*1 161 States, supra, F. v. United Hulahan page think it was 446: “We
2d at jury, court, determine not the evidence, if
whether the Government’s bring believed, the activities would and sustain within the statute
defendant jurisdiction.” Nick v.
federal See also S., A.L. Cir.,
U. 122 F.2d
R. 791. government’s proof
From the jurisdictional
issue, is obvious that
requirement properly As satisfied.
previously noted, in order to circumvent navigation hazards of
certain River, important
Mississippi fac- a most commerce,
tor in interstate a canal some length miles been constructed adjacent protective thereto the moving river
levees. Traffic down the required to enter the canal length travel its in order to avoid treach-
erous rock formations river. conclude defendants the conduct of interfering delaying with and protective
maintenance levees
was sufficient to constitute an obstruction mean- interstate commerce within the ing of the Act. judgment is affirmed.
SEARS, ROEBUCK & COMPANY and Company,
Allstate Insurance Appellants,
ALL LIFE STATES INSURANCE COM PANY, Appellee.
No. 16291.
United States Appeals Court of
Fifth Circuit.
June
Rehearing July 17, Denied *3 products, merchan- all articles of tires, parts
dise, principally automobile accessories, com- in interstate sold registered mark in con- merce, and had a articles. class of such with each nection organ- since that in 1931 and has ized Sears continuously sale time United states pf general automobile *4 casualty of laws Under the insurance. engage life not also Texas could qualified first insurance It was business. of Texas to do in the state registered marks under 1936. It service (1) All- name Lanham Act showing design an (2) a state and as to hands, with automobile held in two legend good All- hands “You’re Jr., Kendall, Pinkney Grissom, Dave marks state.” Each of these services Kendall, Jr., Tex. M. David Dallas. specified “automobile relate to to Adsit, Livingston, & (Lederer, Kahn damage, (fire, theft, property insurance Wright Knight, Chicago, 111.,Thompson, etc.) liability, 102.” personal in Class counsel), Dallas, Tex., Simmons, & Company, Insurance All States Life appellants. for having appellants, no connection with the Newman, Carrington, Frank G. Paul of Texas on was chartered the state Gowan, Carrington, Gary, Otis B. engage July 1, 1955, insur- in a life to Dallas,. Leeds, Bromberg Johnson, filing To time ance business. Tex., appellee. for 1955 it was of engaged suit in December this stock common the sale of its Judge, HUTCHESON, Chief Before yet public. to It had not undertaken JONES, Circuit and and TUTTLE Judges. any policies. to sell life incorporation of insurance com- right granting panies to their Judge. TUTTLE, Circuit engage in insurance business in judgment appeal an from This is Texas is a function of State Board sitting jury, court, without a trial The Board of Insurance Commissioners. denying appellants in an action relief to charged among others, duty, with the damages injunction for trade and for applicant for to whether the determine Lanham under the mark a license has selected a name seq. for and 15 U.S.C.A. et Act § any similar to other “so alleged competition. unfair likely company as to be to mis- Sears, public.” Appellant Roebuck & Co. is the A from this lead the review rulings appellant Allstate Insurance and all other administrative owner 1927, has, provided used the Texas Company. since the Board is for Sears identify appellants numerous made formal statute.1 name Allstate Commissioners, Code Board of 21.44 of the Insurance Insurance 1. Article company party V.A.T.Í-3., provides follows: at interest dissatisfied or Texas provided failing get “Except Board otherwise after relief where Commissioners, may provisions file a the Insurance of Insurance petition setting under particular company any Code, or other forth the ob- if insurance jection regulation, order, decision, party with rule, to such he dissatisfied at interest rate, ruling, act, rule, act, regulation, order, rate, decision, or administrative them, adopted by ruling Dis- or to either or all administrative later, 1955, pany 31, purchase, after and its protest on October the Board alleged suit, grounds asserting commencement later Company requested ‘to States Life trans- Board Insurance suit, and to ferred all interest Insurance Com- require Life All States appellee, change its some name and mark in Texas to name and select pany infringe upon principal and its con- stockholder also does not name which other majority tracted to the stock sell a and constitute * * company appellee, which also remaining buy bound itself by order relief denied this The Board shares of the stock. reciting dated November meet- an official at the action was taken urged Appellants on the court below ing appeal taken No Board.2 vigorously their insist here that County of Travis Court to the District registered trade marks service ruling from this or to other court protect marks under the Lanham Act3 of the Board. against by appellee the use a life the name All Life Insurance Com- organized under in Alabama pany independently *5 and that .of By Company. Insurance All Life States statute the use name of the year appellant Allstate the the amounts to unfair at com- organized, was Insurance giving law, diversity citizenship mon doing states, and in four was business jurisdiction to the Federal courts to en- by Dis- states and the in thirteen join damages the use and award to do to It was licensed trict of Columbia. past injuries. during part of 1937 Texas findings The trial court made brief July appellee first and 1938. fact and conclusions of law.4 negotiations this com- commenced gave law, Court, State the State a forum County, Texas, of Travis triet Court plaintiffs might go to which the if elsewhere, against the Board of and not desired relief as to the which as defendant. Insurance Commissioners granted been to the defendant and its precedence over shall have Said action assignors by the Insurance Commission- dif- docket all other causes the * * The motion was overruled er. because ferent nature recognize the could Court a State par- reciting the contentions After 2. away Statute which would take from the “Now, there- order concluded: ties the jurisdiction litiga- Court its federal fore, premises considered, Board growing diversity tion out of a citi- jurisdiction without to finds that zenship. requested by complainant grant the relief “The Court has been hereby somewhat sur- request complainant’s de- and prised by fattening the continuous nied.” by parties, especially plain- record c. 22. U.S.C.A. tiffs, keep and has done its best to down, brevity ap- very record but has think not succeeded wo In view of their Forty-two quote propriate well. in full: different witnesses and presented by plain- exhibits have been was filed on This case “The Court: tiffs; exhaustive was re- briefs have and summons been filed December by consisting original both sides on December 7. From briefs executed turned pleadings on, and amendment briefs were filed and various sorts of time plaintiff briefs I by which now hand and the to the defendant Clerk both amendments, papers consisting for inclusion with the and answers the ease. interrogatories, “From this Rules of Pro- exhaustive and somewhat reading, keeping pretty tiresome trial ex- and brief covered and much cedure necessity pleadings. in mind On various Court’s re- these hausted taining applicable that which May 14, Amended Motion Defendant’s involved, May 21, facts, filed, gentlemen, issues find and on as Dismiss was plaintiffs, Sears, Court that Company, Roebuck acted on and that motion grounds mo- the Allstate of that overruled. Company, engaged, and are there was have been en- dismiss tion to gaged, in the use of jurisdiction because the word in this Court “Allstate” following by appellee, Appellants present four forward but shall indicate they say proper disposition questions posed them later. They arguments (1) judgment These two of the trial court. are: require appellee action seeks insur- are: company change name, ance “(1) court err the trial Did. being a matter confided state holding in- All had not States of Texas to the Board of Insurance Com- fringed registered trade- Sears’ unappealed missioners its action adverse mark Allstate ? plea appellants re- cannot be “(2) Did the trial court err litigated here; (2) the Lanham has Act holding in- All had not States regulation efficacy of an fringed registered service Allstate’s in a state whose stat- marked Allstate? regulation (and utes undertake “(3) err in Did the trial court regula- approval of a name is an act of holding had not tion) limiting because of the terms of unfairly competed with Sears the McCarran Act.5 in the use of its name? The first is: Did the “(4) Did the trial court err holding trial err in that All States court excluding im- the evidence infringed registered had not Sears’ trade survey determine partial made to mark Allstate? public anything, what, as- if question must We conclude that this with Allstate?” sociated Strictly negative. answered questions many these will For convenience as a matter of *6 they registered in in the order which answered trade marks of Allstate Although appellants by Sears, do not stated. owned are is clear that as to distinguish clearly proposed all in their policies at times life insurance in con- alleged infringement of nection brief between with which intended to alleged registered marks and the use the name All States Life Insurance by appellee Company un- similarity of acts of commission of there was no present competition, products. these Furthermore, do fair there was questions, separately and appellee. in their issues between Sears and sep- any similarity to treat shall endeavor we Nor was there real be- doing put registered arately. Sears, aside so we shall tween the marks of arguments put two the moment taken as a and of whole, the name upon granted which neither fire insurance as the name for the defendant insurance, company; engaged only accident and life but was nor that it is in the casualty insurance; business, “All- that the name life insurance and is not en- Sears, any way gaged used has been Roe- state” in in the of sale merchan- Company upon multiplicity a of and buck dise. which it sells its various merchandise “I further find as a fact there is through confusion, the northern and central stores no confusion nor reason for portions engaged of southern the United between what the defendant is tires., States, in, plaintiffs such as automobile and what the are in. accessories, gentlemen, and that the busi- a law, automobile “As conclusion of engaged, equity is or in which it ness can see no whatever in favor of plaintiffs engaged, plaintiffs. inequita- are is sense both would It be most ble, in which the defendant is and the chancellor would have both engaged; eyes All States Insur- the defendant and ears and heart closed if it per- Company any is named under the ance find that would relief this case is plaintiffs.” Insurance Commis- of the State mission entitled to the law, who, sioner, has under the State Congress right; of “All States” was 5. “No Act shall be the name construed invalidate, impair, supersede objected; any plaintiffs presented; or by any purpose objection, law enacted State for overruled Commissioner regulating Attorney supported of business of General insurance.” Texas, 1012(b). § 15 U.S.O.A. and “All States” was of State
1Q7 ordinary purchasers. is two classes But appellee.6 sense In the Insur- clear Life these circumstances the name terms “reproduction, relevant a to the determination whether is not ance counterfeit, copy, there real “likelihood” con- imita- or colorable 7 Corporation single or fusion or “Allstate” mistake. Philco word tion” Mfg. Co., Cir., imprinted F. & on an out- B. 7 170 F.2d word “Allstate” certiorari denied map Is 336 U.S. 69 S.Ct. United States.8 line 1102; peculiar Bigelow 93 L.Ed. Brown & imitation in the colorable such a Co., Cir., defi- v. B. Pen 8 191 used? No new B. F.2d 939. in which it is sense For a contained case which this found imitation is Court of colorable nition allegedly infringing simply prohibits It mark was Lanham Act. imi- “but a commerce of a colorable colorable head imitation use sale, plaintiff’s picture with the of- and shoulders of “in connection tation advertising though fering Walker,” sale, which, or Johnnie goods on or in connection imitation was or services used on a different likely (cigars to cause article use merchandise instead which such pur- whiskey) or deceive Scotch a or mistake it was held to be confusion origin question of the source of fact whether or not chasers goods was likelihood of or services.” confusion as origin, source see John Walker that it is if we are to assume Even Cigar Tampa Co., Cir., Sons 5 F.2d prove necessary law under this either 72, 73; after the trial court had then of life the sale determined that there was indeed like- by appellee proposed a or sale use confusion, affirmed, Cir., lihood of we (defined by the statute commerce For F.2d 460. another case in which demonstrate, commerce) or to terstate this Court held that the mere fact that con- to likelihood of reference without fusion, use second was in connection with accused mark or that the (wine, a different article as contrasted counterfeit, copy or color- is in fact jams jellies) does not mat as a imitation, neither of which do able decide, ter of excuse law when requirement that there is still the *7 (Bama) actually copied, the mark is see be one use of which accused name Chappell Cir., Goltsman, 5 186 F.2d “likely or mistake.” to cause confusion is 215, Cir., and see the same case at 5 197 F.2d in which after trial and a find litigants here The fact ing of fact trial court that there not the de is not are confusion, no largely likelihood of of con the likelihood factor as to cisive because articles, of difference we complete dissimilari Nor is the fusion. notwithstanding identity affirmed of sale mark ty articles whose of the products. the names of the two More batteries, tires, used—automobile is over, may appropriate to call atten hand, like one on the accessories given tion to the restrictive effect the other. on life registration certificates of of the several type of rela is the different Neither appellant marks of the Sears because tionship from the sale of results language of the of the statute itself. of small value of merchandise article an 1057(b) provides: Section policy of a and the sale one side registra- differ 1057. insurance on the other—a Certificates of “§ of life * * * like a difference between tion—Issuance and somewhat form. ence outstanding superimposed registered outline, marks appear an such these 6. appear been the have marks not to at the time be in use at valid the time single in block letters. word Allstate trial. 1114(1) (a) (The Lanham § U.S.C.A. 7. 15 point, however, 9. On this see Pure Foods Act). Corp., Cir., Maid Minute F.2d Although expired the word marks show registration “(b) using A certificate the mark Allstate regis- upon principal Company) a mark States Life Insurance provided by chapter ter shall “there is confusion nor reason prima of the va- be lidity facie evidence confusion between what the defendant regis- engaged registration, plaintiffs in and what the mark, ownership in.” trant’s Consistent with our views registrant’s right expressed exclusive above cited cases and in connec- accord with one use the mark in commerce of the best established principles goods appellate procedure, or services tion specified may findings subject certificate, not reverse of fact clearly trial court unless erroneous. conditions stated and limitations supported by added.) This (Emphasis substan- therein.” clearly tial evidence and 1057(b). errone- U.S.C.A. § ous. Considering ques- only the narrow here question The second is: Did the trial tion whether there was holding court err in marks, All States Life not come to Sears’ trade we do infringed question had not were other whether there Allstate’s service competition. mark Allstate? As elements of infringement, question the stat- parties have not discussed in distinguish between uté itself seems to their briefs the circumstance that infringer alleged cases which the registered by service marks product uses mark different with a February were dated several in' on a com- and those which uses it he ap- incorporation months after -peting article, marks as such for the pellee. appear applica- It does that the carry statutory presumptions do not tions for them were filed in March 1952. registrant’s to use of except exclusive seeking No cross-claim filed here a actually goods specified as to the marks, cancellation of the so we treat registration. None each certificate of having vigor them as all the They these, insurance. included registration See infuses into them. related to articles of merchandise. 1057(b), supra. section in the case conclude that Again it is noted that Allstate makes noncompeting products it remains point effort how a out there is of fact whether presumptions of statute inure to confusion, where likelihood even underwriting identity its benefit of life imitation or a colorable is an insurance, spec- since marks both service It noted of names. should be *8 ify they that relate to the underwrit- provision quoted above re Act Lanham ing only. mistake, of automobile insurance It confusion, quires or de that merely “pos would seem from terms of the “likely,” the Act ception be not presumptions itself that none of as found as a the Here trial court the sible.” validity testimony g., hearing mark, the of the e. that and it fact, oral after geographical pre not is in nature or that it conditions consideration long general industry (in has not been too in vailing use to insurance subject prop- protection be the as cluding, doubt, that the fact Sears no erty appellant, arise in a in 1937 or contest no made contention had already registered a user of the same name in connection time had at which doing Assuming, with different service. how- busi mark and was Allstate its ever, entry Texas, that too narrow a construc- of the All that in ness Act, tion of the Lanham think that Ala Life Insurance likely appellant contention Allstate’s here is the Texas scene bama subject confusion, to the same weakness as is fact Sears cause owner, Sears, objection of its later as to the to the en likelihood made had confusion. in which it try other states of. twelve lines give indicate different to as the names consideration first Thus, already from those certified. the Board the action Assuming instance, in Texas twelve there are Texas. Commissioners companies operating under a con surance their appellants are correct and initial dominant finality name of which the or conclusiveness tention that approv are eleven There word is “American.” companies action to the Board’s attaches ing prin- selling insurance whose name, conceded it must be “States”; cipal word is “State” title administra officialstate in the case of an wholly companies regulate duty three unconnected body it is to tive whose “Atlas”; findings “North- four called industry name decisions an “Phoenix”; ; nine “South- respon western” four body of its field such a “Southwestern”; certainly six west” or persuasive rele sibilities seventy The list same “Standard.” shows vant in the determination groups companies Moreover, in which can of insurance court. fact a trial group seriously each or more com- in contains two contended that the not be duty panies at least with names identical or did not have the board pass precise The stat similar as Allstate and States. on this matter. specifically an name of ute stated that the language court Th of the district applicant must not be Standard Accident Insurance Co. “likely public.”10 mislead one Casualty Co., Surety Standard D.C. 119, pertinent S.D.N.Y., 53 F.2d objection After some had been inquiry propriety the use of as to names, and some also made to two other companies similar names of insurance finally approved, the Board as to the one they competition. even when are in direct explanation certified with the said: court that the difference in lines of insurance * * * proved “The defendant and All States Life would insurance commissioners distinguish companies. Appellee forty-three ap- states where it sought to bolster this decision of the plied present under licenses tendering Board in evidence a list granted unanimously companies of insurance that had been notwithstanding plaintiff to do in the state certified granted previously been license relevancy objection Texas. On in each of states. were There materiality of this evidence it was rulings by forty- thus uniform objection ruled out the court. No departments three insurance authenticity made as to its or form. It the two names were so similar brought up by stipulation. We think competition. in unfair result it was both material and relevant. Since rulings In several of the states supports of fact opposi- were made over active holding trial court and the effect plaintiff. tion of the While these merely it should be admitted would be determinations are of course not weight to add to what trial court binding on the court are of did, we shall consider it as evidence. *9 weight they express because Moreover, appellants in their brief re opinion public of- disinterested though fer to it as it were in evidence. duty prevent ficers whose it was to Its relevance lies in the fact that alleged wrong, who, pre- the sumably, clearly discloses in the insurance that familiar were with the great similarity in Texas a in page business.” 53 F.2d at companies the names of different is not long Undoubtedly the Texas Insurance considered a Com- cause of confusion so justified considering companies competing as mission was are not practice long apparently universal same line of insurance or so Code, Art. 2.02.
10. V.A.T.S. Insurance
distinguishing
testimony
industry of
surance
be-
connection. There was some
by differentiating
companies
tween
be-
underwriter
that stock salesmen of the
selling
impliedly
tween
lines of insurance carried.
had at
the stock
least
by
represented
That a determination
such an admin-
con-
was
that
great
appellant.
istrative tribunal
relevance
nected
This was the
weight
given great
representative
in a
should
act of
of an
individual
regulated
independent
industry,
anything
Mu-
also Central
see
contractor and not
tual
In-
Mutual
inherent
The
Auto Ins. Co. Central
itself.
court
the name
apparently
Co.,
sporadic
surance
acts
275 Mich.
N.W.
found
that
chargeable
appellee.
were not
to
given
weight
In addition to the
to be
possibility
certainly
of confusion
exist-
to the determination
Board there
ed,
permissible
but we
believe
support the
was affirmative
to
evidence
rejected
trial court to have
the conten-
finding
no
trial court’s
that
there was
likely.
tion that confusion was
More-
likelihood
as
the source
of confusion
to
over,
proof
was offered
indicate
to
of the insurance
to be sold
any single
that
testified to
transaction
appellee.
undisputed
appel-
that
It was
danger
resulted in
ultimate
loss
prevent
to
lant Allstate
no action
took
appellants.
clear,
of loss to
think it
All
Life Insur-
confusion when
States
supra,
Chappell Goltsman,
as we did in
Company
thir-
ance
of Alabama entered
similarity
of the names even
al-
teen
in which Allstate was
states
appellee’s
with the
inclusion
ready selling its lines of insurance.
together
“Life,”
the word
with the evi-
to
When asked
cross-examination as
trial,
dence introduced on the
would have
sufficient number
whether he received a
finding by
been sufficient to authorize a
him to
to cause
misdirected letters
possibility
per-
the trial
court
complain
protest
the Alabama
or to
haps even of the likelihood of confusion.
corporation,
In-
of Allstate
the Director
quite different, however,
This is
ap-
Company,
called
who was
being justified
reversing
our
the find-
pellant
testify
an-
as
its business
ings
ample
of the trial court made on
nothing'
could
“There
we
swered:
was
evidence, including the actions of the
protest
fault;
them;
not their
Board,
clearly
State Insurance
errone-
(Em-
merely
on.”
we
forwarded
ous. We conclude
error
com-
phasis added.)
stated that
He further
mitted
the trial court in
protested
li-
had never
his
censing
appellant
there was no
corporation in
of the Alabama
Allstate’s service marks.
it had been
states
the various
where
licensed.
question
The third
is: Did the
corpora-
of the Alabama
President
holding
trial court err in
All
States
during
years
all the
testified
tion
Life Insurance
had not unfair
operated
both
Allstate had
it and
when
ly competed with Sears and Allstate in
concurrently
had
states
several
answering
use of
its name.
only
of confusion
occasion
one
been
question we need not answer the thresh
instance
In that
familiar.
he was
old
as to whether the Lanham
appellant
directed
summons
court
a
Act itself
right
created
new federal
erroneously
served
been
of action for
unless
company.
his
conclude
that such a federal
would differ from the
produced
Texas
a number
common-
Appellants
law action
testimony
competition,
for unfair
whose
witnesses
if both
causes
action
the sale
exist
heard
when
effect
remains
Company still
an area in which state
Life
*10
applied
activity
law would be
under the
rule of
they associated
stock
Tompkins,
R. Co.
Erie
v.
appellants.
In
in
304
each
U.S.
minds
their
stance,
preter
58
L.Ed.
they
than
S.Ct.
no more
We
however,
did
interesting
.any
complicated
mit
these
real
there
to whether
as
inquire
question:
questions11
next
fourth
we conclude
We
come to the
because
excluding
on which Did the trial
the
evidence
court err
there was sufficient
impartial
did that
document
an
sur-
find as it
tendered as
the
could
trial court
vey
anything
if
reason
made to
what
or
determine
there was
confusion
public
Ten-
with Allstate.
activities of
associated
confusion between
support
companies
dered in
of its contention
which would
two insurance
likely
competition
appellee’s
satisfy
concept
use
name was
unfair
public
fortiori,
confuse the
source
in-
by appellants.
as to the
A
asserted
by it,
appel-
to be issued
whether
do
consider
not need to
survey
by
ac-
excluded
on
fraudulent
trial court
lants
out a case
made
ground
its own
that it
motion on the
defendants,
con-
tion
hearsay.
Its author testified
unfair com-
he
required
tends is
to establish
telephone
had caused ten interviewers to
petition in Texas.
impartially
telephone
selected
sub-
frequent
spite
confu
scribers each
questions.
a
and ask them series of
or serv
sion in
of trade
the treatment
questions were:
infringement cases and those
ice mark
“(1)
your
involving
What comes to
mind
competition
parties
unfair
say
when
inghouse’
recognize
the brand name
litigation
‘West-
in ad
to this
against
?
right
protection
dition to
or
of their trade
serv
“(2)
What does
brand‘Kodak’
appellants
marks
also have the
ice
you?
mean to
protect
acts
themselves
“(3) What does‘Allstate’mean to
would “un
defendant which the latter
you?
any
fairly” appropriate
itself
“(4)
you
If
wanted
good
belongs
species
will
as a
surance,
go?
you
where would
property
appellants in
the state
“(5)
you
Have
ever heard of All
party is
of Texas.
an accused
Whether
Company?
States Life Insurance
attempting
ap
appropriating
so
“(6)
you say
Who would
owns
success,
propriate,
likelihood of
Compa-
States Life Insurance
complain
property
valuable
ny?”
course,
is,
ant
of fact.
Chappell Goltsman, supra;
course,
survey
John
Of
Walk
if
Cigar
Tampa
Co., supra.
otherwise
er & Sons
admissible was not
excluda
finding by
hearsay merely
ble
trial court
as
“that there
because the 1000
confusion,
persons
confusion,
reason for
interviewed
is no
were not themselves
engaged testifying,
between what the defendant
since it was not intended to
prove
in,
plaintiffs
and what
truth of the
statements made
completely
However,
contention
them.
in”
undercuts
was inadmissible
hearsay
that there
exists
because it was offered to
adequately
prove
supported
say
what
they
if such
ten interviewers
record,
persons questioned.
for if there can
no were told
Appellants
exception
the facts of this case
do
confusion under
then,
take
here to
course,
can be
the refusal of
put
no trad
the trial court to let them
good
ing by appellee
appellants’
will.
“several” of the
interviewers
explain
heretofore
think the facts
outlined stand to
how
conducted the
considering
previous questions
survey. They complain only
of the ac
ruling
the trial
tion of
court’s find
survey
demonstrate
court in
in
ings
supported
adequately
glance
are so
as to admissible. A casual
at the sur
vey
impossible for us to hold
make it
that its
itself
self-serving
shows
to contain
clearly erroneous.
decision was
statements in the summaries which length
561, 571-74,
L.Q.
11. Discussed at some
Comment:
and in the cases and
writings
The Confines of
“Mrie Limited:
State
there cited.
Courts,”
the Federal
Law
Cornell
*11
**
although this
Furthermore,
*.
it
McCarran Act
Suffice
includes.
say
cursory
ground
court
the
the
to
that even
most
on which
was not the
reading
legislative history
rejected
appears
be
it,
it would
the
that
it
ground
irrele-
this enactment makes
clear that
on the
inadmissible
purpose
fairly presenting
name
the
its
counter-
vance,
exclusive
was to
as not
Company until
act
adverse
this
effect
All
Insurance
States Life
asked
Court’s
questions
been
decision
United States
after
two
correctly
properly an-
As-
South-Eastern Underwriters
if
sociation,
Sears,
533,
&
Roebuck
322 U.S.
64 S.Ct.
swered
mind
called to
truly
might
illus-
Company.
L.Ed.
be found
think it
We
per-
regulation
public
to
to have on State
of insur-
thinks
trative of
what
questions
Maryland Casualty
ance.”
propound
party
Co.
mit one
to
fairly
behalf,
Cushing,
412-413,
at-
U.S.
however
chosen on its
given
608, 610,
opportunity
to
S.Ct.
tempted,
of another results of evidence
excluded survey think, should, have been admit- I bearing upon issue. ted given majority re- for reasons opin- my should,
jecting the evidence go weight ad- ion, to its and not to its missibility. respectfully dissent.
Rehearing denied; JONES, Circuit dissenting.
Judge, BOARD,
CIVIL AERONAUTICS Appellant, AERONAUTICS, Inc.,
FRIEDKIN d/b/a Airlines, Pacific Southwest Appellee. BOARD,
CIVIL AERONAUTICS Appellant, AIRLINES, CENTRAL
CALIFORNIA Inc., Appellee.
Nos. Appeals Court of United States Ninth Circuit. Stanley Barnes, Atty. Gen., N. Asst. June Asst, Friedman, Sp. M. Daniel Chief, Atty. Gen., Griffith, Robert L. Wright, Compliance,
Office of John F. Atty., Stone, Compliance M. Franklin Wanner, Counsel, John H. Associate Gen. Ozment, Counsel, Chief, O. D. Liti- Gen. gation Division, L. & Research Robert Park, Atty., Board, Civil Aeronautics Laughlin Waters, Washington, C., E. D. Angeles, Cal., Atty., appel- for U. Los S. lant. Gardiner, Meserve, Mumper T.
Lewis Hughes, Cal., Angeles, Los Aeronautics, Friedkin Inc. Ackerson, Quittner Alfred C. & Stut- Perry man, Angeles, Cal., Taft, Los H. Atherton, Cal., appellee, California Airlines, Central Inc.