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putting the burden on the prosecution to which, under the laws of Massachusetts, the prove beyond a reasonable doubt that de- master is made responsible for the negligent fendant did the acts alleged against him. acts of his servants within the scope of their

The jurors could not have misunderstood employment. At the close of the plaintiff's that portion of the charge saying that it evidence a verdict was directed for the dewas the duty of the jurors and the court to fendant, upon which judgment was entered. see to the enforcement of the statute, for This is the error complained of. the court added that no prejudice for or There is no question but that it could have against the law should interfere with giving been found that the plaintiff was injured, the defendant and the government a fair and that her injury was due to the negligent trial. The expression of confidence that act of the defendant's servant. The only the jury would do its duty in the case was question is whether there was evidence from entirely free of intimation that the way to which it could have been found that the servdo their duty was to convict..

ant, at the time in question, was acting withThe court expressed no opinion upon the in the scope of his employment. facts, and we find no error in the statement The plaintiff's evidence tended to prove of the principles of law applicable to the that, at the time she sustained her injury, evidence.

she was at work for the defendant in one The judgment is affirmed.

of the rooms set apart for auditing its freight accounts; that her duties consisted in operating machines for punching and tabulating cards; that there were also employ

ed in the same room five other girls and two LIST V. NEW YORK CENT. R. co. men, Mr. Fitzgerald and Mr. Roberts; that (Circuit Court of Appeals, First Circuit.

in the room there were four desks, four January 7, 1925.)

tabulating machines, two large card-sorting No. 1748.

machines, and a large oblong, table that

Fitzgerald and Roberts worked at; that Master and servant Om 287(3)-Whether em

Fitzgerald was in charge of the room and ployee, injuring coemployee, was acting with

directed the work there carried on; that in scope of employment, held for jury. In action under Massachusetts law for in

Mr. Roberts' duties consisted in doing tabujuries to employee, struck by waste thrown lating work, assisting Mr. Fitzgerald, and by other employee in direction of waste basket, in tidying the room; that it was customary question whether other employee was acting for him to keep the tables and desks in orwithin scope of his employment held for jury.

der; that the work was of such a character Johnson, Circuit Judge, dissenting.

as to produce waste material and refuse, In Error to the District Court of the most of which came from the punching and United States for the District of Massachu

tabulating machines; that eight or ten waste setts; Peters, Judge.

baskets were provided for the purpose of Action by Marie V. List against the New

taking care of the refuse and waste mate

rial, one of which was supposed to be at York Central Railroad Company. Judgment for defendant, and plaintiff brings er- ea

each punching machine; that it had been ror. Judgment vacated, verdict set aside, customary for some time prior to the acand case remanded, with directions.

cident for some of the girls to eat their noon

luncheon in the room; that it was advantaLeo J. Kelly, of Boston, Mass., and

geous to the conduct of work of the nature Christopher J. Muldoon, Jr., of Somerville,

there carried on that the desks and table Mass. (John J. O'Hare and Kelly &

be kept clean and free from refuse; that on Schumb, all of Boston, Mass., on the brief),

the day of the accident some of the girls for plaintiff in error.

took their luncheon in this room, but the Ralph A. Stewart, of Boston, Mass. (Her

plaintiff went out to her noonday meal; that bert Schnare, of Boston, Mass., on the

thereafter she returned and resumed her brief), for defendant in error.

work, and between 2:30 and 3 o'clock was Before BINGHAM, JOHNSON, and AN sitting at a tabulating machine at the rear DERSON, Circuit Judges.

end of the room, engaged in her regular

work; that about this time Fitzgerald and BINGHAM, Circuit Judge. This is a Roberts came into the room, and Fitzgerald, writ of error from a judgment in favor of seeing that there was some orange peel, pathe defendant in a personal injury suit, in pers, an orange, and other waste material

c., Fredericks on the brickor, both DC (A.

3 F.(20) 435 on the long table, which had been left there R. W. Bishop, of Washington, D. C. (A. by the girls after their noon lunch, directed B. Lacey and S. N. Acker, both of WashRoberts to clean up the table and remove ington, D. C., on the brief), for appellant. the waste; that Roberts rolled up some of Frederick S. Stitt, of Washington, D. the material in a paper and threw it in the C., for appellee. direction of a waste basket back of where Before WOODS, WADDILL, and ROSE, the plaintiff was sitting; that the bundle Cirepit Judges. missed the basket; that Roberts then picked up the orange and threw it in the direction

ROSE, Circuit Judge. The parties here of the same basket; and that, instead of go

occupy the same position they did below; ing into the waste basket, it struck the plain

that is to say, the appellant, the American tiff, causing the injury complained of.

Mine Door Company, who is the owner of From this evidence the jury, as reasonable

letters patent No. 1,304,534, issued May 27, men, might find that Fitzgerald had charge

1919, to one Bowman, alleging infringeof the room, with authority to keep it in

ment by the defendant, Newberry, the aporder; that it was advantageous to the work

pellee here, filed against him a bill for an there being conducted that the desks and

injunction and accounting. The defendant tables be kept cleared of waste; that Fitz

set up the usual defenses of nonvalidity and gerald, in directing Roberts to clear away

noninfringement. After hearing, the learnthe waste, was acting within the scope of

ed judge below dismissed the bill. his authority; and that Roberts, in clearing

The patent was for an improved cable it away, was not only performing his duty

splice "for connecting cables or like eleas directed, but that, had he not been acting

ments.” It is formed by bending around at the time under the immediate direction of Fitzgerald, he could have been found to

the cable to be spliced a single piece of

diamond shaped or trapezoidal sheet metal; have been acting within the scope of his employment, as he was only performing a duty

the opposite projecting ends of the diawhich he had customarily performed in the

mond, called by the patentee spurs, having defendant's service.

a beveled edge adapted to mate each with The judgment of the District Court is the other. Such a splice, by pressure readivacated, the verdict is set aside, and the

nd the ly applicable, may be clamped as tightly as case is remanded to that court for further desired around the cable or other article. proceedings not inconsistent with this opin

the ends of which are to be held together, ion, with costs to the plaintiff in error.

and within quite appreciable limits inde

pendently of the thickness of the cable upJOHNSON, Circuit Judge, dissents. on which it is to be used. It will fit so

snugly upon the cable that, when covered by insulating material, it will be no obstacle to the winding up of the cable upon an

automatic reel, and there will be no appreAMERICAN MINE DOOR CO. V. NEW ciable projections to catch around corners BERRY.

or pillars in a mine. (Circuit Court of Appeals, Fourth Circuit. It was primarily designed for use in conJanuary 27, 1925.)

nection with cables carrying the electric curNo. 2286.

rent to mine motors, and the testimony

shows that for that purpose it is cheap, Patents 328–1,304,534, for improving cable splice, held invalid for anticipation.

readily applied, and effective, and that there Bowman patent. No. 1.304.534. for an im- is quite a fair demand for it. It is not proved cable splice for connecting cables, held questioned that the prior art discloses a invalid as anticipated in prior art.

number of devices which very closely re

semble the patent in suit, but it is said Appeal from the District Court of the they were not intended for use with cables United States for the Southern District of in carrying electric current in mines and West Virginia, at Huntington; George W. were never so used. They were to be apMcClintic, Judge.

plied 'to crinoline wires, to well ropes or Patent infringement suit by the Ameri- cables, or when designed, as some of them can Mine Door Company, a corporation, had been, for attaching wires or cables to against John A. Newberry. From a decree portions of electric machines, the portions dismissing his bill, the plaintiff appeals. of them resembling the patented device Affirmed.

formed an integral part of the whole, which

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could not without mutilation be made to plication on the ground that there appeared to serve the purpose of plaintiff's splice.

be no present ability on part of president to It is said that all the uses shown were in he had spent money for living expenses.

pay merely on affidavit of president's wife that arts which were not related to the operation of electric motors in mines, and that it 2. Bankruptcy ma 136(1)—Bankrupt or officer

may be ordered, under penalty of contempt, sometimes requires as acute a perception of to turn over property of bankrupt. the relation between cause and effect, and A bankrupt or the officer of a corporate as much of the peculiar intuitive genius bankrupt may be ordered, under penalty of which is characteristic of great inventors, contempt, to turn over property of estate in to grasp the idea that a device used in one

his possession or under his control. art may be made available in another as 3. Bankruptcy w 136(2)—"Due hearing" de

fined. would be necessary to create the device de Potts & Co. v. Creager, 155 U. S. bankrupt or officer of bankrupt corporation to

"Due hearing,” on application to require 600, 15 S. Ct. 194, 39 L. Ed. 275.

turn over property, implies a statement by the In the instant case it is argued that is plaintiff and an answer by the defendant, and precisely what was done. We think that an issue framed by what are practically pleadthis contention rests upon a misconception ings. as basis for a trial, at which each party is

entitled to examine the other as well as to inof the art to which the patented device be troduce witnesses. longs, which is that of splicing or "connecting cables or like elements.” It operates in- Petition to Revise Order of the District dependently of the use to which the thing Court of the United States for the Southspliced has been or is to be applied. It is ern District of New York. true that a splice for mine cables must be

In the matter of Harry L Sugarman, tight, fit snugly, and make a strong joint, Inc., bankrupt. On petition of Israel H. but all of these are at least desirable quali- Zinovay to revise order of District Court, ties wherever splices are used. Any one of denying application to require president of them may be essential in other places than bankrupt corporation to turn over to the mines, and in connection with other things receiver corporation's deposits, withdrawa than electrically operated mine motors, and, from bank four days before bankruptcy. what is more to the point, must have been Order reversed, with directions. possessed by some of the devices in the pri

David Haar, of New York City, for petior art. The art or mystery of the under

tioner. taker and of the fresh fish vendor are not related, but a device for preserving human

Foster, La Guardia & Cutler, of New bodies may anticipate another intended to

York City (A. S. Cutler and Nelson K. keep fish from spoiling, because the com

Scherer, both of New York City, of coun

sel), for respondent. mon purpose of each is to retard the decay of animal tissues. Brown v. Piper, 91 U.

Before HOUGH and MANTON, Circuit S. 37, 23 L. Ed. 200.

Judges, and LEARNED HAND, District It follows that the decree below was Judge. right, and is affirmed.

PER CURIAM. Petition for adjudication was filed against this corporation, of which the man Sugarman was president. A

receiver was appointed, who made applicaIn re HARRY L. SUGARMAN, Inc.

tion for a summary order against SugarPetition of ZINOVAY.

man, alleging in substance that some four (Circuit Court of Appeals, Second Circuit. of bank all the corporation's cash under

days before bankruptcy he had drawn out November 21, 1924.)

pretense of applying the same to various No. 88.

uses which the receiver deemed unlawful, 1. Bankruptcy Cw114(2)-Denial of applica

even if any application of the money was tion for order requiring president of bank- ever made other than Sugarman's keeping rupt corporation to pay over corporation's it. The petition concluded in common form funds on affidavit of president's wife, held with a prayer for payment or "such other

and further relief” as might be proper. On application by receiver of bankrupt corporation for order requiring president to pay

Sugarman never answered, but his wife over corporation’s funds, to which the presi- filed her own affidavit, stating in substance dent did not answer, it was error to deny ap. that her husband had taken the money and


3 F.(20) 437 spent it for living expenses, whereupon the 2. Bankruptcy Cw339—Trustee held not precourt denied the application without fur

cluded from contesting claim on judgment by

moving to set it aside. ther investigation, "on the ground that there

Trustee held not precluded from contesting appears to be no present ability on the

the allowance of a judgment rendered against part” of Sugarman to pay.

bankrupt after bankruptcy as a claim against [1,2] This was error of law. Receiver the estate, because he appeared after the judghad invoked the established principle that ment was rendered and moved to set it aside. a bankrupt or the officer of a corporate bankrupt may be ordered under penalty of Appeal from the District Court of the contempt to turn over property of the es- United States for the Eastern Division of tate in his possession or under his control. the Northern District of Illinois. Rem. § 2381 et seq.

In the Matter of the James A. Brady The leading case in this circuit is In re Foundry Company, bankrupt; Joseph E. Schlesinger, 102 F. 117, 42 C. C. A. 207, Lindquist, trustee. Carl Heim appeals where it was pointed out that the order from an order disallowing his claim, foundshould be made, or denied, "after due hear- ed on a judgment. Affirmed, with leave to ing.” See, also, Re Graning, 229 F. 370, present the claim on the merits. 143 C. C. A. 490, Ann. Cas. 1917B, 1094,

Frank P. A'Brunswick, of Chicago, Ill., for a more recent statement of principle.

for appellant. [3] Due hearing implies a statement by the party plaintiff and an answer by the

Gilbert F. Wagner, of Chicago, Ill., for person defendant; while the procedure is in- appellee. formal, there must be an issue framed by Before ALSCHULER, EVANS, and what are practically pleadings; on those PAGE, Circuit Judges. pleadings a trial is based, and at such trial each party is entitled to examine the other, ALSCHULER, Circuit Judge. Bankas well as to introduce witnesses.

rupt's voluntary petition was filed April It may turn out that what Mrs. Sugar- 13, 1923. Adjudication followed shortly man says is the story of the money taken thereafter, and appellant presented a claim by her husband is true, but to permit her against the estate for $7,000 and interest, to save the real defendant even from an- exhibiting as evidence a certified copy of a swering, not to speak of examination by judgment in his favor rendered in the sucounsel, is no more proper in bankruptcy perior court of Cook county against bankthan it would be at law, had the trustee sued rupt May 5, 1923, which was a few days Sugarman for this same money.

after the appointment of a trustee for the In sum, the proceedings below were not bankrupt estate. The trustee objected to "due,” therefore they were erroneous, and the claim, contending that the judgment is 90 was the order under review. Our man- void, and denying any indebtedness. date will reverse the order, and direct the [1] The judgment on its face purports lower court to require Sugarman to answer. to have been entered by default, and appelThe issue being thus framed, trial will be lant, although given opportunity by the had either in open court or by reference as referee, declined to present evidence upon may be most convenient. The petitioner is the merits of his claim, relying wholly upawarded costs.

on the judgment. The referee disallowed the claim, and his action was confirmed by

the District Court. In re JAMES A. BRADY FOUNDRY CO.

[2] Appellant contends that the trustee

is precluded from questioning the judgHEIM V. LINDQUIST.

ment, because he became a party to the (Circuit Court of Appeals, Seventh Circuit. state court litigation, in that upon learning December 11, 1924.)

of the entry of the judgment he appeared

in the court and moved to set it aside. He No. 3402.

did make such motion, which that court de1. Bankruptcy w319–Judgment rendered aft. nied for reason not appearing, but preer bankruptcy not a provable claim.

sumably because made after the court had A judgment rendered against the bankrupt lost jurisdiction of the case through expiraby default after bankruptcy is not provable against the estate, over objection of the trus- tion of the term of court at which the judgtee, without inquiry into the merits of the ment was rendered. Counsel contend that claim.

this was not the reason, because he says the

motion was to correct errors of fact, as appeal and petitions by the Standard Oil provided for by the Practice Act of Illinois Company, by the United States, and by the as a substitute for the common-law writ of Commercial Credit Company to superintend error coram nobis. Section 89, c. 110, Rev. and revise decrees rendered in 3 F.(20) 311, Stats. Ill. We find nothing in the record 3 F.(20) 309, and 289 F. 145. Decrees to indicate that the motion was of this na- affirmed, and petitions to revise dismissed. ture; but, if it were, we do not think it

F. R. Conway, Admiralty Atty. U. S. would make any difference, since it is ap- Shipping Board, of Washington, D. C. (A. parent that whatever the nature of the W. W. Woodcock, U. S. Atty., of Baltitrustee's motion, or the court's reason for more, Md., on the brief), for the United denying it, the merits of the case had not States. been in any way inquired into.

Malcolm H. Lauchheimer and John H. It does not appear that either party in Skeen, both of Baltimore, Md. (Sylvan the proceedings below "dotted the i's” or Hayes Lauchheimer, of Baltimore, Md., on "crossed the t's.” Sufficient appears, how the brief), for Commercial Credit Co. ever, to indicate that the trustee maintained

Hugh H. Obear, of Washington, D. C. there was no indebtedness due from the (Douglas, Obear & Douglas, of Washington, bankrupt to the claimant, and we hold this D. C., on the brief), for International was a matter to be inquired into upon the Finance Corporation. hearing of the claim, and that the action of

George De Forest Lord, of New York the District Court was proper. It may be City (Lord, Day & Lord, of New York City, assumed that in good faith appellant relied

on the brief), for John J. Orr & Son. upon the absolute incontestability of his

George W. P. Whip, of Baltimore, Md. judgment, and we are disposed to accord (Pillsbury, Madison & Sutro, of San Franhim further opportunity to undertake es- cisco, Cal., and Lord & Whip, of Baltimore, tablishment of his claim on its merits.

Md., on the brief), for Standard Oil Co. The cause is remanded to the District

Before WOODS and WADDILL, Circuit Court, with direction to the referee to hear the claim upon its merits apart from the Judges, and COCHRAN, District Judge. judgment itself, and to fix early date for such hearing; costs of this appeal to be WOODS, Circuit Judge. These appeals taxed against appellant.

and petitions to superintend and revise raise difficult questions, some of them not well covered by authority. Strong argument has been adduced against some of the conclu

sions of the District Court (287 F. 714; STANDARD OIL CO. V. MILLER et al. 289 F. 145), but after much consideration UNITED STATES V. SAME. COMMERCIAL CREDIT CO. v. SAME.

we are convinced they are sound in reason

and sustained by authority. (Circuit Court of Appeals, Fourth Circuit.

The view expressed in the opinion of the January 24, 1925. Supplemental Opin

District Court in 289 F. 145, that an ordiion, January 31, 1925.)

nary debt of the United States is entitled Nos. 2253 and 2287; 2255 and 2288; 2256 and

to preference in the distribution of the as2289.

sets of a bankrupt, has been held by this Bankruptoy ~468-Inadvertence in drawing court to be incorrect in Davis, Federal decree of District Court may be corrected by Agent, v. Pringle, Trustee, 1 F.(20) 860, agreement before entry of formal decree of decided September 29, 1924, but that error Circuit Court of Appeals.

Inadvertence in drawing decree of District does not affect the correctness of the conCourt may be corrected by agreement before

clusions of the court, as there was no debt entry of formal decree of Circuit Court of Ap- due the United States. peals.

It is suggested in the argument on behalf

of the Standard Oil Company that the forOn Petitions to Superintend and Revise mal decree adjudicating its rights by inadand on Appeals from the District Court of

vertence does not accord with the opinions the United States for the District of Mary- of the District Court above referred to, and land, at Baltimore, in Bankruptcy; John C.

that articles 1, 9, 11, and 12 of the decree Rose, Judge.

are inconsistent. The alleged mistake was In the matter of the Atlantic Gulf & Pa- not referred to in the arguments of other cific Steamship Corporation, bankrupt. On claimants. If there was an inadvertence in

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