehended within the pleadings," and restraining all persons from legal proceedings against the property of the syndicate held by any of the defendants; and from the denial of a motion on behalf of Croissant to remove certain attorneys appearing in the action for defendants Preschern and the Union Bank, on the ground that they had formerly acted for defendant Croissant in matters important in the suit, and in regard to which the position of Croissant is "drastically antagonistic" to that of the other defendants.

Frank E. Adams on September 10, 1927, brought suit as one of a class of holders of certificates in the G. Frank Croissant Boca Raton Syndicate, and as purchaser of a lot sold by the syndicate in its Boca Raton development, averring that defendants Preschern and the Union Bank of Chicago, of which Preschern was vice president and trust officer, on or about August 15, 1925, became trustees of the syndicate organized for the purchase and development of a tract of Florida land, and that as such they had collected money paid by purchasers of membership certificates in the syndicate; such certificates stating that in the event the land was not purchased by January 2, 1926, the subscriptions would be refunded.

It was further charged that Preschern and the bank received as trustees a sum exceeding $1,500,000 for the purchase of such Florida land, of which they paid $760,000 to an irresponsible person, Boyland, for contracts relating to the land intended for the development, which was lost to the syndicate by Boyland's default; that on December 15, 1925, Croissant succeeded Preschern and the bank as trustee, and collected about $500,000 in that capacity; that there were more than 750 subscribers to the syndicate, who, because of the failure of the syndicate to acquire title to the land, it is alleged, are now entitled to the return of their subscriptions.

The bill prayed for an accounting, dissolution of the trust, and judgment against the defendants for such sums as were lost by their dereliction.

Croissant answered, making the same allegations as Adams as to Preschern and the bank, elaborating upon them in regard to the attempted purchase of land, but denying the charges as to his own conduct. He admits that as trustee he collected and borrowed

27 F. (2d)-4

large sums of money, most of which became lost to the syndicate through payments as commissions, salaries, interest on mortgages, and for development work, and charges that, but for the conduct of the other defendants, he would have carried out the project, and have sold lots to the sum of $40,000,000, and have earned for himself $6,000,000, instead of which he has been required to pay out over $1,000,000, in part his own money, to certificate holders and purchasers of lots.

The answer prayed an accounting by Preschern and the bank, on behalf of both the syndicate and Croissant individually, for moneys advanced by him, and for judgment against them for losses sustained because of their unlawful acts.

The answers of defendants Preschern and the bank denied that they had ever been or acted as trustees of the syndicate, but admitted the bank received a large sum as subscriptions to the syndicate, and paid out large sums, but always at the request and with the authorization of Croissant; that the attempted purchase of land was by men associated with Croissant, and not by Preschern or the bank, and that with the knowledge of the members of the syndicate Croissant spent large sums for purposes other than those of the trust; that, for a loan to Croissant of $100,000 by the bank, Croissant had assigned as collateral his claims for deferred commissions, and his beneficial interest in the trust, for all of which the bank claims to be entitled to indemnity from Croissant and a lien on his interest in the syndicate; that other parties, associated with Croissant, had likewise borrowed from the bank and assigned their interests as security; and it was prayed that they be made parties and required to account, and that Croissant be removed as trustee, and a receiver be appointed, the trust wound up, and the assets protected by temporary and permanent injunctions.

Numerous affidavits and exhibits accompanied these pleadings, revealing an unusually involved and confusing situation, a diversity of claims, and little assurance of the existence of assets sufficient to meet them all. Croissant moved the court to require the attorneys representing Preschern and the bank to cease from further representing them in the cause, and on the hearing of this motion the court denied it, and entered the interlocutory injunction complained of. [1] The record shows a complicated and unusual situation, one in which it was not only within the discretion of the court to preserve the assets by injunction pendente lite, but where a failure to so protect them might more

properly have given ground for complaint. Any party deeming the pendency of the injunction harmful to his interest may by appropriate action undertake to speed the cause, and in view of the many interests apparently involved we indulge the hope that it has already so far progressed that its disposition may quickly follow.

[2] As to the complaint of the court's action on the motion to remove or dismiss certain attorneys appearing in the cause, we do not feel this is a matter whereon appeal will lie at this stage of the cause. The statute which alone confers authority to entertain appeals from interlocutory orders and decrees does not authorize appeal from an order such as this. 28 U. S. Code, 227 (28 USCA § 227). The order for interlocutory injunction is affirmed.

Appeal from the District Court of the United States for the District of Maryland, at Baltimore; William C. Coleman, Judge.

Libel by Griffin Fauntleroy against the steamship Pacific, claimed by the Argonaut Steamship Line, Inc., and the Atlantic Coast Shipping Company, Inc. Decree for respondents (23 F.[2d] 218), and libelant appeals. Affirmed as to respondent last named, and as to claimant reversed and remanded, with directions.

George T. Mister, of Baltimore, Md., for appellant.

Frank B. Ober, of Baltimore, Md. (Janney, Ober, Slingluff & Williams and Robert Stinson, all of Baltimore, Md., on the brief), for appellee Argonaut S. S. Line, Inc.

L. Vernon Miller and Fendall Marbury, both of Baltimore, Md. (William L. Marbury, of Baltimore, Md., on the brief), for appellee Atlantic Coast Shipping Co., Inc. Before PARKER and NORTHCOTT,

Inc., et al.

THE PACIFIC.

Circuit Court of Appeals, Fourth Circuit. June 12, 1928.

No. 2707.

1. Shipping 86 (2%)-Res ipsa doctrine held applicable to injury sustained by winch man loading ship, resulting from fall of barrel of iron turnbuckle from aloft.

In libel by winchman employed in loading ship lying at dock to recover for injuries sustained by fall of barrel of iron turnbuckle from aloft, doctrine of res ipsa was applicable, in view of reasonable certainty that injury would not have happened had proper precautions been taken by ship's officers.

Judge.

GRONER, District Judge. Libelant was a winchman employed by the Shipping Company to load the steamship Pacific, then lying at a local dock in Baltimore harbor. The loading was begun on Monday, and he sustained an injury on the following Saturday, while working the winch at No. 2 hatch, by the fall of the barrel of an iron turnbuckle from aloft. The turnbuckle consisted of a barrel with right and left hand screws and two eye bolts, one in the cross-tree and one in the head of the Samson or heavy derrick boom. It was one of a pair used to fasten this boom to the cross-tree on the mast some

or 14 inches long and about 2 inches in diameter. It had a hole through its middle, into which a rope could be passed to lash it to the mast. The Samson boom was longer and heavier than the regular cargo booms, and was only used in heavy cargo lifts. When at sea, the boom was secured fast against the mast. When about to be used, it was slacked off from the mast and lowered to the position required for operation.

During the week preceding the accident, the ship's smaller cargo booms had been used, but it was intended to use the Samson boom the day succeeding the accident, and this was done. There was evidence on behalf of the vessel that the lashings of the turnbuckles of the Samson boom had been inspected the day before the injury and found in order. The greater weight of the evidence, however, is to the effect that the Samson boom had at

some time prior to the accident been lowered by the ship's crew some 7 to 10 feet from the mast, leaving the turnbuckles hanging down from the cross-tree of the mast; the barrel that fell being screwed to the bolt fastened to the cross-tree.

[1] The District Judge was of the opinion that, since there was no evidence directly explanatory of the cause for the falling of the turnbuckle barrel, libelant had failed to discharge his obligation to prove some negligent act on the part of the ship or his employer, the stevedoring company, and that the res ipsa doctrine was not applicable. This we think was error as applied to the vessel, for, while it is true that as to libel ant, an employee of an independent contractor, the vessel was not required to do more than to exercise reasonable care to furnish him a reasonably safe place and reasonably safe appliances, and to inspect the same from time to time, circumstances taken as a whole unmistakably point to the conclusion that the fall of the turnbuckle barrel would not have occurred if these duties had been properly discharged. There is nothing in the case which to us supports the theory of inevitable accident, but, on the contrary, there is evidence from the ship's own witness, the mate, that the thing that happened might reasonably have been anticipated if certain precautions to avoid it, namely, the lashing of the barrel to prevent its turning, had been seasonably taken.

It is quite true that the boatswain testified he made an inspection the day before the accident, and found everything in order; but it is apparent, if his testimony is accepted, that he referred to a time previous to the lowering of the boom from the mast, for it is quite obvious that, if the condition in which he declared he found the fastenings had remained unchanged, the barrel could not have fallen, and it is equally obvious that, in the process of lowering the boom and unlashing the rope fastening, the barrel, from the vibration of the winches, might easily become unscrewed and fall, and this danger was peculiarly within the knowledge of the ship's officers, and imposed in itself

the duty of frequent inspections to avoid just what did occur, and this necessitates the conclusion, either that the boatswain's statement as to his inspection the day preceding the accident is inaccurate, or else that the fastenings were later removed, and no further inspection made and nothing done to prevent the buckle turning and falling. [2-4] It was the duty of the ship to furnish loading tackle free from defects. It was likewise its duty to see that all reasonable safeguards were taken after the lowering of the boom to safely secure the turnbuckle and its parts to the cross-trees of the mast. If this had been done, it would not have fallen, and libelant would not have sustained an injury, and we do not think that this obligation is discharged by showing that, before the boom was lowered away from the mast, an inspection disclosed the screws in the barrel had been turned and the barrel lashed in the customary manner, for such evidence spoke of a condition which had been subsequently changed. Neither libelant nor his employer, the stevedore, were charged with any duty in respect to this part of the ship's tackle. Each had a right to assume that it was free from any defects not observable in the exercise of ordinary care. Whatever duty there was to fasten the turnbuckle, so that it would not fall, was imposed on the vessel.

In these circumstances, we think that the absence of explanation on these subjects together with the reasonable certainty that the thing which happened would not have happened, had proper precautions been taken, make applicable the doctrine rejected by the District Court. The decree of the lower court will therefore be affirmed as to the respondent the Atlantic Coast Shipping Company, Inc., and reversed as to the Argonaut Steamship Line, Inc., owner of the ship, and the case remanded to the lower court, with instructions to allow libelant such damages as may be proper.

Affirmed as to the Atlantic Coast Shipping Co., Inc.

Inc.

Reversed as to Argonaut Steamship Line,

COLUMBIA RY., GAS & ELECTRIC Co. v.
STATE OF SOUTH CAROLINA et al.
COLUMBIA RY., GAS & ELECTRIC CO.
et al. v. SAME.

Circuit Court of Appeals, Fourth Circuit.
June 12, 1928.

Nos. 2737, 2738.

1. Street railroads 3-Street railroad companies are "public service corporations," subject to state and municipal supervision.

Street car companies, as well as railroad companies, are "public service corporations," as owing their existence to sovereign power, exercising power of eminent domain, primarily created and organized in public interest, and charged with duty of maintaining and conducting enterprise under supervision and control of state and municipal legislative and executive authorities.

[Ed. Note.-For other definitions, see Words and Phrases, Second Series, Public Service Corporation.]

2. Street railroads 18-Street car company holds special privileges, conferred in consider ation of providing public transportation facilities, as agent and trustee of sovereign power. Special privileges conferred on street car company, in consideration of providing facilities for public communication and intercourse, are held by it as agent and trustee of sovereign power, and are in no sense private, but continue to be portion of public interests after grant.

3. Street railroads 66-Street car companies cannot disable themselves from performing functions in consideration of which special privileges were granted them by public.

Street car companies may not by their own acts disable themselves from performing functions in consideration of which public grant of special privileges was made.

4. Bankruptcy43-Creditors' loss and public hardship by discontinuance of service should not be augmented by enabling street car company to declare itself bankrupt

(Bankr. Act [11 USCA]).

Great financial loss to creditors and serious. embarrassment and inconvenience to public by summary discontinuance of street car service should not be augmented by enabling street railway corporation to declare itself bankrupt under Bankruptcy Act (11 USCA), and avoid liability for its debts and obligations through bankruptcy court.

5. Bankruptcy 11-Bankruptcy court exclusively administers Bankruptcy Act (11 USCA).

The bankruptcy court enforces and administers the Bankruptcy Act (11 USCA), not concurrently with, but exclusive of, other courts. 6. Bankruptcy ~43-Street railway companies cannot be adjudicated bankrupts; “railroad" (Act June 25, 1910, §§ 3, 4 [11 USCA § 22], amending Bankr. Act, § 4, as amended by Act Feb. 5, 1903, § 3).

Street railway company is not entitled to adjudication as bankrupt, in. view of Act June

25, 1910, §§ 3, 4 (11 USCA § 22), amending Bankruptcy Act, § 4, as amended by Act Feb. 5, 1903, § 3, by providing that any person "except a municipal, railroad, insurance or banking corporation" may become a voluntary bankrupt; word "railroad," which, in absence of anything indicating its use in restricted sense, should be given its broadest signification, including street railways.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Railroad-Railway.]

7. Bankruptcy43-Electric railway company, operating lines in city and neighboring villages, held suburban or interurban street railway, not entitled to adjudication as bankrupt, rather than simple street railway (Act S. C. Sept. 16, 1891 [20 St. at Large, p. 1453]; Act Cong. June 25, 1910, §§ 3, 4 [11 USCA § 22], amending Bankr. Act, § 4, as amended by Act Feb. 5, 1903, § 3).

Columbia Railway, Gas & Electric Company, operating about 20 miles of electric trolley lines in city of Columbia, S. C., and neighboring villages, as authorized by Act S. C. Sept. 16, 1891 (20 St. at Large, p. 1453), held more of a suburban or interurban street railway, included in word "railroad," as used in Act Cong. June 25, 1910, §§ 3, 4 (11 USCA § 22), amending Bankruptcy Act, § 4, as amended by Act Feb. 5, 1903, § 3, prohibiting railroad corporations from becoming bankrupts, than simple street railway in one town or city.

8. Bankruptcy ~43-Street railway company's discontinuance of service before inaugurating bankruptcy proceedings did not entitle it to adjudication (Act June 25, 1910, §§ 3, 4 [11 USCA § 22], amending Bankr. Act, § 4, as amended by Act Feb. 5, 1903, § 3).

That street railway company had discontinued service on its car lines at time of inaugurating voluntary bankruptcy procedings did not entitle it to adjudication as bankrupt, under Act Cong. June 25, 1910, §§ 3, 4 (11 USCA § 22), amending Bankruptcy Act, § 4, as amended by Act Feb. 5, 1903, § 3.

9. Bankruptcy 391 (4)-Order staying mandamus proceedings in state court pending bankruptcy proceedings by respondent street railway company was properly vacated on dismissal of bankruptcy petition (Act June 25, 1910, 3, 4 [11 USCA § 22], amending Bankr. Act, § 4, as amended by Act Feb. 5, 1903, § 3).

Order adjudicating street railway company aside, bankruptcy denied, and petition dismissed, as voluntary bankrupt having been properly set in view of Act June 25, 1910, §§ 3, 4 (11 USCA § 22), amending Bankruptcy Act, § 4, as amended by Act Feb. 5, 1903, § 3, order staying mandamus proceedings in state court to compel resumption of street railway service pending bankruptcy proceedings became ineffective, and was properly vacated and annulled.

Appeals from the District Court of the United States for the Eastern District of South Carolina, at Columbia, in Bankruptcy; Ernest F. Cochran, Judge.

Petitions by the Columbia Railway, Gas & Electric Company and another for adju

power plant of the Congaree Electric & Power Company under the aforesaid merger act of 1891.

In June, 1925, under authority of the act of the South Carolina Legislature of March 19, 1925 (34 St. at Large, p. 842), the Columbia Railway, Gas & Electric Company executed a deed purporting to convey to the Broad River Power Company which owned all the common stock and a majority of the preferred stock in the Columbia Railway, Gas & Electric Company, all its gas, electric light, power, and other property rights and franchises, except certain rights and properties connected with the railway service. After such transfer, the Columbia Railway, Gas & Electric Company continued only a railway passenger service, until March 11, 1927, when it discontinued all railway op

erations.

WADDILL, Circuit Judge. These two appeals were heard together upon a single record and will be so disposed of in this court. The litigation involves the properties of the Columbia Railway, Gas & Electric Company, and the operation of the same, and arises particularly in the bankruptcy proceeding pending in the United States District Court for the Eastern District of South Carolina, and upon the orders and decrees seeking to stay certain proceedings pending in the Supreme Court of South Carolina also affecting said properties.

The Columbia Railway, Gas & Electric Company was created by act of the South Carolina Legislature of September 16, 1891 (20 St. at Large, p. 1453), authorizing the merger and consolidation into one company of the franchises and powers of various public service corporations, whose franchises and functions are fully described in the opinion of the court below (24 F.[2d] 828), to furnish the public utilities of gas, electric light and power, and transportation service to the city of Columbia, S. C., and vicinity, under authority duly secured for that purpore. The corporation so created operated a passenger service on the electric trolley lines constructed by it and the other companies whose properties it had acquired, in Columbia and other neighboring towns and communities, namely, the villages of Arden, Eau Claire, and Shandon, the system having a total trackage of about 20 miles. The company also furnished gas, electric light, and power to the public, having acquired the

the state, by the state of South Carolina, to compel the Columbia Railway, Gas & Electric Company, the Broad River Power Company, and F. D. Campbell, president and general manager of both companies, to resume the railway service. Other parties interested in the furnishing of transportation in the city of Columbia were allowed to intervene in said proceeding. On July 28, 1927, the South Carolina Railroad Commission, which had been petitioned by the Columbia Railway, Gas & Electric Company to be allowed to discontinue its railway service, issued an order directing the railway company and the Broad River Power Company to restore the service abandoned on March 11, 1927, saying in its order that it appeared that the power company had undertaken to strip the railway company of its assets and had left it with its liabilities, and that the transaction was apparently one of bad faith, and subject to be set aside by law. On January 11, 1928, the state Supreme Court entered an order referring all issues of law and fact in the proceeding before it to a special referee, who fixed a hearing for January 25, 1928.

On January 24, 1928, the Columbia Railway, Gas & Electric Company filed its petition in the District Court for the Eastern District of South Carolina, praying that it be adjudicated a voluntary bankrupt. It also filed in the District Court its petition praying for a stay of the proceedings in the state court. The railway company was on that day duly adjudicated a bankrupt, and a temporary stay of the proceedings in the state court was granted, and the petitioners