62 Sup CT. 356. 78646 10 FEDERAL REPORTER, 2d SERIES letters were identified by a receiving stamp, and Lackey, an employee in the general office of the Woodmen at Omaha, testified that they came through the mails, although he seemed to base the statement on the fact that the head office received papers from several thousand subordinate lodges, and practically all of such papers came by mail. When interrogated by the court, however, he said, speaking particularly as to whether he knew the papers in question were so received, "I do by reason of this stamp (referring to a private stamp put on the file by witness)." This testimony, with that showing who prepared the papers, with whom they were left for forwarding, who received the checks in payment of the disability benefits, cashed them, etc., and even defendant's own testimony, leaves no room for doubt as to the mailing of the papers by defendant and his receipt of the checks, as respectively alleged in the four counts on which he was convicted. [4] Complaint is made of the admission of some of the evidence. We have given consideration to the various questions discussed under this assignment, and conclude that there was no prejudicial error committed. The testimony as to transactions between defendants and the order, whereby they collected for themselves permanent disability benefits, is not subject, we think, to the objection of incompetency, because it tended to prove an offense committed more than three years before the finding of any indictment. The scheme with which defendants were charged was unique; it required ingenuity. A similar scheme, devised and successfully executed by defendants immediately before this one was conceived, would seem to be admissible in evidence, as tending to show they devised this scheme and what its purpose was. But, if we assume that the testimony was incompetent, the fact remains that the court finally excluded it, and directed the jury not to consider it, in which circumstances it is not believed to have been prejudicial, in view of the overwhelming proof of the purposes of the scheme otherwise adduced. [5] The final assignment of excessive punishment requires no discussion. Defendant was convicted on four counts. The prison sentences run concurrently; the fines are cumulative. The result is that he received a sentence of three years in the penitentiary and was adjudged to pay fines amounting to $4,000. This is not excessive punishment. Judgment affirmed. DOWLING v. COLLINS. (Circuit Court of Appeals, Sixth Circuit. January 6, 1926.) No. 4428. 1. Criminal law 1023(3)-Order denying return of goods is no less final because, as relates to suppression of evidence, it may be interlocutory. Motion to suppress the use in a criminal case of evidence unlawfully obtained is distinct from motion for return of goods, and order denying motion for both, as relates to return of goods, is no less final because, as relates to suppression of evidence, it may be interlocutory. 2. Searches and seizures 5-Remedies of defendants in criminal action, complaining of unlawful seizure of goods to be used as evidence, stated. Defendants in criminal case, complaining of unlawful seizure of goods to be used as evidence, have a choice of remedies between an original suit for return of the goods and quashing of warrant or preliminary motion therefor in criminal case. Defendants in criminal case held not entitled in original suit therefor to a return of goods alleged to have been unlawfully seized successful attempts to obtain same relief by and held as evidence, in view of prior unpreliminary motions in the criminal case, orders denying which though final, were not brought up for review. 5. Searches and seizures 7-Search of business building and basement thereof held reasonable, irrespective of validity of search warrant. Search of business building and basement thereof, wherein liquor was found, held reasonable, irrespective of validity of search warrant, in view of violation of law carried on in presence and hearing of officers. In Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Suit by Mary M. Dowling and others, defendants in a criminal prosecution for violation of the National Prohibition Act, against Sam Collins, Prohibition Director, for return of property alleged to have been illegally seized, the quashing of certain search warrants, and the suppression of physical evidence. Judgment for defendant, *Certiorari denied 46 S. Ct. 356, 70 L. Ed. --. 10 F.(2d) 62 and plaintiff Mary M. Dowling brings error. Affirmed. W. T. Fowler, of Frankfort, Ky. (Wallace Muir, of Lexington, Ky., and O'Rear, Fowler & Wallace, of Frankfort, Ky., on the brief), for plaintiff in error. Sawyer A. Smith, U. S. Atty., of Covington, Ky.) John E. Shepard and Rodney G. Bryson, Asst. U. S. Attys., both of Covington, Ky., on the brief), for defendant in error. Before DONAHUE, MACK, and MOORMAN, Circuit Judges. MACK, Circuit Judge. By original suit, the defendants in a pending criminal proceeding charged in several counts with conspiracies to violate the National Prohibition Act (U. S. Comp. St. Ann. Supp. 1923, § 101384 et seq.) as to possession, sale, and transportation respectively of intoxicating beverages, seek the return of property alleged to have been illegally seized by the officers, the quashing of certain search warrants, and the suppression of the physical evidence. After full hearing, at which, in addition to other testimony, all of the evidence taken and proceedings had in the criminal case were introduced, the petition was dismissed on the several grounds of the legality of the search warrants, the reasonableness of the search and seizure, irrespective of any warrant, the election by petitioners of a similar remedy in the criminal case, and the finality and consequent binding effect of the unappealed orders made therein, denying similar relief. It is unnecessary for the purposes of this decision to recite the facts at length. It suffices that on complaints that defendants customarily sold liquor in and from a building used for many years both as a residence and as an office for the transaction of all the business appertaining to two distillery warehouses, in which large quantities of liquor were stored, the prohibition officers accompanied two notorious bootleggers to the place, examined the auto in which they came, and found no liquor therein, saw them enter the house and return, saw dealings with other people, then heard a noise such as would be made by putting 2 sacks, each having a dozen quart bottles of whisky, into one of the empty autos, searched and found the whisky in the autos, were told then and there of its purchase, entered the house, and with search warrants, the validity of which we do not determine, searched the basement under the office and seized 478 sacks, each with 12 quarts, exactly like the 2 sacks in the auto. Petitioner lived with her grown children in the house; she was the widow of the distillery warehouse owner; as owner, she conducted the extensive business of dealing in warehouse receipts; the liquor in the basement had been there since before prohibition days; it was asserted to be for the use of the family and guests, whom she entertained on a large scale. The certificate of evidence in this case recites that upon the calling of the criminal case the defendants filed a written motion to quash the search warrant "and asked for the suppression of the evidence obtained thereunder and for the return of the goods seized." The written motion, however, which was introduced in evidence as part of the record in the criminal case, is only "to quash the evidence relating to the search and seizure" and to direct a verdict of not guilty. Nowhere therein is any request or demand for a return of the goods. Subsequently, and before the impaneling of a second jury, defendants, over the government's objection, which the court overruled, filed another written motion "to quash the search warrants issued herein and to order the liquors seized thereunder returned to Mary M. Dowling, the legal and Therein they specifically rightful owner." prayed, inter alia, "that said liquors described in the inventory of the federal prohibition agent filed with his return be ordered restored to Mary M. Dowling, the legal and rightful owner thereof." This motion was overruled after argument thereon. No evidence appears to have been heard on this second motion. We do not consider whether or not the statement in the certificate of evidence before us must be taken to mean that the written motion in the criminal case before the first trial was supplemented by an oral motion for the return of the goods seized; clearly the written motion passed on before the second trial specifically prayed for this relief. Further, it is immaterial whether or not the court erred in considering the order denying the original motion as res adjudicata on this broader motion, for clearly it was then and there duly adjudged, not merely that the search warrants would not be suppressed and that the government would not be denied the right to introduce in the criminal trial the physical evidence thereby obtained, but also and specifically that none of the defendants in that proceeding were entitled to the return of the property. [1] The preliminary motion to suppress the use thereafter in that pending criminal case of certain evidence charged to have been illegally obtained is distinct and separate from the motion for the return of the goods charged to have been illegally seized; by joining them together the order denying the return of the goods is no less final, because the order denying the suppression of their use as evidence may be interlocutory. [2] The parties, moreover, had a choice of remedies between the present proceedings and the motion in the criminal case for a return of the goods. They chose the latter; they submitted the issues thereon to the trial judge; on the merits they were denied the relief sought in the first instance, and were deemed barred thereby in the second attempt. That second action was final; and, if the first motion can be deemed by agreement of the parties to have included the return of the property, the order thereon was likewise final. [3, 4] The reasoning of the opinion in Perlman v. U. S., 247 U. S. 7, 38 S. Ct. 417, 62 L. Ed. 950, as well as in Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159, fully supports the conclusion that the orders on the preliminary motions and petitions in the criminal case were final and as such reviewable in this court; though entitled in that criminal case, they were no essential part of the trial therein; as preliminary matters they were as independent therefrom as were the petitions in the Perlman and Burdeau Cases. [5] We may add, however, that we concur fully in the findings of the trial judge that, irrespective of the validity of the search warrants, the search and seizure under the circumstances was not unreasonable. It was not the private dwelling, but the business building, that was searched, and it was in the basement of that business building that the liquor was found. In this respect it was unlike Agnello v. U. S., 46 S. Ct. 4, 70 L. Ed., decided October 12, 1925. Affirmed. SCHOONMAKER-CONNERS CO., Inc., v. 1. Shipping 62-Captain of chartered scow, remaining on board, represented owners. Captain of chartered scow, remaining on board, though nothing was said about including him, represented the owners, as to attending to the lines, etc. 2. Shipping 54-Charterer of scow held liable for damage, unless, as pleaded, caused by captain's negligence. Charterer of scow, agreeing to return it in same condition, less ordinary wear and tear, was liable for injury to it from sinking at wharf, unless, as pleaded, due to negligence of owners' captain. 3. Shipping 58(2)-Charterer of scow held to have sustained burden of proving sinking at wharf was due to negligence of owners' captain. Charterer of scow, sued for injury to it by resting on rock at wharf at low tide, held to have sustained its burden of proving accident was due to negligent failure of owners' captain to attend to the lines. Appeal from the District Court of the United States for the Southern District of New York. Libel by the Schoonmaker-Conners Company, Inc., against the Rosoff Engineering Company, Inc.; the Walsh Engineering Company, Inc., being impleaded. Libel and impleading petition dismissed, and libelant and respondent Rosoff Company appeal. firmed. Af The opinion of Ward, Circuit Judge, in the District Court, is as follows: [1] "September 21, 1921, John D. Schoonmaker and Arthur Conners, owners of the scow W. L. Howland, substituted for the Schoonmaker-Conners Company, as libelants, chartered her to the Rosoff Engineering Company for $8 a day, to be returned in the same condition as when received, less ordinary wear and tear. Nothing was said about including the captain, but he did remain on board and represented the owners, as to attending to the lines, etc. Dailey v. Carroll, 248 F. 466, 160 C. C. A. 476. "September 23, 1921, at 9 a. m., the scow berthed, with her port side alongside the river end of Dolan's Wharf, at Coxsackie, N. Y., on the west bank of the Hudson river, secured, as usual, by two spring lines fore and aft, and by a breast line at either end to posts on the wharf, and was found sunk on the early morning of September 24. This libel was filed to cover the expense of raising and repairing the scow and for loss of her services in the meantime. "The Rosoff Company in its answer admits the charter as stated in the libel, and also the damage to the scow, but alleges that the charter included the captain, whose failure to properly guard the scow and attend to her lines caused the sinking. It also impleaded f SCHOONMAKER-CONNERS CO. v. ROSOFF ENGINEERING CO. the Walsh Company under the fifty-sixth "The Walsh Company, which had taken over from Dolan the right to discharge cargoes of sand consigned to it, filed no answer to the libel, but answered the petition to the effect that the scow sank as the result of the negligence of the petitioner, which knew or ought to have known that the berth was dangerous, and also of the negligence of the libelant's captain and of Michael Dolan, the owner of the wharf. Dolan has not been impleaded. "Dolan, who would naturally speak as well of the wharf as possible, admitted that he had not used it for 10 years before the Walsh Company took it over; that it was 400 feet wide at the river end, and he had been using it dug out about 200 feet; and that, when he loaded sand scows, he always loaded the stern first, and then the bow, so that the scow should not 'shove onto' the part where he had not dug out. "The scow in question was the first boat that the Walsh Company had berthed at the wharf, and its president admitted that he had made no examination of the bottom then. The circumstance that boats consigned to the Walsh Company, with cargoes as large or larger, subsequently berthed there safely, is entirely consistent with proper precautions having been taken as to the place of berthing and attention to the breast lines. "The libelant John D. Schoonmaker, with one Spinnewetter, found the scow that morning with her bow some 3 feet out of water and her stern awash. They took soundings, and found that the scow was resting on a rock on the port side about 20 feet from the bow, and when she was repaired one whole and two half planks had to be replaced at this point. As the scow had lain safely for one low tide on the afternoon of the 23d, it is significant that she rested on this rock at the next low tide on the early morning of the 24th. The evidence is that the captain was 10 F. (2d)-5 65 notified on the 23d that he must slack out his breast lines at high water, so as to let the scow swing out as the tide fell, and the impleaded respondent insists that it was his failure to do so that caused the accident. "It is also suggested that there could have been no break in the bottom, because the wreckers could not have raised the scow, if there was one. But holes in a sunken boat are always temporarily repaired before any attempt is made to raise her. It would be impossible to pump her out without doing so. [2, 3] "As the Rosoff Company had agreed to return the scow in as good order and condition as when received, less ordinary wear and tear, it will be responsible to the libelants for the damage, unless it was due to the negligence of their captain. Jova Brick Works v. City of New York (C. C. A.) 277 F. 180. The burden of proving that the accident was due to the negligence of the captain is on the charterer, and I think it has sustained this burden. I do not believe that the bow of the scow, loaded with nearly 700 tons of sand, could have been held up by her forward breast line, while the stern sank with the tide. Dolan testified that the structure was a crib that is, the frame is first set up, and then filled with earth and stone-and that it was no wider at the bottom than at the top. I am satisfied that the boat did rest on the rock in question because of the captain's failure to attend to the lines. "The libel against the Rosoff Company is dismissed, with costs, and the petition impleading the Walsh Company is dismissed, with costs against the Rosoff Company." Macklin, Brown & Van Wyck, of New York City (Horace L. Cheyney, of New York City, of counsel), for Schoonmaker-Conners Co. Lampke & Stein, of New York City (Chauncey E. Treadwell, of New York City, of counsel), for Rosoff Engineering Co. Leslie & Alden, of New York City, for Walsh Engineering & Contracting Co. Before HOUGH, MANTON, and HAND, Circuit Judges. PER CURIAM. Decree affirmed, on the opinion of Ward, Circuit Judge, in the court below. BRISTOL GAS & ELECTRIC CO. v. DECKARD. (Circuit Court of Appeals, Sixth Circuit. January 11, 1926.) No. 4434. held not erroneous as imposing on defendant duty of inspection. 7. Electricity 19(13)-Instruction on question whether consumer's employé violated superior's order held not erroneous. In action against electric company for death 1. Electricity 17-Company not under duty of consumer's employé, through use of defec to inspect consumer's apparatus. Company, furnishing electricity, and which has supplied and installed apparatus and wiring for consumer, is not, as a general rule, charged with duty of maintaining and inspecting apparatus and wiring, nor responsible to consumer or its employés for injuries, in absence of evidence of excessive voltage or other negligence in connection with furnishing current. 2. Electricity 17-Company, knowing defects in consumer's apparatus, liable for injuries to his employé. Company, furnishing electricity with knowledge of defective condition of consumer's apparatus and wiring, which it has installed and been called upon to repair, is liable for death of consumer's employé caused thereby. tive apparatus, whether deceased in attempting to use apparatus had violated his superior's instructions held question of fact, and instruction that, if he believed storm was over when he went into power room, he would not be violating his superior's order not erroneous. 9. Electricity 19(13)-Instruction on electric company's liability for death of consumer's employé held not misleading. In action against electric company for death of consumer's employé, through use of apparatus known to defendant to be defective, refusal of instruction affecting defendant's liability, if it furnished only current contracted for, and giving of instruction that question was merely whether defendant sent electricity conshould have anticipated trouble, held not mistracted for in under circumstances such that it leading or grounds for reversal, particularly in view of want of exception. In Error to the District Court of the United States for Eastern District of Tennessee; Xenophon Hicks, Judge. Action by James E. Deckard, administrator, etc., against the Bristol Gas & Electric Company. Judgment for plaintiff, and defendant brings error. Affirmed. Fred H. Parvin, of Greeneville, Tenn.. and C. J. St. John, of Bristol, Tenn. (Caldwell & Caldwell and St. John & Gore, all of Bristol, Tenn., and Susong, Susong & Parvin, of Greeneville, Tenn., on the brief), for plaintiff in error. Robert Burrow, of Bristol, Tenn. (J. D. Baumgardner and Burrow & Burrow, all of Bristol, Tenn., on the brief), for defendant in error. Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges. KNAPPEN, Circuit Judge. Defendant, in error (plaintiff below) recovered judgment against plaintiff in error (hereinafter called defendant) for alleged negligent injuries causing the death of plaintiff's decedent. This writ is to review that judgment. |