*1 Fong alleged is, fact, a member father, in in or kitchens of two and that each family.” alleged his was of father’s immediate the house has, and since Fook’s house Fong Fook, stationary had, stove. built has with The matter in connection of dialect the bedrooms hand, testifies that the other on into applicant entry of the admission an sky- have houses and kitchens of two' those in the United States was this discussed daylight from the enters lights,' that Nagle, 30 Tung Noy ease of Lim is court; open that in his house there also Nagle v. of F.(2d) also in the ease stationary two in stove one'of 41 F.(2d) Jin 522. casual Suey, While the kitchens. use of a dialect who Chinese witness using diar lived different different districts between “Whether difference might weight, not have determinative lects alleged brothers names of of his two wives speak inability or it is evident that Fong applicant gives them and as as the understand of district in which the dialect of "gives Fook to a difference them is due very substantial evi- he claims to have lived a dif- appears such not, dialect or to be dence that never in that district. he lived un- applicant’s as claim ference this make sig- challenged his Where attention is says the name of applicant tenable. The that dialect uses in connection nificance he alleged prior-landed his the wife each of and, with full citizenship, with his claim alleged brother, Jeung brothers is His Shee. knowledge possible consequences of Fong gives of each of those Fook, the name ignorance, his is nevertheless unable he Leung women Shee. familiarity dialect of the show with the brother, applicant “The that his testified reasonably district could attributed which Hong- Fook, stopping Fong over in when inability living therein, to a such Chinaman kong way United States on to the significant that it is so cannot be that held store, he San Yin where at the Yee stayed rejection citizenship of his claim based employed." he testifies that Fong was Fook discrepancy is unreason- such unfair or stayed not store in his brother This test is one able. oldest known. Wing Man employed, Sin Judges xii: 4r-6. store. Order affirmed. support applicant’s “As to to the Fong identifying witness, claim -which the that brings, have assume Tuck, one extraordinary applicant he and have both give full value to their memories in order to testimony regarding the details of their meet- PARISO TOWSE et al. twenty-five years ing ago, applicant when No. 92. testimony Moreover, pre- a child. their make disagreement which seems to sents a Appeals, Court of Second Circuit. attempted support practically worthless the Dec. applicant’s claim. witness to this alone Fong that Tuck came applicant states Fong Tuck Hongkong; him to see Fong him; greeted was alone when he departed from good-bye and Tuck him bade working, applicant was store which the Fong accompanying one was that no Fong departed. Tuck, he Tuck when other, hand, with testifies that he his son store; his son when he entered him greeted applicant; him he when say good-bye applicant, to the 'did departing applicant him saw but, away. son when he came company al- shows that in “The record gave applicant leged father the name of this gives applicant this that of one sons, presented makes it hold that this ease unreasonable son claimed at time applicant *2 Taylor, City Porter & of New York B, (George City, New York Greenough, of
counsel),
appellee.
for
MANTON,
HAND,
Before
Judges.
Circuit
HAND,
Judge.
hoy
plaintiff,
along
The
fifteen,
others,
several
was taken
the defendant,
Clayton, for
belong-
drive
a motor truck
ing
defendant,
Towse,
to the
Mrs.
to serenade
some
justify
friends. There was evidence to
jury
finding
through
way,
that on the
Clayton’s negligence, the car collided with a
injured
plaintiff. Clayton
tree and
was
defaulted,
sued and
and the
assessed
damages against him. Mrs. Towse defended
ground
she
had not consented to
Clayton’s
truck,
use
and therefore
she was
under
not liable
section 282-e of the
La,w
Highway
(Consol.
York
New
Laws N.
25).
question
e.
The
raised
appeal is
enough
whether there was evidence
go
to the
that she liad.
plaintiff proved nothing except
The
truck,
the defendant owned the
and rested on
Clayton
had used it
with her
Mrs. Towse testified that
consent.
boarding
kept
she ran
house and
the track
for the needs of the
Clayton,
business.-
young man of twenty-four, was
nephew,
her
expense.
and lived with
her
her
She could
truck,
drive the
and he did such errands
directed, going
as she
supplies, taking
after
the hoarders’ trunks hack and
forth,
like;
for none of which did
pay him
she
wages. He
house,
had been born
always lived
aunt and did chores
her,
carrying
such
wood, milking
for
cows
and so on. His mother and father also lived
occasionally
with her and
the father drove
single family
All
ear.
four were a
living
together at
doing
Mrs. Towse’sexpense,
mu-
Clayton
service.
tual
had often asked leave
of Mrs. Towse to use the truck for his own
purposes,
always
she had
him,
denied
day
and on
she
nothing
knew
proposed
Ms
drive until she saw him
moving away,
far
too
off to hear her call for
Clayton
his return.
this,
corroborated her in
judge thought
and the
there
evi-
jury might
dence on which the
find that he
using
the car with
consent,
Mrs. Towse’s
complaint.
and dismissed the
appealed.
liability depends upon
The defendant’s
Wing Wing,
City (James
&
(section
New York
a statute of
York
New
282-e of the
Purdy,
G.
City,
New York
counsel),
Highway
c. 25]),
Law
Laws N. Y.
[Consol.
appellant.
case in fact
turns
matters of
supra, page
Y.,
a mo
433 of 220 N.
possession of
procedure; whether
Balfe,
owner and Rose v.
presumption that
raises a
torcar
whether,
so, the 119
Ann.
Cas.
use;
to its
has consented
*3
upon
disappears
presumption
defend
said
the
the
that
put
than
does more
presumption
any
defence;
survive;
in
“substantial” evidence
which it does
proof,
ant
to
appear
imply
de
would
to
no
than that
may
the
this
more
use
plaintiff
the
and whether
prescribed
In the defendant
situation
of consent.
as evidence
denials
fendant’s
ordinary
proceed
is
must
or lose. This
the
a
difference
critical
bar it makes
at
the ease
meaning
a
(Wigmore,
2491)
action
in
case of
in an
the
§
not arise
questions do
that these
justification
its
presumption.
District
true
Whatever
the
law,
event
in which
at common
place
presumption supplies
rules of
a
the
by
policy,
bound
the
would not be
Court
inference,
reason
by
court— of rational
and is
state
the
as understood
evidence
etc.,
“pre-
a
circuit—[Massachusetts,
sharply distinguished
to be
from
at least
A.)
sumption
fact,”
of
(C. C.
so-called. While
Pharmacal Co.
of
Norwich
Co. v.
controlling
be
by
course the evidence
rebuts it must
those
934, 939], dr
F.(2d)
18
enough
is-
“substantial,”
is
the
v. Illinois
near
to
[Hemingway
proof
of
the burden
5);
to
(C.
logically significant,
A.
sue
so much
843,
C.
bé
once
R.,
846
114 F.
R.
Central
goes in,
always
A.
must
dis-
1, 6,
(C.
presumption
7
C.
247 F.
Barber,
Harmon v.
appear.
probative cogency
The
of
facts
statute,
“law” of the
a
a
we have
6)]. Here
it,
hypothesis not
follow;
being by
and which raise
coneededly we must
state, which
enough
im-
adopt
support
conclusion,
a
cannot
procedure,
is whether
by
rebuttal,
administration, prove
evidence in
at least if this
in its
state courts
ed
truly such,
positively
it
be
and does not itself
We think
is.
its text.
is as authoritative
course,
support
issue,
507,
though
times, of
White, 238 U. S.
Ry. v.
Central Vermont
may
Ann.
it
do so. Thus it follows that -the office
1433,
Ed.
Cas.
865,
59
35
Ct.
S.
presumption
disappear
a trial of a
when the
appeal
must
on
252,
up
came
1916B,
opposite
puts
party
330,
proof,
89 A.
side
and the
87
Vt.
of Vermont.
court
a
charged
fail,,
proof
under the
with the burden of
must
arose
action
The cause of
618.
goes
if
ad-
Liability
further,
he
cannot use his
(45 USCA
or
Employers’
Act
Federal
versary’s
support
affirma-
as to where
question was
51-59), and the
§§
impose
upon
issue of
tive.
hold otherwise would be to
proof lay
To
the burden
having
proof
party
upon
burden of
In Vermont
contributory negligence.
negative.
con
that he had not
had to show
is
while, as
well
injuries,
tributed
Upon such an
issue as
at bar
that'
a federal
rule is otherwise
known, the
might
possible
argue
indeed
Court held
Supreme
court.
positive sup
owner’s denial could
be used
statute, and that
part
a
procedure was
personal
port
has
ac
of his consent. He
canWe
see
must conform.
courts
the state
quaintance
and the
cer
fact,
is
proof and
between burden
no difference
tainly
affirmatively
to find
denial
free
that his
be true.
must
presumption, and the converse
false
Moreover,
the denial
is untrue.
to find
decisions are
New York
that the
So we think
something necessarily known to the wit
before us.
controlling in
matter
ness,
finding
prop
ought to
true the
result
That, however, would,
statute was
at least
before
osition denied.
settled
It was
carry
liability depended upon
too
An ex
generalized,
the if
matters
fax.
and when
passed,
prove
example
of a
not for
a contract
possession
vehicle ecutor could
law,
common
promisor,
calling the
the driver
testator
gave rise to
(Norris
demanding
verdict
his denial
business
because
owner’s
v.
44;
Sterling, patently
The law does not ordinari
43,
41 N.
Ferris v.
untrue.
Kohler,
Y.
ly
fine;
party
produce affirma
249, 253,
406,
N.
Ann. Cas.
must
108
E.
cut
214 N. Y.
Y.
H. R. R.
431,
proof.
Y.
N.
C. &
1161;
Pardee, 220
tive
Cruzan v.
Potts v.
N.
879;
Co.,
594, 597, 116 N. E.
785;
R.
R.
227 Mass.
N. E.
Fiocco v.
78, 8 A.
433, 116
(sem
Lonergan
Peck,
361,
Mass.
364
219, 220,
309;
E.
136
Carver, 234 N. Y.
137 N.
v.
21;
Berdell,
13,
97 N.
ble);
v.
Y.
Rosenmond,
144
Wallace
Moore v.
Overall, Mo.
Savings
16
one,
Bank v.
639),
step
shorter
Boatmen’s
N.
and the
was a
E.
Mass.
D’Arcangelo Tartar,
265
imposed liability
App.
if
had
after the statute
87,
the con
350,
apparently
164
merely
(Chaika
its
N.
consented to
use
certainly did
trary
facts,
Vandenberg,
169
earlier Massachu
pre not mean to overrule the
effectin New York of the
103). But the
be an instance
put
Hence if this
after
in setts decisions.
sumption
the defendant
free,
should, we
Pardee,
presumption,
In
true
proof
plain.
not so
Potts v.
9G5
free Co. v.
though
Greene,
2);
were
F.
212
A.
judgment,
(C.
88
affirm the
C.
Clay-
Mochlowitz,
Fire
reject
Association
Phila. v.
Mrs. Towse
the denials of
F.
2)], though
possession
(C.
ton.
fact
A.
should
The mere
of his
C.
we
support
step
of con- not unaided
truck
an inference
ourselves take the
did not
further
necessary.
sent;
any
rate the Now York courts
yet was all the evidence
At
certainly
verdict,
could ho
have sent
such conclusion
based.
the issue
had Mrs.
Clayton
Towse testified alone.
cor-
is, however,
way in which
This
not the
already
her, and,
appeared,
roborated
as has
York
have
the mat
New
courts
dealt with
changed
in several
cases corroboration
ter, as
understand
case
we
it.
In the
suppose
result. Wo are of course not to
(Chaika
which has arisen under the statute
*4
matters,
there is a rule
in such
of thumb.
any
denied
Vandenberg),
v.
the owner had
which the New York courts have been
car, and,
use of
consent
the driver’s
the
to
question
to disclaim. The
is that
solicitous
ground,
went off on another
while
decision
the
so
as to
evidence
which
often arises
what
remained,
presumption
the
the
court held that
justifies
although
applica-
verdict;
a.
earlier
jury rejected
if
the denial. The
the
tion we must
the
own that
result seems to
they
authoritative, illus
cases,
are
while
not
indistinguishable
putting
from
burden
us
the
which
been
trate the doctrine
carried
proof
negative.
Clayton’s
upon the
Here
statute,
confirm
over into
and further
the
subjected
nearly
testimony
bias
to
the
understanding.
question
our
In these the
scrutiny
Closely
same
Mrs.
re-
as
Towso’s.
engaged
driver was
in the
was whether the
blood, along
parents
lated in
de-
time
owner’s business
the
of the accident.
pendent upon
support,
constantly
her for
Sterling,
249,
214
108
In Ferris v.
N. Y.
N.
service,
every
her
he had
the
motive
avert
406,
1916D, 1161,
E.
Ann. Cas.
the owner
loss occasioned
in-
fault. Nor
itwas
driver,
son,
the
Ms
en
denied that
herently unlikely
given
that she should have
gaged, and
driver
Mm. Be
the
corroborated
larger
him
use of the truck than either ad-
interest,
suspi
cause of their
some
Again,
though
mitted.
dis-
admitted
story,
cious circumstances in their
the caso
directions,
obedience of her
and for
mat-
was held to be one for the
In
jury.
Potts v.
exposed
technically
ter
charge
himself
to a
78,
Pardee,
431, 116
8 A.
220 N. Y.
N. E.
of larceny,
calamity
neither balanced the
785,
driver,
R.
himself
the
plaintiff
the
called
plaintiff’s
personal injurien
which the
severe
longer
employ,
whose
the owner’s
de
might bring upon
family.
the
Mis interest
nial, coupled
owner’s, was found
with the
the
greater
outcome
far
than that of
require
So too in
sufficient
dismissal.
ordinary
an
driver, whether or
not
em-
Elliott,
326,
Der
v.
233 N.
Ohannessian
Y.
ploy
It
the owner.
is true
in Ferris
E. 518,
135 N.
make
since can
no difference
Sterling
v.
the stories
the owner and driv-
Balfe,
who called
witness.
In
v.
the
Rose
suspicious
they
er wore
read;
as
and that in
481, 119
842,
N. E.
Ann. Cas.
Moore
slight
v. Rosenmond it took
abut
mod-
1918D, 238,
upon
same
the
result followed
ification of
story
charge
the driver’s
the
denial,
again
plaintiff
the driver’s
whom
the
owner,
plausible
too a
variant.
Carver,
219,
called.
Y.
Fiocco v.
137
Moreover, apparently
situation is not
depending-
N.
309,
upon
E.
read as
we
quite
though
treated
as
put
plaintiff’s
proof,
negatived
own
proof
affirmative
of consent, else Potts v.
possibility that
driver was
owner’s
Pardee,
Balfe,
Rose v.
and Der Oliatmessian
business at the moment. In Moore v. Rosen
hardly
Elliott
v.
could
have been decided as
358,
mond,
639,
238 Y.
144
N.
N. E.
they were.
Just
line
where
is to be drawn
story, though,
stood,
driver’s
itas
it denied
are
sure,
appears
we
not
to us that the
business,
he was on
owner’s
corroboration at bar will not serve.
version,
allowed to find variant
Judgment reversed.
greatly
did
differ
said,
not
what he had
though necessarily
partial
contradiction
Judge
of it.
(dissenting).
majority opinion
states
appears
It
from foregoing that, by
would, if
to consider
free
in-
law,
the New York
either
presumption
dependently,
judgment.
affirm the
1 do not
evidentiary
must be
as
stages
treated
at all
preclude
think the New York eases
case,
us from
or else that
this issue a
doing
may
so. It
positive
opinion
that the
denial
true
be taken
evidence of
Chai-
ordinary
Vandenberg,
consent.
ka v.
In
cases
hibition Commissioner without con- appellant, permit sultation termi- nating December Commis- appellant that, sioner wrote to the in accord- Treasury permit ance with a decision, the granted operation thus continue in un- til surrendered or revoked under article Regulations 61, and stated that would necessary specially dena- to renew permit year 1927, alcohol for the and tured attaching him, letter advised written permit making part appellant’s August 31,1928, appellant filed files. On application, on December permit conduct his granted renewal permit spe- him to withdraw business to ’ When, on cially Decern- denatured alcohol.