*1 No res. fund disposing claim to the or res should no makes owner not it is be it since affirmed. the United States against Whether can be had relief fully- necessary party is a proceedings not been has of this the res contended required wages nature need not deposit of we now decide. The by created with the United agree appeared, States has in fact We do not by the statute.1 Zanicki, supra, certainly that the proper it be treated as a should statement Re registry, party in these if proceedings depositor of when it the funds res, should desires to a become such. against claim no such having deposit. of such party because be made This, me, it seems to is all need we per- Humes could have It be that well should decide. paid moneys to deposited be mitted the could Treasury nevertheless into the owner. wages
sue recover his from personam. proceeding be a
That would personal recovery does right
His held change
not the character of the res registry. For the same reasons ORVIS v. HIGGINS. per agree curiam of the cannot No. Docket 21531. Williams, supra, where Re fourth circuit joined States was Appeals United States Court of question. owner raise the Re did not Second Circuit. Mitchell, supra, the was made a owner Argued Jan. right party claiming as to recover one maintenance of the seaman the res Decided Feb. deposited transportation by it. The com- pany’ pro- motion to be dismissed from the
ceeding below granted and here is
costs it.
(C) On the The United merits. party become having to this ad-
miralty appeal, states it seeks to re- tthat cover no more than the decreed $200
by district court. hold We court, all of it heard
sustains the that Humes deserted
the Clove Hitch and that the forfeiture wages
of his properly mitigated to the
extent allowed. The awards of de- party
cree are affirmed. Each shall bear
its own costs.
HEALY,
As indicated when this matter was ear- considered, am
lier I that the shipowner proper not a party is ap-
peal and that its motion to have its name party appellee grant-
stricken should agree
ed.
I
that the order of the trial
1. The
law settled that in suits in rem
cannot be allowed to
intervene
who,
operator
ship
here,
proceedings.”
Dottawanna,
one
like the
merely
201, 222,
“has
a collateral interest
Wall.
some
L.Ed.
question
Cartona, Civ., 1924,
involved in the
suit and
no
Arthur
plaintiffs-appellaes.
Saypol,
City (Henry
New York
Irving H.
City,
Glenn,
counsel),
New York
L.
defendant-appellant.
HAND,
AUGUSTUS
N.
Before
n CHASE FRANK,
Judges.
Circuit
FRANK,
holding'
opinions
findings
that the
judges
were not
erroneous”
52(a),1
meaning
within
Fed
Procedure, U.S.C.A.,
of Civil
eral Rules
importance
often stressed the
we have
advantage
judge’s-
us
a trial
over
when
heard the witnesses as
he saw and
pointed
We have
out
in
testified.
appraise
cogency
ability
demeanor
lost to us because
cannot be
witness’
captured
words as re
admiralty
And, correspondingly,
cases.
may findings against
holding, we
paper.2
government
corded on
an anti-
action,
trust
perhaps,
times,
dis
have overlooked
the oral
was not
¡incompatible
in United
tinctions described
inferences which could
*3
364,
Co.,
Gypsum
333
be drawn
documentary
United States
U.S.
from the
542,
525,
not
what
action,
partly
dence
an
oral and
Gypsum,
anti-trust
the balance is
case.
they
undisputed
written
orally
facts,
had
or deals with
that
testified
defendants
then
concert,
may ignore
judge’s
we
and the trial
the trial
find
not acted
rejected
own,
Supreme
ing
(1)
and substitute
Court
if the
found.
undisputed
written
finding, remarking that
witnesses
evidence or
“the
some
that
fact
* *
*
agreed
credibility
had
to renders
of the oral
denied that
testi
doubtful,6a
mony extremely
(2)
were done.
things which
fact
if
do
judge’s finding
trial
exclusively
is in conflict with
must
rest
Where
give
we can
contemporaneous
undisputed
written evidence
documents
or the
**
Cab, facts,
credibility
In Yellow
weight,
so that his
evaluation of
little
judge’s
(c)
significance.6b
trial
affirmed the
has no
But
where the Court
where the
Lighterage
g.,
g.,
5.
See,
Petterson
See e.
N.L.R.B.
Universal
e.
v.
Camera
2.
Corp.
Corp.,
Towing
Cir.,
York Central R.
2
v. New
may disturb that rea we can lead but one think unusual circumstances.6c Orvis, sonable conclusion: Mr. It evidence sufficient follows Warner, son, Fall spoke to his support administra jury verdict creating Subsequently, in about a trust. support a suffice to tive spoke November Mrs. Orvis also finding.7 So the instant judge’s creating Warner about a trust. He told case, perhaps, record on'the his mother that Mr. had been look Orvis *4 jury’s an might, have affirmed a verdict ing subject into the al of and had trusts finding plain in agency’s administrative ready Merritt, lawyer, his talked to about however, That, we need not tiff’s favor. proposed his own trust. Mr. there Orvis finding of a is decide. For here the that after pro talked to his wife her about in evidence trial consists posed Warner, On trust. the advice of disputes, part side large of facts neither Merritt, Orvis Mrs. also consulted con judge’s the trial in such that circumstances trust, cerning November, her in the credibility unim evaluation of becomes apartment; Orvis then in Mr. Orvis was portant. short, In reasons we shall for apartment, stepped the into “have state, undisputed are the facts such * * * the stayed room a min firm have a “definite and conviction” not, testified, ute.” There was Merrill judge was mistaken in find that the trial “any respect her” by to secretiveness with pur Orvis “each ing that and Mrs. Orvis only her intention create to trust. creating in independent course” sued an relied, testimony judge which the on trial trusts, reciprocity that no the relied, have could to counterbalance the intended. We therefore hold that was foregoing Mr. is that of Merritt as to the erroneous,” hold, finding respectively given him by reasons to hus rather, those trusts made that each was of band and wife the of creation their in the other. of consideration respective only trusts. Not were those that, holding we assume because respective strikingly reasons similar but which “evanescent factor cannot of the none purported of them sufficed or ex to e., before the demeanor of come us” 7a—i. plain why each up of the a life trusts set judge fully trial be the witnesses—the estate; expression nor did those the of so, they said. Even everything lieved negative reasons at all the existence of an in nothing is there intent make reciprocal. the trusts be manner what we believe to offsets finding anof absence of an intention such virtually irresistible inference drawn the must, then, depend not an on inference facts., undisputed To offset that positive anything drawn from in tes inference, trial relied no on timony concerning inten statements of positive testimony that Mr. and Mrs. by Orvis, tion made Mr. Mrs. but on independently merely but relied Orvis acted an inference from their conduct. And negative testimony as to absence inference, turn, must rest aon recip expressed an intention to act of purely belief chance concurrence e., rocally, inti i. “no witness even events, although of several the' coincidental acted Mrs. the decedent with mated that occurrence of those events would ordi she his.” Orvis’ intention mind or with specialists (guided by experts) are Co. v. 6c. Broadcast Music Havana See particular finding facts, but, Corp., class Madrid Restaurant 175 F. of judge’s paradoxically, finding a trial lias 2d respect far less because be is blessed say wag might that a is en- A verdict jurors’ inexperience nor neither respect jurors high because titled expertness. administrative officers’ inexperienced finding facts, given high 7a. is See E. F. Drew Co. re- administrative spect the administrative officers because reciprocity in Since we find that Such a be improbable.8 highly narily be tended, just if Mr. is the situation of foundation be the ought lief the 1934 Orvis had been the of issue, in settlor a fact finding on judge’s trial wife.9a That trust created his trust plaintiffs (like having that side favor must, then, regarded as one made 'is proof as to that here) burden of which he a life His es retained income. character purely chance sue, unless subject by tate therefore tax on' positively confirmed events is of those trust, e., corpus value of that i. no con There is evidence.8a clear $250,466.46.10 evidence here. firmatory “contempla- We have not discussed the judge’s finding, rejecting because, tion death” were we defense therefore, reject not, estimate we do judgment to sustain the amount of the any orally testifying credibility of the resulting sustaining the “re- from our solely him differ from We witnesses. ciprocal not he af- trust” defense would inference about the only corpus fected. For the value of the evidence, assuming from the be drawn subjected wife’s tax trust was *5 question he witnesses without Commissioner, time when like spoke truth.9 a case credited plain- he could tax assess additional on intention, this, relating what an issue on (were we “contem- tiffs to sustain the Reinhard, & v. in E. F. Drew Co. said plation defense) long death” ex- Cir., 679, applicable: 684 2 170 F.2d pired. appellate is faced with “When an Reversed remanded. substantially question, good as is in it judge, position answer it as the trial CHASE, Judge (dissenting). provided accepts all the as oral true here, my so far as it agree as we do I cannot brothers fact, yield findings findings relevant. We these are erroneous.” parts those the evidence so far as The trial saw and heard witnesses may before concerning which cannot come us llave who testified matters decision; tendency explain plausibly we must as- controlled their had a direct might evanescent factors sume that these how trusts have been these two persuasive, when, as, were, have unless what does been created rationally “reciprocal” come before forbids con- so-called That taint. us clusions, shows, what no matter the unknown as his reasoned be- giving every After gave factors were. them lieved their them effect to tes- have, possible probative they might force timony weighing all the relevant facts problem becomes the same proved. support therefore findings judg- His as that before the trial court.” findings, ment and those as this record Szpyrka Railway Co., For a collection 8. convenient of citations International v. from, quotations of, App.Div. 393-394, 390, authorities 213 230 N.Y.S. subject improbabilities 553; Codarhurst, Cir., and coin 2 42 F.2d excessively 139, cidences that stretch credul 343. ity, Colony Y. see Old Bondholders v. N. Thymo Tyree Chemist, Inc. v. 9. Cf. J. S. Co., 413, F.2d 444. N. H. R. 161 Laboratory, Cir., 621, Borine 7 151 F.2d Clark, Cir., See also Kind 2 161 F.2d v. 624; Co., Cir., v. Anderson & 7 U. S. 36, 45; & E. Drew Co. v. F. 346; 343, Kuhn F.2d v. Princess 119 683; Cir., 679, 2 F.2d 170 Chamberlain Taxis, Cir., 3 119 of Thurn & Lida 548, Ward, 569, v. 21 How. 16 L.Ed. 704, 705-706. 211; C.C., Keller, 30 List Pub. Co. v. Commissioner, Cir., 774; Vreeland, v. 2 Lehman 109 F. 53 9a. Vreeland v. 3, 5-6; 99; N.J.Eq. 387, 393, Sharpe .2d Hanauer’s Estate v. 32 A. F Commis cf. sioner, Crispin, 2 149 F.2d 1 Cole’s Es v. L.R. P. Commissioner, v. 140 F.2d tate Cf., C.C., g., Davis, v. e. Smith 34 F. 8a. A.L.R. 3139. 783, 784; Morison v. Dominion Nat. 833(c), 833(c). Bank, 707, 711; 26 U.S.C.A. § § I.R.C. S.E. Va. shows, the result are unmistakably might study of evidence
careful might believing, believe, and drawing basis as reasonably use he did.
the inferences ap- for the typical instance is a This 52(a). Though Civil plication of mistaken times judges always facts, appellate judges
omniscient.
I affirm. would OF CO. INS. LIFE MUTUAL HUGHES Lynn Laney Laney, Laney and & Grant YORK. NEW Laney, Phoenix, Ariz., appellant. M. No. Evans, Hull, Jenckes, Norman Kitchel *6 Appeals Court Hull, Phoenix, Ariz., appellee. for S. Circuit. Ninth POPE, Circuit Before and GOODRICH 3, 1950. Feb. HALL, Judge. and Judges, District
POPE, appellee company In 1923 the insurance appellant Hughes policy of- issued to provided for waiver life insurance which premiums, payment and to him monthly he became sums the event that by bodily “totally permanently and disabled disease, is, be, will injury so'that he wholly pre- permanently, continuously and thereby performing work vented compensation, profit, and from gain ”* * * any gainful following occupation. again Hughes re- injuries spine. to his serious Fol- ceived injury, second when his back lowing the broken, developed multiple was chronic hypertrophic arthritis, which his doctor tes- continuing get progressively was tified From company 1942 the worse. premiums paid him waived monthly stipulated policy, income payments then discontinued waivers Hughes premium claiming totally permanently disabled within policy. meaning Thereafter premiums Hughes paid protest, under