10 F.(2d) 139 plaintiff's inquiry, and a finding that it was would be merely conjectual. If in our opinion of January 5, 1926, we misconstrued the rule relating to footboards, that does not affect the conclusion there reached. Petition denied. This bill MOORMAN, Circuit Judge. was dismissed for lack of equity. It averred diversity of citizenship between plaintiff and defendant; that plaintiff owned property adjacent to the lines of defendant, a railroad company; that defendant had filed a petition in the probate court of Allen county, Ohio, to appropriate a part of plaintiff's land adjoining its railroad tracks, asserting the necessity of establishing a railroad yard thereon, and unless restrained NATIONAL QUARRIES CO. v. DETROIT, from so doing would proceed to appropriate T. & I. R. CO. 2. Courts 508 (5)—Not presumed that state court would deny complainant his constitutional rights, federal or state. In suit to restrain railroad's appropriation of property, to warrant intervention by federal court, it will not be presumed that state court will deny complainant his constitutional rights. 3. Courts 508 (5)- Bill intended to enjoin prosecution of suit in state court contrary to statute. Bill to restrain railroad company from appropriating land and proceeding with suit in state probate court held objectionable, as aimed to enjoin prosecution of suit in state court, in violation of Judicial Code, § 265 (Comp. St. 8 1242). Appeal from the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge. the property to the irreparable injury of plaintiff. The specific prayer was that defendant "be enjoined from appropriating or attempting to appropriate any of the land," etc., and "from taking the property of the plaintiff or entering upon the same without due process of law." In addition to the allegations indicated the bill presented several questions as to the validity of the appropriation laws of Ohio and the proceedings thereunder in the probate court. These may be grouped into the contentions that the taking of the property would violate article 1, section 19, of the Constitution of the state and also the Fourteenth Amendment of the federal Constitution. [1, 2] If it be conceded that the elements of federal jurisdiction exist, as likewise the power to grant the relief sought, nevertheless there is a question preliminary to those argued by plaintiff which we think is decisive of the case. It arises on the inquiry as to whether the bill shows facts justifying equitable intervention. We think it does not. Among the reasons for this view is the fact that every question arising under the state Constitution that is made here can be made and determined in the proceeding in the state court, and similarly the federal questions may be presented there, with the right of ultimate determination by the Supreme Court of the United States. Furthermore, it does not appear from the facts alleged that the courts of the state have not full power to award adequate compensation if the property is eventually taken. Hence no irreparable damage is shown in the bill. Nor is any other ground of equitable jurisdiction set forth. This is not a suit to enjoin the execution of a void or unconscionable judgment as Marshall v. Holmes, 141 U. S. Edgar J. Matz, of Detroit, Mich. (Clif- 589, 12 S. Ct. 62, 35 L. Ed. 870, and Simon ford B. Longley, of Detroit, Mich., and Leete v. Southern Ry. Co., 236 U. S. 115, 35 S. Ct. & Light, of Lima, Ohio, on the brief), for 255, 59 L. Ed. 492, or against officials to test appellee. the validity of a state statute the penalties Before DONAHUE, MACK, and of which are so oppressive as to amount to MOORMAN, Circuit Judges. spoliation and which would be incurred un Suit by the National Quarries Company against the Detroit, Toledo & Ironton Railroad Company. From a judgment dismissing the bill for lack of equity, plaintiff appeals. Judgment affirmed. G. W. Ritter, of Toledo, Ohio (H. O. Bentley, and Wheeler & Bentley, all of Lima, Ohio, on the brief), for appellant. less the proceedings were enjoined, as Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764. All that defendant has done is file a proceeding to condemn the land and cause a summons to be issued, and, we repeat, every question presented here is available as a defense in that case. In this situation it cannot be supposed that plaintiff will be denied its constitutional rights in the state courts. The case is unlike Water Co. v. Vicksburg, 185 U. S. 65, 22 S. Ct. 585, 46 L. Ed. 808, and Union Railway Co. v. Illinois Cent. R. Co. (6 C. C. A.) 207 F. 745, 125 C. C. A. 283, in the former of which it appeared that the water company had no remedy save in equity and in the latter it was "because of the lack of power in the state circuit court, to provide for any method of crossing except at grade" that the remedy in equity was invoked "on the ground of irreparable injury and inadequacy of remedy at law." What has been said as to the absence of equity in the bill with respect to enjoining the proceeding because in violation of the Constitution of the state applies with equal force to the claim that the taking would be in violation of the federal Constitution, since it is not to be anticipated that the state courts will render any judgment in violation of the plaintiff's federal rights. [3] Another valid objection to the bill is that it aims to enjoin the prosecution of a suit in the state court, a proceeding forbidden by statute. Section 265, Judicial Code (Comp. St. § 1242); Dial v. Reynolds, 96 U. S. 340, 24 L. Ed. 644. As stated in Defiance Water Co. v. Defiance, 191 U. S. 184, 24 S. Ct. 63, 48 L. Ed. 140, the courts of the United States cannot be called on to intervene in a proceeding in the state court "on the ground that the state courts might so decide as to render their final action unconstitutional." The presumption is that they will do what the Constitution and laws of the state and the United States require. Shreveport v. Cole, 129 U. S. 36, 9 S. Ct. 210, 32 L. Ed. 589. Judgment affirmed. DAVIS v. BALTIMORE & O. R. CO. (Circuit Court of Appeals, Sixth Circuit. January 5, 1926.) No. 4364. Commerce 27 (8)—Employé at time of making repairs on car held not "engaged in interstate commerce." Where car had been taken from intrastate service, and moved as part of interstate train to place of repair, and after being repaired was returned for use either in interstate or intrastate commerce, plaintiff, injured during repairs, was not engaged in "interstate commerce" and within protection of federal Employers' Liability Act (Comp. St. §§ 86578665). [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; Paul Jones, Judge. Action by Jack Davis against the Baltimore & Ohio Railroad Company. Judgment on directed verdict for defendant, and plaintiff brings error. Affirmed. The plaintiff brought an action against the Baltimore & Ohio Railroad Company to recover damages for personal injury sustained by him on the 2d day of January, 1924, while in the employ of the defendant and engaged in replacing a broken coupler upon a Western Maryland gondola car on repair track No. 3 in the defendant's yards at Keyser, W. Va. It is alleged in the petition that, at the time plaintiff was injured, both the plaintiff and defendant were engaged in interstate commerce, and that plaintiff's cause of action "is governed and controlled by the federal Employers' Liability Act as passed by Congress in April, 1908, and the amendments thereto." Comp. St. §§ 8657-8665. The defendant, in its answer, specifically denied that either plaintiff or itself were engaged in interstate commerce at the time alleged in the petition. the petition. Upon the trial of the case, counsel for both parties signed and filed a stipulation as to certain material facts, and in addition thereto the plaintiff testified that, at about 3:15 o'clock in the afternoon of the day of the accident, the foreman of the defendant's repair department at Keyser, W. Va., directed him, as "gang leader," to bring two men and repair a Western Maryland car that had "died for a coupler," and also said to him it was a rush job, to get the 4 o'clock p. m. train for Cumberland; that while he was engaged in performing this service he was injured as stated in his petition, through the negligence of the defendant. Other evidence was introduced tending to prove negligence by the defendant and the extent of plaintiff's injuries. At the close of the evidence for the plaintiff the court sustained a motion to direct a verdict for the defendant on the ground that there was a failure of proof to sustain the 10 F.(2d) 141 allegation of the petition that plaintiff and defendant were engaged in interstate commerce when the injury occurred, and because of such failure of proof, and it further appearing that both plaintiff and defendant were nonresidents of the district, the court had no jurisdiction of the cause. R. B. Newcomb, of Cleveland, Ohio (Newcomb, Newcomb & Nord, of Cleveland, Ohio, on the brief), for plaintiff in error. Thomas O. Nevison, of Cleveland, Ohio (Tolles, Hogsett, Ginn & Morley, W. T. Kinder, and Thos. O. Nevison, all of Cleveland, Ohio, on the brief), for defendant in error. Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges. DONAHUE, Circuit Judge (after stating the facts as above). It appears by the stipulation of counsel that this Western Maryland car, immediately before it had been brought to Keyser, W. Va., for repairs, had been engaged in intrastate commerce between Cumberland and Ancelle, Md.; that it was loaded at Cumberland, and after it reached Ancelle it was unloaded and sent to This car was not interrupted in an interstate haul to be repaired and continue its journey, nor was it actually employed in interstate commerce when taken out of service at Ancelle and sent to the Keyser shop track for repair. For this reason we do not think the extent of the needed repairs or the length of time it was withdrawn from intrastate service, in which it was being used immediately prior to such withdrawal, helpful, much less controlling, in determining whether this car was or was not actually or constructively engaged in interstate commerce at the time plaintiff was injured. The Supreme Court, in Industrial Commission v. Davis, supra, cites with approval its former decision in Railroad Co. v. Winters, supra. While the facts in neither of these cases are identical with the facts admitted or proven in this case, nevertheless the principles therein announced, upon a state of facts much more favorable to the contention of plaintiff in error, are applicable and con- the Keyser yards for repair; that it reached curtidenied there about January 1, 1924, and was repaired on January 2d; that on January 3d it was not under orders of consignment; and that the next movement of the car was to Cumberland, Md., to be used either in interstate or intrastate commerce as the business of the defendant would require, and that it was not in consignment on arrival at Keyser from Ancelle, Md. This presents a wholly different situation from a case in which a car is permanently assigned or specially devoted to interstate commerce, and is taken out of a train for trifling repairs, with the intention or purpose of continuing it in interstate commerce as soon as the repairs are completed. Industrial Commission v. Davis, 259 U. S. 182, 42 S. Ct. 489, 66 L. Ed. 888. Whatever may have been its character or status while a part of an interstate train moving from Ancelle, Md., to Keyser, W. Va., not under consignment and taken to Keyser solely for the purpose of repairs, this movement and the contemplated return of the car, after it should be repaired, from Keyser, W. Va., to Cumberland, Md., would not impress upon it the character of a car permanently engaged in or specially devoted to interstate commerce while it remained upon the shop track at Keyser, W. Va. Minneapolis & St. Louis R. Co. v. Winters, 242 U. S. 353, 37 S. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54. 127024667 70 L Ed. 786, MERCHANTS' BANK & TRUST CO. v. C. No. 4383. 1. Bills and notes 383-Acceptance held not subject to defense of payment aчainst holder in due course. Under Negotiable Instrument Law of Tennessee, acceptance is not subject to defense of payment against holder acquiring it in due course, for value, without notice, before maturity. 2. Bills and notes 525-Evidence held to show that bank, purchasing trade acceptance, surrendered possession after maturity and reacquired it as collateral security. Evidence held to show that bank, which purchased trade acceptance in due course, surrendered possession thereof after maturity and reacquired it as collateral security for note. 3. Bills and notes 351-Bank, surrendering overdue trade acceptance and reacquiring it as collateral security, takes subject to defenses. Where bank surrendered overdue trade acceptance to its transferor, and at once reacquired it as collateral for transferor's note, it reacquired acceptance subject to all defenses against original payee. Certiorari denied 46 S. Ct. 470, 70 L. Ed.-. Tennessee (Laws 1899, c. 94), if plaintiff was the holder of the acceptance in due course for value, without notice of infirmity, and had become such before the maturity thereof, it was not subject to the defense of payment to Young & Co. It was such holder prior to December 30th, when it accepted the note of $12,000, which included, among other indebtedness, the amount of the trade acceptance. The District Judge was of opinion, after carefully considering the testimony of Maslin, the president of the plaintiff company, that in the transaction of December 30th the bank surrendered the acceptance as holder in due course and reacquired it as collateral to secure the payment of the note Before DONAHUE, MOORMAN, and that is to say, the transaction changed the KNAPPEN, Circuit Judges. MOORMAN, Circuit Judge. On February 22, 1919, the C. L. Thurman Motor Company, the sole owner of which was C. L. Thurman, purchased two Bethlehem trucks from W. Irvin Young & Co., executing in payment therefor a trade acceptance of that date for $4,157.20, due 90 days after date. Young & Co. sold the acceptance to the Merchants' Bank & Trust Company on May 14th, and the latter company caused it to be presented for payment, which was refused. It was protested and returned to Young & Co. Thereafter Young & Co. procured from Thurman a renewal of the acceptance. The renewal was taken to the Merchants' Bank & Trust Company July 1st, and accepted by it in lieu of the first acceptance. On December 30th, long after the acceptance was due, Young & Co. executed to the bank a note of $12,000 covering various items of indebtedness due the bank, including the acceptance in question, which was surrendered, but at once attached to the new note as collateral. It was stated on the face of the note that, "having deposited with said bank the collateral stated hereon as security, for payment of this or any other liability or liabilities of we, or either of us, to said bank, due or to become due, or which may be hereafter contracted, with full power and authority to said bank to sell, assign and deliver the whole or any part thereof, etc." The acceptance was listed on the back of the note as "collateral," with other notes and some stock of a motor corporation. Prior to the pledging of it as collateral Thurman paid it to Young & Co. That company failed, and this suit was brought against defendants in error to recover on the acceptance. [1-3] There is no controversy as to the facts. Under the Negotiable Instrument Act of status of the bank from that of a holder in due course to the taker and holder of an overdue paper as collateral, which was subject to any valid defense that the acceptor had against it. fers to Dies v. Bank, 129 Tenn. 89, 165 S. W. In opposition to this finding plaintiff re248, Ann. Cas. 1915A, 1090. It was there held on undisputed authority that "the intention of the parties" controlled, and it was found that the note "was in point of fact not accepted by the bank even as a renewal, but only as an additional evidence of the indebtedness." Here the weight of the evidence, we think, discloses a different purpose. Upon the execution of the note the acceptance was marked paid, and disappeared from the books of the bank, remaining in the custody of the bank, so far as its records show, because attached to the note as collateral. These facts, with the testimony of Maslin, show, in our opinion, an intention to accept the note in satisfaction and discharge of the rights that accrued on the taking of the acceptance. In Melton v. Trust Co., 190 F. 126, 111 C. C. A. 166, the note was pledged before maturity, which under established rules was a transfer for value in due course. In the instant case the pledging occurred after the acceptance was due, and after plaintiff was put on notice by nonpayment of probable defenses to it, a valid one being that it had theretofore been paid. On the evidence adduced, it is clear that when the bank accepted the note it surrendered its right as a holder of the acceptance in due course, and became a taker and holder thereof subject to such defenses as might then have been asserted against it in the hands of the original payee. Judgment affirmed. 10 F.(2d) 143 SANDERS v. JEFFERSON STANDARD LIFE INS. CO. (Circuit Court of Appeals, Fifth Circuit. December 26, 1925.) No. 4570. 1. Insurance 400-Denial of liability under double indemnity clause, because of exception thereto, held not contest of policy, within meaning of contestability clause. Under provision for double indemnity for accidental death, excepting injury inflicted by another, expiration of policy period of contestability did not prevent insurer from denying liability for double indemnity, on ground insured was intentionally shot by another. 2. Insurance 400-Incontestability clause does not prevent questioning extent of coverage. Incontestability clause does not prevent insured from disputing that insured's claim is covered by the policy. Appeal from the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge. Suit by R. M. Sanders, administrator of the estate of William Thomas Sanders, deceased, against the Jefferson Standard Life Insurance Company. From a decree of the District Court for defendant (4 F. [2d] 555), plaintiff appeals. Affirmed. J. Morgan Stevens and W. Calvin Wells, both of Jackson, Miss., and Edw. Rightor, of New Orleans, La., for appellant. Wm. H. Watkins, of Jackson, Miss. (Watkins, Watkins & Eager, of Jackson, Miss., and Brooks, Parker & Smith, of Greensboro, N. C., on the brief), for appellee. Before WALKER, BRYAN, and FOSTER, Circuit Judges. WALKER, Circuit Judge. This was a suit on a life insurance policy dated December 15, 1919, whereby the appellee, for the consideration stated, agreed to pay $20,000 to the insured on the 15th day of December, 1929, or, in the event of the insured's prior death, to his executors, administrators, or assigns. The policy contained the following provisions: "Double Indemnity. The company will pay double the face amount of this policy if the death of the insured results from bodily injury, except these provisions do not apply if the insured shall engage in military or naval service or any allied branch thereof in time of war, or in case death results from bodily injury inflicted by another person or by the insured himself, or in case of self-de struction at any time, whether during the first policy year or afterwards, or from engaging in aeronautics or submarine operations either as a passenger or otherwise." At the bottom of the first page of the policy, and below the appellee's signature, was the following: "Guaranteed Settlements.-Subject to the conditions and limitations set forth in this policy, and in the event of liability under its provisions, settlement will be made as follows: For death, ordinary causes........ $20,000.00 For death, accidental causes. $40,000.00" .... In December, 1923, while the policy was in force, and when there had been no default in the payment of premiums, the insured died as the result of a gunshot wound inflicted intentionally by another person, without any fault on the part of or warning to the insured. After the appellee had paid $20,000, admitted by it to be due under the terms of the policy, this suit was brought to enforce the claim that an additional $20,000 was due under the above set out provisions of the policy. That claim was disallowed by the decree appealed from. Sanders v. Jefferson Standard Life Ins. Co. (D. C.) 4 F. (2d) 555. [1,2] In behalf of the appellant it was contended that in the situation disclosed the provision that the policy "shall be incontestable for any cause except for nonpayment of premiums" deprived the insurer of the right to dispute its liability under the "double indemof that provision it was not to apply "in nity" provision, though by the express terms case death results from bodily injury inflicted by another person." We are of opinion. that a result of sustaining this contention would be to subject the insurer to a liability not imposed by its policy. By the policy the insurer promised to pay specified sums of money in specified contingencies. We think that full effect is given to the above-quoted provisions by holding that, after the policy had been in force. for one full year, and in the absence of any default in the payment of premiums, the insurer became incontestably liable to pay $20,000, if the insured died from what was called "ordinary causes," and became liable to pay also an additional $20,000 if the death of the insured resulted from a bodily injury not within any exception stated in the double indemnity provision. In the one case as well as the other, the liability of the insurer was conditioned upon the happening of the contingency which, by the terms of the policy, was to give rise to |