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tee is held for distribution in accordance with section 65 of the act (Comp. St. § 9649), which makes no distinction between antecedent and subsequent creditors, but provides that "dividends of an equal per centum shall be declared and paid on all allowed claims." The whole confusion as to the right of antecedent creditors arises from assuming that, because the conveyance is avoided under the state law, the fund realized must be distributed under that law, a view expressly repudiated by the Supreme Court of the United States in Miller v. New Orleans Acid & Fertilizer Co., 29 S. Ct. 176, 211 U. S. 496, 53 L. Ed. 300.

A decision which seems to us conclusive of the question presented is the case of Globe Bank v. Martin, 35 S. Ct. 377, 236 U. S. 288, 59 L. Ed. 583. In that case there was a fraudulent conveyance which under the laws of Kentucky was void as to antecedent but not as to subsequent creditors. A suit to set aside the conveyance was instituted by antecedent creditors, and under the Kentucky practice an attachment was levied upon the property which was the subject of the suit. During the pendency of the suit and within four months after its institution, the debtor was adjudged bankrupt, and the bankruptcy court entered an order directing that the attachment lien be preserved for the benefit of the estate and that the trustee intervene in the state court and prosecute an action for the recovery of the property. This was done and the property was recovered. A decree adjudging that the antecedent creditors were entitled to the entire fund was reversed by the Circuit Court of Appeals of the Sixth Circuit, and a decree was entered by that court directing a distribution of the fund among all the creditors of the estate. This was affirmed on appeal to the Supreme Court of the United States.

It is argued by counsel that a distribution among all the creditors was directed in the case of Globe Bank v. Martin, supra, be cause the trustee sought to preserve the lien obtained by creditors, under section 67f of the act, for the benefit of the estate. But we do not understand this to be the basis of that decision. The court points out that the trustee is by 70a of the Bankruptcy Act vested with title to property transferred in fraud of creditors, and that by 70e he is authorized to avoid any transfer by the bankrupt which any creditor might avoid. It next shows that the antecedent creditors had no lien on the property conveyed until the filing of the attachment and that the lien of

the attachment was void, having been filed within four months of the bankruptcy, except as it was preserved under 67f for the benefit of the estate. Miller v. New Orleans Acid & Fertilizer Co., supra, was cited as authority for the proposition that after the fraudulent conveyance was set aside under section 70 of the Bankruptcy Act, the bankruptcy court had the right to determine for itself the disposition of the fund. In our opinion the doctrine announced in Globe Bank v. Martin clearly covers the distribution of funds recovered by the trustee in proceedings under 70e of the Bankruptey Act, whether a lien obtained by creditors is preserved under 67f or not. [4] But even if the preservation of a lien under 67f were necessary to permit general creditors to share in the recovery, we think the condition has been met in this case, as a lien was obtained upon the filing of the bill in equity in the circuit court of Baltimore city and this lien was preserved by the trustee who was made a party to that suit. We do not rest our decision upon this point, however, but upon the broader ground stated.

We have examined carefully the case of American Trust Co. v. Duncan, 254 F. 780, 166 C. C. A. 226, cited by counsel, and it apparently supports the decree rendered below; but, while we have great respect for the court which rendered that decision, we cannot follow it. The doctrine therein announced is at variance with our interpretation of the Bankruptcy Act and, it seems to us, is in clear conflict with the decision of the Supreme Court of the United States in Globe Bank v. Martin, supra. Our examination of the authorities from other jurisdictions convinces us also that the decision in American Trust Co. v. Duncan is not in harmony with the current of authority; for it seems to be generally settled that the recovery by the trustee of property conveyed in fraud of creditors inures to the benefit of all creditors and not merely to the benefit of those who might have attacked the conveyance under the state law. Kehr v. Smith, 20 Wall. 31, 22 L. Ed. 313; Platt v. Mead (D. C.) 9 F. 91; McCrory v. McDonald, 80 So. 643, 119 Miss. 256, 43 Am. Bankr. Rep. 181; Riggs v. Price, 210 S. W. 420, 277 Mo. 333, 43 Am. Bankr. Rep. 413; In re Kohler (6th Ct.) 159 F. 871, 87 C. C. A. 51, 20 Am. Bankr. Rep. 89; Farmers' Co. v. Barlow (D. C.) 202 F. 1008, 30 Am. Bankr. Rep. 190; In re Gray, 62 N. Y. S. 618, 47 App. Div. 554, 3 Am. Bankr. Rep. 647.

11 F.(2d) 65

No. 2398.

1. Electricity 19(12) - Contributory negli. gence of customer's watchman, electrocuted in attempt to pull electric switch when defect in power line was apparent, held for jury.

It is interesting to note that the authors of DUNAGAN v. APPALACHIAN POWER CO. text-books on the law of bankruptcy have (Circuit Court of Appeals, Fourth Circuit. taken the view of the statute and the curJanuary 12, 1926.) rent of authority which we have expressed. Black on Bankruptcy states the rule as follows: "When the bankrupt's trustee sets aside a fraudulent conveyance, 'this will inure to the benefit of all the creditors of the bankrupt having provable claims, including those whose claims accrued subsequent to the transfer and not merely to the advantage of those who, as existing creditors, or holding circumstances, and court could not say as matjudgments would have been entitled to attack the conveyance at the time it was made.'" Black on Bankruptcy (3d Ed.) § 468.

Collier on Bankruptcy, speaking of suits. under section 70e, says: "Upon the rendition of a decree in favor of a trustee in a suit to set aside a fraudulent conveyance, the property inures not to the benefit alone of the unsecured creditors existing at the time of the transfer and who, in the absence of bankruptey would have been authorized to attack the conveyance but to all of the creditors having provable claims, including those whose claims accrued subsequent to the transfers." Collier on Bankruptcy (13th Ed.) 8 70, p. 1783.

Our conclusion, therefore, is that the District Court erred in holding that the antecedent creditors were entitled to the fund realized by the trustee to the exclusion of subsequent creditors, and that the decree should be reversed and the trustee directed to hold the fund for distribution among general creditors in accordance with the provision of the Bankruptcy Act.

[5] As to the procedure, this was a controversy arising in bankruptcy proceedings, and is reviewable under section 24a of the Bankruptcy Act (Comp. St. § 9608) by appeal. Globe Bank v. Martin, supra; Hewitt v. Berlin Machine Works, 24 S. Ct. 690, 194 U. S. 296, 48 L. Ed. 986; York Mfg. Co. v. Cassell, 26 S. Ct. 481, 201 U. S. 344, 50 L. Ed. 782. On the appeal the decree of the District Court is reversed, and the trustee in bankruptcy is held entitled to the fund for distribution among general creditors in accordance with the terms of the Bankruptcy Act. The petition to superintend and revise is dismissed. In re Jacobs (8th Ct.) 99 F. 539, 39 C. C. A. 647, 3 Am. Bankr. Rep. 671; Hewitt v. Berlin Machine Works, supra; Collier on Bankruptcy (13th Ed.) p.

827.

Case No. 2390, dismissed.
Case No. 2403, reversed.

11 F.(2d)-5

Customer's watchman, who was electrocuted in attempt to pull electric light switch when some defect in power line was apparent, held to have acted as ordinarily prudent man under

ter of law that man of ordinary prudence would not have been justified in doing, for protection of property, all that deceased did.

negli

2. Electricity 19(3)-Contributory
gence of customer's watchman electrocuted
held affirmative defense, to be shown by pre-
ponderance of evidence.

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ROSE, Circuit Judge. The parties in this court occupy the same positions they did below. The plaintiff, a citizen of West Virginia, seeks to recover from the defendant, a Virginia corporation, damages for the death of her husband and decedent, who will be herein referred to by the latter appellation.

The defendant generates, distributes, and sells electricity. Its pole lines support, not only high voltage transmission and less heavily charged, but still deadly, lighting lines, but the ordinarily innoxious telephone wires as well. They pass through or along the land of one of its customers, the Pocohontas Fuel Company, in whose employ the dece

dent was. The defendant furnished the fuel company electricity to light its stable and to operate its fan, and probably for other purposes. On a pole near the stable was a switch, by which the current could be cut off from the stable, and perhaps from the fan also. The decedent was one of the fuel company's watchmen. Among his duties was that of using the switch when it was desired to put out the stable lights. Some 21⁄2 hours before he was killed, at a point some 3 miles nearer defendant's power house, a broken insulator was noticed, causing electrical disturbance serious enough to attract the attention of persons in the neighborhood and to break 2 of the 17 wires upon its poles. About 20 or 30 minutes before the decedent received the fatal shock, the telephone line on the pole opposite his watchbox, and which, in the direction of the defendant's plant, was next that upon which the switch was, began to arc, at first intermittently and then continuously, finally producing what looked like a ball of fire. When this happened, decedent, declaring that "something had to be done," and that he had a "switch up there which he could pull, and throw the current off that line," got up and started to the switch pole.

The man who was with him in his shanty, and who so far as the record discloses was the only person at that time anywhere about, waited two or three minutes before following him. When this person got close to the location of the switch, he saw the decedent lying on the ground about 15 or 18 feet from the pole, with his arms outstretched and with one hand reaching within about 6 inches of the wire fence which surrounded it. The deceased struggled once or twice after the witness saw him on the ground, but he never spoke again. Medical examination showed that his death was due to an electric shock, and that he had apparently grasped some heavily charged substance with his right hand. A moment or so after he left his shanty, the telephone wires opposite broke, having burned in two, and the light wires at the switch box followed or preceded them. The indications were that he received the fatal. shock before he had a chance to move the switch, for, while the door of the switch box was open, the switch itself had not been pulled, and there were unbroken spider webs in its box.

At the close of the plaintiff's evidence, on motion of the defendant, the learned District Judge instructed the jury to return a verdict for the defendant, on the ground that plaintiff's intestate had, or should have had, am

ple warning that he was dealing with a most dangerous proposition, and, with such knowledge, he unnecessarily went into a place of danger.

[1] The defective condition of the defendant's appliances had created such a situation as threatened immediate peril to the property which the decedent was employed to watch. Any man in his place might well feel that he was bound to do all that he could for its protection. If he judged wrongly, it was because he was placed in a situation brought about by the defendant, and which seemed to call for prompt action. If the fuel company had been an individual, personally present, it would have been entitled to do what in reason it could to protect its property. In the decedent's relation to the company, he stood in its shoes. Ivy v. Wilson, Cheves (S. C.) 74; Liming v. Illinois Central R. Co., 47 N. W. 66, 81 Iowa, 246, 253; Thorn v. James, 14 Manitoba, 373; 1 Shearman & Redfield on Negligence, § 85d. We cannot hold as a matter of law that a man of ordinary prudence would not have been justified in doing for the protection of his property all that the decedent did.

It is true that the record as it stands does not show that what was wrong on defendant's line threatened any immediate danger to human life, to save which one may take chances which he might not be justified in doing merely to protect property. Nevertheless, as the authorities already cited teach, he who acts to guard property, whether of his own, of his employer, or of a third person, threatened by the consequences of the negligence of some one else, may properly do what he could otherwise attempt only at his own risk. We do not see anything to show that decedent acted as an ordinarily prudent man, under the circumstances in which he found himself, would not have done, and therefore such cases as Pegram v. Seaboard Air Line, 51 S. E. 975, 139 N. C. 303, 4 Ann. Cas. 214, are not in point.

[2] The situation, as it manifested itself to the decedent when he left his watchbox, was not such as would necessarily warn a man of reasonable prudence, having no more acquaintance with electrical matters than has the average person, that there was danger in going to the switch, one of the purposes of which he might well have thought was to prevent or minimize the damage likely to result from such disturbances as were then in evidence. He knew that there was trouble on the line, but there was nothing intrinsically unreasonable in his supposing that the peril of using the switch was small, and still less

11 F.(2d) 67

in his thinking that he was taking little risk Appeal from the District Court of the in coming within 15 or 18 feet of it. There United States for the District of Maryland, is nothing in the facts of this case to make it at Baltimore, in Admiralty; Morris A. Soan exception to the general rule that contrib- per, Judge. utory negligence is an affirmative defense, of the existence of which, whenever there is room for reasonable minds to differ, the defendant must satisfy the jury by a fair preponderance of the evidence.

In the court below, so far as the record discloses, every one assumed that, when the plaintiff closed her evidence, she had made a prima facie showing of negligence upon the part of the defendant. At all events, we are satisfied that, as the record stood, she had done so. At the new trial, defendant may offer testimony which will put another aspect upon that part of the case. If so, the plaintiff will not be entitled to recover, unless the jury shall find that the negligence of the defendant has been established by a preponderance of all the evidence then before it. Sweeney v. Erving, 33 S. Ct. 416, 228 U. S. 233, 240, 57 L. Ed. 815, Ann. Cas. 1914D,

905.

From what has been said, it necessarily follows that the judgment below must be reversed, and a new trial awarded. Reversed.

PENDLETON BROS., Inc., v. MORGAN.

(Circuit Court of Appeals, Fourth Circuit. January 12, 1926.)

No. 2400.

1. Collision 29-Vessel on port tack, meeting vessel on starboard tack closely hauled, held obligated to keep out of way and responsible for collision (Act Aug. 19, 1890, § 1, art. 17 [Comp. St. § 7856]).

Vessel on port tack, whether closely hauled or free sailing, held obligated, under Act Aug. 19, 1890, § 1, art. 17 (Comp. St. § 7856), to keep out of way of closely hauled vessel on starboard tack, and, having also failed to timely observe lights, responsible for collision.

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Libel by Pendleton Bros., Incorporated, against T. B. Morgan, master of the barkentine City of Beaumont. From a decree dismissing libel, libelant appeals. Affirmed.

Herbert C. Fooks, of Baltimore, Md. (Fitzgerald, Stapleton & Mahon and Avery F. Cushman, all of New York City, on the brief), for appellant.

John H. Skeen, of Baltimore, Md. (Emory, Becuwkes & Skeen, of Baltimore, Md., on the brief), for appellee.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

WADDILL, Circuit Judge. The litigation in this case arose out of a collision between the schooner Brina P. Pendleton, owned by the appellant, and the barkentine City of Beaumont, of which the appellee, T. B. Morgan, was master. For convenience, the two vessels will be referred to by the names

the Pendleton and the Beaumont.

The collision occurred on the morning of February 11, 1924, about 12:15 a. m., at a point approximately 25 miles southeast of the lightship off Charleston, S. C. The Pendleton, a four-masted schooner, was on a voyage from Jacksonville, Fla., to Portland, Me., laden with lumber. The Beaumont was proceeding in the opposite direction, from New York to Jacksonville, Fla., light. Both vessels were under sail. The night was clear and starry, the sea smooth, and the wind moderate from the north. Each vessel sought to place the fault of collision solely upon the other. The Pendleton's charges against the Beaumont are: (a) She had no lookout properly stationed; (b) she did not observe the schooner in time to avoid the collision; (c) she, running free, did not get out of the way of the schooner, which was close hauled; (d) she was not properly manned and equipped. The Beaumont charges precisely the same faults on the part of the Pendleton. The Pendleton placed its damage in the collision at $7,000, and the Beaumont its damage at $1,000.

The case was tried by the lower court mainly upon the depositions, though two of the Beaumont's witnesses, its master and mate, were examined orally before the trial judge. The district court decided that the collision was brought about solely by the fault of the Pendleton, adjudging the Beaumont to be free from blame, and accordingly

dismissed the Pendleton's libel, and decreed in favor of the Beaumont for the damages sustained by it. From this decision the appeal in this case was taken by the Pendleton. The assignments of error present mainly the fact that the court erred in making the findings and rulings mentioned, and in concluding that there was no negligence on the part of the Beaumont, and that the Pendleton's negligence brought about or contributed to the collision.

[1] The facts in this case are less in dispute than is usual in collisions occurring at night on the high seas. There seems to be no substantial disagreement as to the courses of the two vessels; the Beaumont being on a course approximately southwest by west, and the Pendleton on a course approximately northeast by east. The Beaumont was on the starboard tack and the Pendleton on the port tack. The chief difference respecting their navigation consists in which was the free, and which the incumbered, vessel. The Beaumont says that it was proceeding close hauled on the starboard tack, and that the Pendleton was sailing free, whereas the Pendleton claims. that it was close hauled on the port tack, and that the Beaumont was running free. The decision of the district court, while holding the Pendleton solely at fault for the collision because of its failure to keep a proper lookout, to maintain proper lights of its own, and to seasonably observe the Beaumont's lights, nevertheless held that it was difficult to determine from the testimony whether at the time of the collision the Pendleton was sailing free or close hauled, but that the same was immaterial, since the Beaumont was proceeding close hauled on the starboard tack, and that under the rules of navigation, particularly rule 17 of the international rules, it was the duty of the Pendleton, conceding it to be close hauled on the port tack, to keep out of the way of the Beaumont, close hauled on the starboard tack. This decision of the district judge is clearly right, and supported by reason and authority. The article of the international rules referred to specifically so provides. Act August 19, 1890, c. 802; section 1, 26 Stat. 326 (Comp. St. § 7856). Hughes' Admiralty (2d Ed.) p. 440. Also the same work by the learned author, p. 271, where a practical and instructive illustration of the rule is given, with cases cited.

The district court found that the Beaumont was navigated with care, efficiently

manned and officered, with lights properly set and burning, and declined to accept the testimony of those navigating the Pendleton that its lights were properly set and burning and their vessel free from fault. The evidence not only sustains the conclusion of the court as to the navigation of the respective vessels, but the failure of those navigating the Pendleton to observe the red lights of the Beaumont, which were seen for three-quarters of a mile, and admitted to have been sufficient, if seasonably observed, to have been seen four or five miles away, satisfactorily accounts for the collision. The observation of the lights three-quarters of a mile away afforded ample time to avoid the collision, and those navigating the Pendleton were charged with a duty to see a light admittedly burning, which a vigilant lookout would have observed. The failure to discover lights until too late to avoid a collision is tantamount to a failure to have a lookout at all. The Sea Gull, 90 U. S. (23 Wall.) 165, 175–177, 23 L. Ed. 90; The Belgenland, 5 S. Ct. 860, 114 U. S. 355, 371, 372, 29 L. Ed. 152; The Richmond (D. C.) 114 F. 208, 213, 214; The Manaway (D. C.) 257 F. 476, 477; The Stimson (D. C.) 257 F. 762, 765. [2] The testimony of Holder, the boatswain on the Pendleton, and Clayton, the lookout, goes far to negative the contentions of the Pendleton, especially as to its failure to observe the lights of the Beaumont. [3] Counsel for appellant insist that, as this is a case in which the findings of the district court were based upon testimony, most of which was taken by depositions, the conclusion of the district court should not be considered as conclusive on this court. They cite authorities to sustain this view. Ariadne, 13 Wall. 475, 20 L. Ed. 542; The Albany, 81 F. 966, 27 C. C. A. 28; The Kalfarli (C. C. A.) 277 F. 391, 398; Hughes' Admiralty (2d Ed.) S. 203. Nothing is betwill not fail to discharge its duty to pass ter settled than that the appellate tribunal upon the merits of a controversy by blindly following what has been decided by the trial court; but, where the same involves a question of fact, and especially where the lower tribunal has had the chance to see and hear the witnesses, much weight should be given to the conclusions reached by it. This doctrine, however, has little significance in a case in which the appellate court finds itself, as it does here, to be in full accord with the trial court.

Affirmed.

The

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