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kane. The property was in charge of the firm of Cook & Clarke, real estate agents at Spokane. In 1901 and 1902 it was in the possession of one Camia, an Italian, under a lease which was to expire January 1, 1904; the rental being $150 per month. Gamia was running a questionable resort, and was having trouble with the police. The facts in regard to the tenant and the condition of affairs were, in a series of letters, detailed by Cook & Clarke to the appellant. In the fall of 1902 Cook & Clarke recommended the execution of a lease with the appellee Rogers for a term of five years to begin January 1, 1904, at the monthly rental of $150, the tenant to make all repairs. One of the purposes of executing this lease was to get rid of Camia and to put a third party in a position to buy him out. In November, 1902, the appellee Wilson, knowing nothing of the Rogers lease, bought out Camia's stock of goods and his lease, and went into possession. In the spring or summer of 193 he learned of the existence of the Rogers lease, saw Rogers personally, and undertook to buy the lease. Rogers demanded $1,500 which Wilson deemed exorbitant. Afterwards, through the intervention of Clarke, Rogers assigned the lease to Wilson for $750. Rogers paid Cook & Clarke $100 for this service, but Wilson paid them nothing. The appellant brought the present mit against Cook & Clarke, Rogers, and Wilson to cancel the lease. On February 6, 1906, he filed his second amended bill of complaint, in which he alleged that at the time of the execution of the Rogers lease the monthly rental vaine of the property was $350; that Cook & Clarke fraudulently represented to him that the rental value was not to exceed $150 per month, and advised him to execute the lease in question; that he relied upon such advice; that there was a secret and fraudulent understanding between Cook & Clarke and Wilson to share the difference between $350 per month and the $150 per month stipulated in the lease. Upon the evidence in the case the court found the equities with the appellees, and decreed the dismissal of the bill.

William T. Stoll, for appellant.

F. T. Post and Post, Avery & Higgins, for appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court.

On the trial of the case the overwhelming weight of the testimony. was that the rental value of the property at the time of the execution of the Rogers lease was no more than the sum of $150, and the trial court so found. The cancellation of the lease could only be sustained on proof that Wilson was a party to fraud in its procurement. There is no evidence of such fraud in the record. The lease which he purchased from Rogers was a valid instrument of record. It was assignable without the consent of the lessor. Aside from the knowledge that such a lease had been executed, there is no evidence that Wilson had any knowledge or notice of any previous transactions between Hubbard and Rogers or between any of the other parties to the suit. So far as the record shows to the contrary, Wilson was an innnocent purchaser for value. These considerations are sufficient, so far as Wilson is concerned, to sustain the decree of the court below upon the issues which were presented upon the pleadings.

But the appellant earnestly insists that there is proof of fraud on the part of Cook & Clarke which renders them liable in equity to account to the appellant, in the fact that on October 14, 1903, Cook & Clarke wrote the appellant to the effect that Rogers was reluctant to proceed with the lease and was not eager for possession, and they were trying to get him to assign his lease to Wilson, and said: "This might be

better than to force Rogers to fulfill his contract if he thinks it no longer for his interest to take possession," and that this was written after the date when they had received a responsible offer from one Atwood of $225 per month, which offer they not only declined to accept, but did not even report to the appellant. Of course this alleged fraud cannot be availed of to cancel a lease theretofore lawfully executed to Rogers and subsequently assigned to Wilson, who had nothing to do. so far as the record shows, with the conduct of Cook & Clarke, and had no knowledge of what they were doing. Nor do we see that the proofs justify the charge that Cook & Clarke acted fraudulently in the matter. There is nothing to show that it was to their advantage to let the premises to Wilson rather than to Atwood. The offer of Atwood was made about a year after the Rogers lease had been executed and placed of record. The Rogers lease was assigned to Wilson on November 17, 1903. The date of Atwood's offer does not clearly appear. Atwood testified that it was in the summer or fall of 1903 or early in the following winter. Taking the statement which is most favorable to the appellant, that of Clarke, that it was made some two or three months before the assignment of the Rogers lease to Wilson, the question arises: What was the duty of Cook & Clarke with reference to that offer? At that time the Rogers lease was outstanding, and it was not known that Rogers would transfer it or agree to its cancellation. Atwood's offer was for a term of three years and contained no offer to make repairs. There is nothing to indicate that he would have been willing to pay Rogers any sum for the transfer of the lease. Wilson, on the other hand, had an inducement to pay Rogers the sum of $750 in the fact that he had bought out the stock, goods. and fixtures of Camia, having paid him therefor, and for the lease and the good will of the business $2,000. His payment to Rogers was equivalent to an addition of $12.50 per month to the monthly rental of the lease. It may be that Cook & Clarke were remiss in their duty in not notifying the appellant of Atwood's offer and giving him the opportunity, if he saw fit to avail himself of it, of making overtures to buy the Rogers lease. But their error, if error they made, is not shown to have been more than an error of judgment nor such a dereliction of duty as should charge them in equity with the payment of money to compensate the appellant for the additional rent which might or might not have resulted from a possible lease to Atwood. It is true that since the execution of the lease rental values have greatly increased, owing to the rapid growth and prosperity of the city of Spokane, and, in the light of subsequent events, it now appears that it would have been better not to have executed the Rogers lease. But it does not follow that it was bad judgment to execute it at the time when it was made. The appellant could judge of the advisability of making the lease as well as could the agents. As the court below said: "It was as much his duty to peer into the future as it was that of his agents." In brief, we find in the record no ground whatever to set aside the lease and no reason sufficient in equity to require Cook & Clarke to account for the difference between the $150 a month stipulated for in the Rogers lease, which also bound the lessee to make all repairs at his own expense, and the $225 per month which Atwood offered to pay, without

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assuming the burden of repairs. And especially is this so when we consider that the appellant was powerless to accept the Atwood offer when it was made, even if it had been communicated to him, and that there is no proof whatever that the agents ever received directly or indirectly, any benefit from any of the transactions save and except the sum of $100 paid by Rogers for their services in selling his lease to Wilson.

The decree of the Circuit Court dismissing the bill is affirmed.

FREDERICK LEYLAND & CO., Limited, v. HOLMES.

(Circuit Court of Appeals, Fifth Circuit. March 5, 1907)

No. 1,590.

1 SHIPPING-INJURY TO STEVEDORE-DUTY OF VESSEL.

The owners of a vessel owe a personal duty to the members of a stevedore's gang employed to work thereon to provide reasonable security against danger to life or limb, and to warn them of any latent danger caused by the ship, or for which the ship is responsible.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 349, 350.]

2 SAME-LIABILITY OF VESSEL-DEFECTIVE HATCH COVER.

In a suit by a stevedore's employé to recover from a vessel for a personal injury caused by the falling of a hatch cover, precipitating him into the hold, it was shown that, when in the course of his duty he went to remove the cover which had been closed by the vessel, or by those for whom she was responsible, he was not warned of any danger; that he went upon the hatch, when, without fault or negligence on his part or on the part of his fellow laborers, the supports immediately collapsed without apparent cause. Held, that such evidence was sufficient to make a prima facle case, which, unless overcome by countervailing evidence, entitled

him to recover.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 349, 350.]

Appeal from the District Court of the United States for the Eastern District of Louisiana.

Wm. C. Dufour and H. Generes Dufour, for appellant.

John D. Grace, for appellee.

Before MCCORMICK and SHELBY, Circuit Judges, and NEWMAN, District Judge.

PER CURIAM. The learned judge who sat in the court below placed on record a memorandum of his reasons for refusing a new trial, which we here quote in full:

"PARLANGE, District Judge. I shall state briefly my reasons for refusing

new trial.

The first specification of the motion for a new trial is an assertion that the court shifted the burden of proof from the libelant to the claimant and thereby committed error. That specification is entirely without foundation. When stating orally my reasons for decreeing in favor of libelant, I said that be bad, in my opinion, fully met the burden of proving affirmatively the vesel's negligence and his own damages. Libelant clearly and distinctly proved by the testimony of several eyewitnesses the circumstances and the cause of

the accident. Unless there is reason for disbelieving these witnesses, or unless their evidence is outweighed by countervailing proof, it is plain that the case is with the libelant. These witnesses were not impeached. They stood well the test of cross-examination. Their testimony was not inconsistent with probability, and showed no inherent weakness. If it was said that it must be assumed, entirely without proof, that they were so biased towards libelant as to commit perjury, because of the mere fact that they, as well as himself, were longshoremen, the reply would be that such assumed bias would be offset by the bias towards the ship which the claimant's two witnesses would also have to be assumed to have labored under.

"The claimant produced only two witnesses, the first and second officers. They did not see the accident. The sum and substance of their evidence is the assertion by them that the 'fore and after' was safe, and has not been repaired. They admit that the accident happened, but they make no explanation with regard to its cause. The first officer says that the hatch was closed in Liverpool by stevedores. He cannot tell whether an officer was present at Liverpool to see that the hatches were properly put on. He admits that the hatches are often opened by the crew to clean the holds out. He testifies that 'he never knew' that the burden piece was sprung on the day of the acci dent. I can find but little in his evidence which can be of any benefit to the vessel. The second officer admits having a very bad memory. Being asked whether any repairs have been made to the burden pieces since he has been on the ship, he replies: 'None that I know of.' On one occasion it was nee essary to straighten a burden piece on one of the hatches with block and tackle; but he cannot tell when this took place, except that it must have been within three years, because he had not been three years on the vessel. There is but little in his evidence of benefit to the claimant. There are two experts in the case. Mr. Malochee and Capt. Morse, both excellent men, who, beyond all question, testified absolutely what they believed to be the truth. But when Mr. Malochee's testimony is analyzed closely, as I have done, it will be found that it is not nearly so strong in favor of the vessel as the learned counsel for the claimant has contended. Besides Mr. Malochee has admitted frankly his lack of familiarity with hatches and with matters concerning ships. This was the first occasion on which he has viewed a hatch for the purpose which was required of him in this case. On the other hand. Capt. Morse, a man of equally high standing with Mr. Malochee, and much older and of far greater experience with vessels, who was a ship carpenter by trade and a builder of wooden and iron vessels, who was for 20 years steamship superintendent for the Southern Pacific, testifies unhesitatingly, after viewing the hatch and the 'fore and after': 'It was bent so that I would not use it in that condition. I did not consider it safe.' It is clear, therefore, that the libelant has proven his case by a large preponderance of

evidence.

"While, as I have already said, I did not, when deciding the case orally, say that the accident had shifted the onus of the proof of negligence to the claimant, I did say incidentally that, besides the affirmative proof made by libelant, the cause was clearly one in which the doctrine of 'res ipsa loquitur' applies with full force. And I do not see how there can be any doubt on that point. It is doubtless true-in fact, it is familiar and elementary law-that. as a general rule, negligence will not be presumed from the mere happening of an accident. I have very often had occasion to apply the rule in master and servant cases, in which cases there are special reasons-which need not now be gone into-for the application. But there is an exception to the rule which is as familiar as the rule itself.

*

"The A. & E. Enc. Law (2d Ed.) verbo Negligence, vol. 21, p. 513, after stating the general rule, says: * It is proper, however, to state in a general way that wherever injuries occur in the conduct of operations which common experience has shown can be safely carried on with the exercise of reasonable vigilance, judgment, and care, the mere happening of injuries will be regarded as sufficient to warrant the submission of the question of negli gence to the jury'-numerous cases cited. Judge Brown, in Warn v. Davis Oil Co. (D. C.) 61 Fed. 632, said: "This ruling is based upon the principle of

wide application in the law of torts, that injuries which do not ordinarily happen when reasonable and proper care is taken to avoid them, afford a presumption of negligence,' etc. See Mr. Justice Lamar, in Tolsen Case, 139 C. S. 555, 11 Sup. Ct. 653, 35 L. Ed. 270. See Judge Morrow, in The Joseph B. Thomas (D. C.) 81 Fed. 578, and especially the same case affirmed in the Circuit Court of Appeals (86 Fed. 658, 30 C. C. A. 333, 46 L. R. A. 58), and the cases and authorities there cited.

"I deem it needless to cite other authorities on such a point. The burden of proof never shifts, either in a civil or a criminal case, notwithstanding loose language which may be found in the books. But when a prima facie case is made, judgment will then be rendered against the opposite party, unless he goes forward with countervailing proof which overcomes the adversary's prima facie case. This is what is sometimes erroneously termed the shifting of the burden of proof. Therefore the court did not, and could not, under its very distinct views of the question of law involved, have said, that the accident shifted the burden of proof of negligence to the claimant. But it is certain that there is absolutely no proof that the libelant was in any way negligent. It is equally certain that a vessel is bound to have her hatches in such condition that her stevedores, invited by her to come on board, can open the hatches without danger to life or limb, provided they use reasonable care and prudence. It is also well settled that a vessel is bound to give notee to the stevedores of a latent danger caused by the ship or for which the ship is responsible. The owners of a vessel owe a personal duty to the memhers of the stevedore's gang to provide reasonable security against danger-to life or limb. Judge Morrow, in The Joseph B. Thomas, affirmed by the Circuit Court of Appeals, cited supra. And it is also very certain that, when it is shown that a stevedore is called by the vessel to open her hatches, which were closed by her, or by persons for whom she is responsible, and that the stevedore is not notified of any latent danger, and he goes on the hatch and undertakes to open it, using reasonable care and prudence, and immediately, and without any fault or negligence on his part or on the part of his fellow laborers, the supports of the hatches collapse without apparent cause, and the steredore is precipitated into the hold, and he is severely injured, he will be held to have made out at least a prima facie case entitling him to recover, unless the opposite side then goes forward with the evidence and overcomes the stevedore's prima facie case.

"The damages awarded are moderate, In view of the evidence. No attempt was made to contradict the testimony of the libelant's doctor or the libelant's own testimony on the question of his injuries. No medical examination of the libelant's person was sought by the claimant. I do not see how the claimant, if it conceded arguendo its liability, could, under the evidence, reasonably contest the amount awarded as damages."

We have heard with interest the able oral argument of the proctor for the appellant, and carefully read his printed brief, and have fully examined all of the testimony set out in the transcript of the record, and find no reason therein for reversing or qualifying the action taken or the views expressed by the learned district judge as above shown,

in this case.

Therefore the decree appealed from is affirmed.

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