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tive pulley. In the absence of a shifter, and of a clutch, which is also a well known means of releasing the power from the pump, Hendrix and the other engineers employed there were required to and did throw the belt from the line shaft pulley by using a stick or piece of pipe, when it became necessary to stop the pump. When a clutch is used the belt becomes still; it continues in motion but transmits no power when shifted to an idle pulley. On this occasion Hendrix was notified that the tank was overflowing, and for the purpose of stopping the pump he threw the belt off by the means stated. The pulleys were of considerable circumference, and when that was done the belt sagged down on the shafts, and it was necessary for him to lift it up and hang it on a wire provided for that purpose, as had been the practice. In hanging it up he was caught and entangled by the belt in some unexplained way, carried on to the revolving shaft, to which his body was bound and he received fatal injuries resulting almost instantly in his death. A State statute provides:

"The owner or person in charge of a factory or any institution where machinery is used shall provide belt-shifters or other mechanical contrivances for the purpose of throwing belts on or off pulleys, whenever practicable."

[1,2] This statute is a part of what is known as the Factory Act (Comp. St. 1921, §§ 7226-7254), and one of the assignments of error is that this statute was not intended to apply to a pumping station, such as this. The Act has not been construed in this respect by the State Supreme court. It has been carefully read and considered. Its obvious purpose is the protection of employés whose duties require them to be engaged in the operation of such machinery, and the necessity for the safety appliances which it exacts is as great under the facts disclosed in this case as it would be on like machinery used in a factory or machine shop. The language used is broad enough to include the defendant's plant. It is a remedial statute and should not have a narrow construction. We are not convinced that the trial court erred in applying its requirements to this machinery. The active and idle pulleys on the line shaft called for a belt-shifter. The testimony in the case discloses that the failure of the defendant to supply either a clutch or a belt-shifter on the engines of its pumping plant was contrary to the present-day practice, and we think the court properly submitted to the

jury the inquiry as to whether that failure constituted negligence, even if there had been no statute requiring those safety appliances.

[3] There was testimony that young 'Hendrix was industrious, saving of his earnings, turned much of them over to his mother and paid for family supplies out of them for her benefit, and had frequently stated that he was caring for his mother and would continue to do so. Error is assigned to the admission of this testimony, partly on the ground that there were no allegations in the complaint apprising the defendant that such testimony would be offered, and partly on the ground that some of it was incompetent in any event. We think the assignments are without merit.

[4] The remaining assignment relied on is that the complaint did not state sufficient facts to constitute a cause of action. We think this proposition also wholly without merit. No other errors are assigned or relied upon.

The judgment is affirmed.

MIDLAND OIL CO. v. MOORE et al. (Circuit Court of Appeals, Eighth Circuit. October 18, 1924.)

No. 6575.

1. Limitation of actions 130(11) - When tort actions saved from bar by Oklahoma statute stated.

Comp. St. Okl. 1921, § 190, requires that plaintiff in first action shall be plaintiff in second action, and that cause of action in both be same, in order that one tort action brought within two years shall save second action brought in one year from first action from bar of two-year statute.

2. Partnership 199-Action for injuries to cattle must be brought in name of all part

ners.

Cause of action for injuries to partnership

cattle and right to bring action on it was joint right of partners, and action to recover damages could not be properly brought without all partners joining as plaintiffs, whether brought before or after dissolution of firm.

3. Limitation of actions 130(11)-Action by partners for injury to partnership cattle held barred under Oklahoma statutes.

Action by partners for injuries to partnership cattle, not brought within two years of injury, was barred, though within two-year period liquidating partner had brought action in his own name, which failed within one year preceding bringing of action, by partners, notwithstanding Comp. St. Okl. 1921, § 190.

In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.

Action at law by V. P. Moore and Benjamin Ball, copartners doing business under

2 F.(2d) 34

firm name and style of Moore & Ball, against the Midland Oil Company. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.

S. N. Hawkes, of Bartlesville, Okl. (H. O. Caster, Hayes McCoy, and J. J. Hedrick, all of Bartlesville, Okl., and A. C. Hough, of Oklahoma City, Okl., on the brief), for plaintiff in error.

Frank T. McCoy, of Pawhuska, Okl. (E. E. Grinstead, E. F. Scott, and A. M. Widdows, all of Pawhuska, Okl., and J. R. Spielman, of Oklahoma City, Okl., on the brief), for defendants in error.

Before SANBORN and LEWIS, Circuit Judges, and FARIS, District Judge.

LEWIS, Circuit Judge. This action was brought on December 6, 1921, in the State court, in the names of V. P. Moore and Benjamin Ball as partners, against plaintiff in error, defendant below, to recover damages. Then it was removed to the court below. The complaint alleges that the plaintiffs, as copartners, were the owners of 235 head of cattle which they kept in a pasture, that on and after December 15, 1918, and up to April 25, 1919, defendant, in carrying on its mining operations nearby negligently permitted oil, salt water and other refuse to escape and flow into the water supply for said cattle whereby the water was poisoned, that between December 15, 1918, and April 25, 1919, plaintiffs' cattle drank the polluted water and were seriously injured, to plaintiffs' damage. Injury to the cattle, by itself, did not give rise to a cause of action. It was the tortious act resulting in damages to the owners of the cattle that gave them a right to sue and recover those damages. No one else had that right.

Seeking to avoid the bar of the Statute of Limitations, which provides that such an action as this can only be brought within two years after the cause of action shall have accrued, the complaint further alleges that on or about April 25, 1919, plaintiffs attempted to dissolve their copartnership by dividing their property, and in such attempted dissolution the plaintiff Benjamin Ball became the owner of the 235 head of cattle in question, with the right to prosecute the present action against the defendant as liquidating partner of said copartnership, that thereafter, on July 21, 1919, Benjamin Ball commenced his certain action in the district court of Osage County, Okl., seeking to recover from the defendant herein on the same cause of action set forth in the peti

tion herein, that thereafter, on the 6th day of July, 1921, said district court, on motion of defendant, required plaintiff Ball to separate his causes of action, and thereafter, in obedience to the ruling and judgment of said district court, the instant action was filed in the district court of Osage County, Okl., on December 6, 1921. The purpose of the pleader was to bring the case within Section 190, Comp. Stat. Okl. 1921, which reads:

"If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure."

Over objections of defendant, made in various ways during the trial, the court held that under this section and the facts pleaded the bar did not apply. This ruling is assigned as error.

[1] The present action was not brought within two years after the cause of action stated in the complaint accrued, and the inquiry is whether it was saved from the bar by Section 190 on the facts stated and proved. It is the intention of the section that the parties in the two actions shall be the same. It expressly requires that the plaintiff in the first action shall be the plaintiff in the second; and the cause of action in both should, we think, be the same. 19 Amer. & Eng. Encyc. Law (2d Ed.) 265; Bynum v. Memphis C. & R. Co., 100 Ala. 311, 13 So. 910; Gray v. Trapnall, 23 Ark. 510; Doyle v. Wade, 23 Fla. 90, 1 So. 516, 11 Am. St. Rep. 334; Smith v. Bourbon County, 42 Kan. 264, 21 P. 1109; Hughes v. Brown, 88 Tenn. 584, 13 S. W. 286, 8 L. R. A. 480; Sidener v. Galbraith, 63 Ind. 89; Moss v. Keesler, 60 Ga. 44; Ross v. Sims, 27 Miss. 359; Meddis v. Wilson, 175 Mo. 126, 74 S. W. 984; Tiffin v. Leabo, 52 Mo. 49; Crow v. State, 23 Ark. 684; H. B. Claflin v. Banking Co. (C. C.) 113 F. 958; Brown v. Erie R. Co., 176 F. 544–547, 100 C. C. A. 132; Whalen v. Gordon, 95 F. 305, 37 C. C. A. 70. In the first action brought against defendant on July 21, 1919, in the name of Ball only, he alleged in his complaint that he and Moore owned the cattle until about June 16, 1919, when Moore sold his interest in the cattle to Ball and assigned to Ball his interest in all claims for damages suffered by Moore and Ball on account of injuries to the cattle because of negligence on the part of the Midland Oil Com

pany. Ball charged in that complaint that the defendant Midland Oil Company, on or about and subsequent to January 15, 1919, polluted the water in carrying on its mining operations, that the cattle drank therefrom and were poisoned and injured to plaintiff's damage. The damage resulting from those injuries was stated and Ball prayed for judgment for the full amount. Clearly, that action was brought solely in the interest of Ball. He amended his complaint several times. The alleged date of dissolution of the partnership was changed from June 16 to April 25, 1919. The record of the proceedings in that case in the State court leads to the conclusion that the court there was of the opinion that Ball's complaint stated two causes of action, one for damages that had accrued while the cattle were held in partnership and another after they became the sole property of Ball, and it entered an order that Ball file an amended complaint stating "his single cause of action, or such separate causes of action as he may have." He then filed his fourth amended complaint, on which the case went to trial. In the fourth amendment he alleged that defendant polluted the water from April 25 to September 1, 1919, that he was the owner of the cattle on and after April 25, 1919, and he asked judgment for damages that had accrued after April 25.

The

[2, 3] At no time was Moore made a party to that cause. That action was at all times prosecuted in the name of and for the individual use and benefit of Ball. present action was brought in the name of V. P. Moore and Benjamin Ball as partners, and they confined their claim to the damages which accrued prior to April 25, 1919. The judgment which they have recovered is in favor of V. P. Moore and Benjamin Ball as partners. The contention is that because Ball, in the first action, sought to recover in his original complaint the damages that accrued to the partnership, which, however, he eliminated in his fourth amendment, he thereby saved from the bar the cause of action in favor of the partners. Ball never had a cause of action to recover the damages suffered by the partnership. That cause of action, and the right to bring an action on it, was a joint right of the partners, and an action to recover those damages could not be properly brought without all of the partners joining as plaintiffs, whether brought before or after dissolution of the firm. 15 Encyc. Pl. & Pr. 864, 878. Ball's complaint in the first action never stated a cause of action in behalf of the plaintiffs in

this action. Moore and Ball as partners had a cause of action against defendant for damages which they had suffered on account of defendant's negligence while the cattle belonged to the partnership. No one else had that cause of action or a right to bring an action thereon; and they never brought such an action until they brought this one, which was long after the statutory period of limitation had run.

The facts pleaded and proved wholly failed, in our judgment, to bring the plaintiff's case within the terms of Section 190, this action was barred when it was brought, and the court erred in holding that it was not. Other errors assigned need not be considered. Reversed and remanded.

FRAZIER et al. v. ANDERSON, Warden, etc. (Circuit Court of Appeals, Eighth Circuit. October 18, 1924.)

No. 5873.

1. War 32-General court-martial held regularly called and properly constituted.

General court-martial, called pursuant to eighth article of war (Comp. St. § 2308a) and composed of officers competent to sit, held regularly called and properly constituted.

2.

Evidence 11-Courts take judicial knowledge of fact that United States was at war at particular time.

Courts take judicial knowledge of fact that in August, October, and December, 1917, when offenses were committed and court-martial called to try defendants, and trial had, the United States was at war.

3. War 32-Defendants held not without jurisdiction of court-martial, though offenses committed outside military reservation.

Negro soldiers, who in violation of orders broke camp and engaged in a racial riot, during which they committed murder, held not without jurisdiction of court-martial, on ground that their offenses were committed outside military reservation.

4. War 32-Sentence of soldiers to life imprisonment for violations of four different articles of war held valid.

Sentence of soldiers to life imprisonment imposed jointly for violations of Articles of War, §§ 64, 66, 92, 93 (Comp. St. § 2308a) held valid under article 92 if not valid under each article.

5. War 32-Defendants held subject to conviction for violation of four different articles of war.

Soldiers charged with violation of Articles of War, §§ 64, 66, 92, 93 (Comp. St. § 2308a), may be convicted on all four charges; the offenses being separate and requiring different testimony to establish.

6. Habeas corpus 92(1)-Review of conviction by court-martial limited to question of jurisdiction.

On habeas corpus to effect release of federal prisoners convicted by general court-martial for violation of articles of war (Comp. St.

2 F.(2d) 36

2308a), inquiry of court is limited to question of jurisdiction of court-martial.

Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.

Habeas corpus proceeding by William Frazier and others against A. V. Anderson, Warden of the United States Penitentiary at Leavenworth. From a denial of writ, plaintiffs appeal. Affirmed.

Turner W. Bell, of Leavenworth, Kan. (Ethelbert T. Barbour, of El Reno, Okl., and Elisha Scott, of Topeka, Kan., on the brief), for appellants.

Alton H. Skinner, Asst. U. S. Atty., of Kansas City, Kan. (Al. F. Williams, U. S. Atty., of Topeka, Kan., on the brief), for appellee.

Before SANBORN and LEWIS, Circuit Judges, and KENNEDY, District Judge.

LEWIS, Circuit Judge. This is an appeal from an order denying writ of habeas corpus to 41 petitioners, appellants here, who allege that they were unlawfully restrained of their liberty by the Warden of the United States Penitentiary at Leavenworth, Kansas. It appears from the petition and exhibits attached that they were all tried by general court-martial at Fort Sam Houston, Texas, in December, 1917, for violations of the 64th, 66th, 92d and 93d Articles of War (4 Comp. Stat. p. 3934 et seq.). The court was called by special order issued October 20, 1917, from "Headquarters Southern Department, by Command of Major General Ruckman," to be convened on the first day of the following month. It was composed of thirteen members, they met pursuant to the call, charges of violation of the four articles were regularly made against all of the petitioners, they were tried by the court, found guilty on all charges and sentenced to life imprisonment in the U. S. Penitentiary at Leavenworth, Kansas. From the record it appears that all of the petitioners were members of the 24th United States Infantry stationed at Fort Sam Houston on August 23, 1917, when the offenses of which they were convicted were committed. They were at that time, and for some time theretofore had been, encamped between Camp Logan and the City of Houston, for the purpose of guarding construction work in progress at that camp. The petitioners are all negroes. They were then in the military service of the United States, some as officers and the

others as soldiers. They were on the outskirts of Houston, and occasionally went into the city. Racial feeling and prejudice were manifested on these occasions and became very bitter between them and the city police officers, which resulted in a riot on August 23d ending in bloodshed. Adhering to the definition of the offenses given by the respective Articles, Charge 1 is that the petitioners, "all of the 24th Infantry, acting jointly and in pursuance of a common intent, having received a lawful command from Major K. S. Snow, 24th Infantry, their superior officer, to remain in camp, did, in time of war, willfully disobey the same. This at the camp of the 3d Battalion, 24th Infantry, near Houston, Texas, on the 23d day of August, 1917."

Charge 2, that the petitioners, "all of the 24th U. S. Infantry, acting jointly and in pursuance of a common intent, did, at the camp of the 3d Battalion, 24th Infantry, near Houston, Texas, on the 23d day of August, 1917, join in a mutiny in the 3d Battalion of the 24th Infantry, against the authority of Major K. S. Snow, 24th Infantry, the commanding officer thereof, and the officers of said battalion then and there present, by disregarding and defying the lawful orders of the said officers to disarm and to remain in camp, and by seizing arms and ammunition, by discharging of fire arms and by other disorders, did forcibly subvert and over-ride military authority and break out of camp with the intent of marching upon the City of Houston, Texas, to the injury of the persons and property therein situated."

Charge 3, that the petitioners, "all of the 24th U. S. Infantry, acting jointly and in pursuance of a common intent, did, at or near Houston, Texas, on or about the 23d day of August, 1917, in time of war, with malice aforethought wilfully, deliberately, feloniously, unlawfully, and with premeditation, kill E. A. Thompson, A. R. Carstens, M. Gerado, Fred J. Winkler, C. W. Wright, Earl Findly, R. H. Daniels, Horace Moody, Captain J. W. Mattes, 2d Illinois Field Artillery, Corporal Melvin D. Everton, Company E 5th Texas Infantry, E. S. Meineke, Ira D. Rainey, S. Satton, and Eli Smith, human beings, by shooting them with U. S. Rifles loaded with powder and ball."

Charge 4, that the petitioners, “all of the 24th U. S. Infantry, acting jointly and in pursuance of a common intent, at or near Houston, Texas, on the 23d day of August, 1917, with intent to commit a fel

ony, to wit, murder, did, with malice afore thought, unlawfully and feloniously assault G. W. Butcher, Alma Reichert, William J. Drucks, W. A. Wise, T. A. Binford, Freddie Scofield, W. H. Burkett, and James Edwin Lyons by shooting at and upon them with U. S. Rifles loaded with powder and ball."

[1,2] It is contended here that the court was not regularly called nor properly constituted, that the United States was not at war and, therefore, the court had no jurisdiction over petitioners. The respects in which it is contended that the court was not regularly called and properly constituted are not pointed out. Under the 8th Article the commanding officer of the Southern Department was empowered to call the court, appoint its members and designate the day of its meeting. The call, attached to the petition as an exhibit, is in strict compliance with this Article. All of the members of the court were officers and competent to sit. We take judicial knowledge of the fact that at the time the offenses were committed, at the time the court was called and at the time petitioners were tried, the United States was then at war. The record shows that each of the petitioners was an officer or soldier of the 3d Battalion, 24th Infantry, then in service, and they were subject to trial by court-martial on the charges preferred against them. The second Article provides:

"All officers and soldiers belonging to the Regular Army of the United States; all volunteers, from the dates of their muster or acceptance into the military service of the United States; and all other persons lawfully called, drafted or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft or order to obey the same," shall be understood as included in the term "any person subject to military law," or "persons subject to military law," whenever used in these Articles; and the 12th Article provides that "general courtsmartial shall have power to try any person subject to military law for any crime or offense made punishable by these articles."

[3] It is also contended that the court had no right to try the petitioners because it appears that the offenses were committed outside of the military reservation at Fort Sam Houston.

[4] These contentions all find refutation, we think, in Kahn v. Anderson, 255 U. S.

1, 41 S. Ct. 224, 65 L. Ed. 469, and Givens v. Zerbst, 255 U. S. 11, 41 S. Ct. 227, 65 L. Ed. 475. In the Kahn Case it appears that the petitioners were confined in the Disciplinary Barracks at Leavenworth at the time they were charged to have violated the 92d and 96th Articles of War, in that they conspired to murder and did murder a fellow prisoner, and that at the time they committed those offenses their confinement was under sentences of imprisonment imposed by court-martial for military offenses that they had theretofore committed. The argument that the petitioners did not possess the military status essential to cause them to be subject to the court's jurisdiction was held to be without merit. It was stated that even if their discharge as soldiers had resulted from the previous sentence which they were serving, they were still subject to military law because they were military prisoners. The punishment to be imposed under the 64th and 66th Articles is death or such other punishment as a courtmartial may direct; under the 92d Article it is death or imprisonment for life, as a court-martial may direct; and under the 93d Article the offender "shall be punished as a court-martial may direct." Each of the petitioners was sentenced to imprisonment in the United States Penitentiary at Leavenworth, Kansas, to be confined at hard labor, for the term of his natural life. The sentence was imposed upon all of the four charges of which petitioners are found guilty, and not separately upon each. Article 92 expressly provides that any person subject to military law who commits murder may be sentenced to imprisonment for life. The sentence imposed is, therefore, sustained on the charge .under that Article, without more; though we see no reason to doubt its validity under each of the other charges.

[5, 6] Learned counsel is in error in his contention that petitioners could be convicted only on one charge. The four charges were of distinct and separate offenses, separately defined by the four Articles, and it required different testimony to sustain each. Gavieres v. U. S., 220 U. S. 338, 31 S. Ct. 421, 55 L. Ed. 489; McRae v. Henkes (C. C. A.) 273 F. 108. Our inquiry is limited to that of jurisdiction of the courtmartial, of which we have no doubt; and its power was not exceeded. The District Judge did not err in denying the writ. Affirmed,

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