9a 'lj'lllPElRA,L REPORTljlR.,!
only from tbe,conditionswhichthe bank has since been shQwn to have beeirih;.L.condititllls\vhich he could not avoid knowing,-but also, president 'and cashier/'Of which this npti,ce, he not have the truth. HIS actIOn settmg these ch cks and otherdl;lpOj!lrts of the 5th of August aside, failing to mingle them with the moneys of the bank, is strong proof that he was aware that the bank was hopelessly insolvent. The testimony of the bank examiners shows that the bank had been hopelessly insolvent for months. The·>'officers were where they could have known, they should have known,' and must have known itsactuM condition. Of this insolvency, however, it is evident that the appellees had no knowled!!e or intimation, for they not only allowed their large deposit to remain in the bank, but sent that;which is in controversy here, whioh,they would not have done if the;r had slightestintinration that the bank was 'in trouble. The, the 1;>ank' til .thus receiving said checks collection ;was such ati'audupon,the, appellees: as gave them tq.eright to demand the return of the ,checks., We do not feel called upon to cite any authoritieS to establish the doctrine that the checks received under'su,ch d,i<l. not· become, the' property of the bank, ·of wIro have, under the Circumstances, the right to recover the same; and the judgment of the lower court is therefore affirmed.
(CIrcuit Court' of Appelils, Third Oircult.February 28,,. 1899.) ,"". ' ; :; ... ',. :,' rf .' ',,".' ";
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A wharf constructed in 1865 was froIlj. .timj:l to time repaired, and In the .fall of 1893 some. of. the old. posts were replaced, ,and all the new posts and ,those that reset wereflj.stened an<tbraced in the wharf. The evidence was uncontradicted that tlle wharf, as: repail'ed, including the mooring posts, was con!>idered by wharf builders and strong. After a storm of unusual violence bad preyaHed. for several days, the river on wbich the wharf was situated became much swollen, and its current very rapid. Two ships mooreq. side by' side at the wharf broke adrift, by the pulling out, under the stress of the wI.nd and tide, of mooring posts to which they fastened, and struck a ship as she lay ·moored in the ;rlver; eaushig the damage sued for. : .HeltZ; that the owners of the wharf were not negligent nor liable for the,injuries,received.
Appeal from. the District Court of the United States for the Eastern 'District " .. John Hampton Barnes 'and .Geo. '.tucker BispWihr; for appellant. John F. Lewis, for appellee.' , '. . BefQre,AOHEs:ON and, DALLAS" Circuit Judges, and BRAD· FORD, Pistrict Judge. '
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l3RADFORD, District, .Judge. This is an appeal from a decree against the Girard Point Storage ODmpany on account of alleged negligence in tIre maintenance and management of a wharf, result·
GIRARD POINT STORAGE CO. V. ROY.
ing in damage to the ship "Norwood." 79 Fed. 113. At the time of the collision hereinafter mentioned, and for a number of years prior thereto, the appellant was the owner of a wharf on the eastern side of the Schuylkill riyer at Point Breeze. On the morning of Monday, May 21, 1894, the Norwood lay moored to a wharf on the western .side of that river nearly opposite Point Breeze. A storm of wind and rain of unusual violence had, with some intermissions, prevailed for several days, and the river was much swollen, and its cur,rent very rapid. About nine or ten o'clock on the same morningthe ships Waterloo and Glenalvon, each about300 feet long and of ne,arly 1,800· tons net registry, which had been moored side by side: a,ttpe appellant's wharf, went adrift by reason of the pulling out and yielding respectively, under the stress of wind and tide, oJ mooring posts to which they had been fastened. The Waterloo thereupon swung across the river and struck the Norwood as she, lay moored, causing the damage. complained of in the libel. The condition of the river and wind was not such, in our opinion, a.sto justify a finding that the damage resulted from an act of God; but to warrant a recovery culpable negligence on the part of the appellant must.. be shown by a preponderance of evidence. The fact that thepot'lts to which the mooring lines of the Waterloo and Glenalvonwel'e fastened failed to hold those vessels, does not of itself es.tablishsuch negligence. The appellant, while: held to a high degl1ee of care, was not· an insurer of the sufficiency of the posts or of the"bracing or other fastening of them in its wharf. Nor has tpe· doctriueofresjpsaloquiturany application to this case. There was nothing unusual in the mooring of the ,Water,loo and Glenalvon side by side at the wharf. Such mooring is a common practice. A charge of negligence clearly cannot be sustained on the ground that it was permitted or occurred on the occasion. in questicHl. The crucial inquiry is whether the appellant was guilty of negligence in permitting,under the circumstances, its wharf to be used for mooring purposes b.y the Waterloo and Glenalvon, lying side by side, the mooring posts not being so firmly fastened. in the wharf al;> to. withstand the strain of the mooring lines. It does not appear that any of the posts were broken by such strain, but that some partially were pulled wholly out of the wharf, and others pulled out and so yielded to the strain as to incline toward the river and allow the lines to drag and slide over their ends. In determining the existence or nonexistence of negligence on the part of the appellant the test to be applied is, not whether the pulling out and yielding of the mooring posts could have been avoided if the appellant had anticipated such an occurrence, but whether, under the circumstances disclosed in the case, it failed to exercise reasonable precaution in not anticipating and providing against that occurrence. Applying this test, was· the appellant guilty of negligence? Its wharf was originally constructed in 1865, and from time to time thereafter was enlarged, renewed and reo paired by wharf builders who, it was reasonable for the appellant to assume, understood their business. It does not appear that at any time before the' storm of May, 1894, any mooring posts in the
appellant's ·wharfhad been pulled, out or ,had yielded through the tension of mooring lines. The evidence fails to disclose anything could reasonably haveicaused the appellant prior to the accident to anticipate, suchan occurrence. The wharf had been extensively repaired in October and November, 1893. In addition to other work, some 01 the old ,posts were replaced with new ones, and others were rHet, and all the new posts and those which were reset were fastened and braced in the wharf. The wharf builders were instructed by the appellant's superintendent to do all that was necessary to make the wharf strong and sufficient for the purposes fol' which it was used. There is uncontradicted evidence of the most positive. and satisfactory character that the wharf as so repaired, including the mooring posts,was considered by wharf build.erscQnstructed in the most approved manner, staunch and strong, and to compare not unfavorably'with other wharves at which large vessels were accustomed to moor. The evidence on the' part of the libelant as to the condition of the wharf is based upon its appearance:after the' accident, and is loose and unsatisfactory. It appears that during the storm and prior to the day of the collision two of the mooring posts were pulled out under the upward strain of the mooring liues. We think it may safely be assumed that it was impracticable then and before the time of the accident to replace ,those posts and re-set and brace the others. The fact that longer posts were subsequently placed in the wharf is immaterial on the question of negligence; We are satisfied under the evidenceadduced that the libel should have been dismissed with costs. Tlle decree below is reversed.
NOONAN v. CHESTER PA.RK A.THLETIC CLUB CO. (Circuit Court of, Appeals, Sixth· Circuit. March 28, 1899.)
AI'PIU.L-TrnE FOR T 4KING' AND PERFECTING.
The allowance of an a.ppelll by the trial court within six monthlJ from the entry of the decree Is sufficient to save the case from the bar of the a,s neither the,filing of the bond nor the issuance of citation withiD. the tiIlJe is jurisdictional.
. Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio. Geocge J. Murray, for appellant. Wood & Boyd; for appelle.e. Before TAFT and LURTON, Oircuit,Judges, and CLARK,Dtstriot Judge. '
PEROtJR!AM. A motion is made to dismiss the 'appeal in this -case on' the ground that it was not taken in time. It appears that theftnaldecree was entered in the circuit court :March 21, 1898.. The apveal on the, 20th of SepteJnber, of the same year. The given, however, until of September, or more