*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 297 F. 827. subject-matter active concern in the *2 Graham, City, Butler New York

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, 92 L.Ed. 746. evidence.4 394-396, 68 S.Ct. In light case, Gypsum the of the clear that made it There the Court we may approximate make gradations as merely adopted equity 52(a) the general must sustain a or a follows: We federal practice prevailing in the then special jury some when there is verdict 3 finding of a The a courts. Court said jury might evidence which have be the ‘clearly court, if it be a “is trial lieved, and when a reasonable inference evidence although there is erroneous’ when support from that will the ver evidence reviewing the support the court on dict, regardless of -whether that evidence with the definite entire evidence is left by deposition. is oral case of or the a that mistake and firm conviction findings by an agency, administrative the pointed The out been committed.” Court usual substantially rule is the same as that finding not have judge’s does that a trial jury, in the ease of a findings being jury verdicts derive from dignity which special treated like a verdict.5 Where dignity nor the Constitution judge jury, trial sits the rule findings of some confer on some statutes varies with the of the character evidence: agencies. administrative (a) If he decides a fact issue on written alone, evidence able v. Yellow we as he that United States We think 177, credibility, determine Co., 338, 70 did and so we 338 S.Ct. dis Cab U.S. regard Gypsum finding.6 (b) in Where the evi modify was said

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 179 F.2d 749. 994-996; 992, Co., Morris 126 F .2d S., Cir., 6. Luckenbach S. S. Co. 2 U. v. Henderson, 2 Bank v. Industrial Rian 251; 250, Clark, Cir., 157 F.2d Kind v. 2 ; 975, Cir., Alumi v. F 977 U. S. 131 .2d 46; 36, Coastwise, Cir., 161 F.2d 2 416, Cir., America, 2 148 F.2d num Co. 433; 720, 721; S., 68 F.2d Stokes v. U. 2 v. Cir., Ma Broadcast Music Co. Havana Cir., 82, 85; 144 F.2d Norment v. Stil Corp., 175 F.2d Restaurant 2 drid Cir., well, 132; 2 135 F.2d Oil Pfeifer 77, 80. Bushey, Cir., Ira Trans. Co. v. The S. 2 summary prac- 606, an excellent 129 F.2d For Bowles v. Beatrice 3. Hone, history, Co., 774, 780; Creamery Cir., Ilsen and see tice and its 146 F.2d 10 Practice, Equitable Appellate Life Assur. vol- Soc. United Federal ume, Irelan, Cir., 9 Rules of Civil Procedure v. 123 F.2d Federal Co.) 359, Rev.Ed., 416- (1947 Pub. 464. West 417. 6a. See the Gypsum case. in the Yellow Cab evidence For E. v. 6b. F. Drew of the case, discussion see 679, 684; Flying Corp. F.2d Daitz F.Supp. case, trial States, 5á0 witnesses, unequivocally But those same finding supporting his as to evidence by any other testimony, we without contradiction entirely fact oral issue is witnesses, facts following testified to the only most finding in the

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