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lections was in disregard of the agreement of the parties or was made with any wrongful intention. It was not reasonable to charge the parties with knowledge that bankruptcy was impending or that some other condition was likely to arise in which it would be necessary to have so careful a record. But we shall not pursue this subject further, because of the graver error into which the referee fell. Nor do we need to settle the rights of the parties upon the footing of mutual credits between banks and their customers. The facts found did not justify the conclusion that there was any preference which was voidable by the trustee, even if it should be found that the payment of the $1,000 operated in the circumstances to effect a preference, as the referee thought it did.
The question whether this was a voidable preference which must be surrendered before the bank can be permitted to prove its claim depends upon the construction and effect of section 57g of the act. Before the amendment of that subdivision and of section 60a and section 60b, there was ground for holding that section 57g made voidable all preferences which were declared such by section 60a. Before the amendment section 57g was not restricted, and so was open to the inference of a wide reference to section 60a for a complement, and that the two provisions by their association would render any payment or transfer a voidable preference which if made in the circumstances mentioned in section 60a, would enable the particular creditor to obtain an advantage over other creditors of the same class. This was so held in Pirie v. Chicago T. & T. Co., 182 U. S. 438, 21 Sup. Ct. 906, 45 L. Ed. 1171, in a cause which arose prior to the amendment. But upon a recognition of the embarrassments which business men might suffer upon that rule of law in the collection of their debts, Congress in 1903, passed the amendment. And the amendment of section 57g makes only those preferences voidable which are made so by section 60b, or by 67e, which latter refers only to conveyances made with intent to defraud creditors or rendered invalid by some statute of the state; and that reference need not be further noticed. Section 60b, thus referred to, makes transfers voidable by the trustee when the creditor has reasonable cause to believe that the debtor intends thereby to create a preference. The nearest approach toward this requirement here is that for two weeks the debtor had been insolvent, and the officers of the bank had reasonable cause to believe the company was insolvent. A man is insolvent, as that term is defined by the fifteenth subdivision of section 1 of the act, whenever the aggregate of his property, exclusive of any property which he may have conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, with intent to defraud, hinder, or delay his creditors, shall not, at a fair valuation, be sufficient in amount to pay his debts. But, to make the reception of payment a preference, the creditor must have had reasonable cause to believe that the debtor was intending to give him a preference over other creditors, and we incline to think, with the Circuit Court of Appeals for the First Circuit (Hardy v. Gray, 144 Fed. 922, 925, 75 C. C. A. 562), that the reasonable implication of the language is that the debtor himself must have intended the preference. The very word signifies the doing of a thing with a purpose to give an advantage; and the construction which treats the motive of the debtor as indifferent seems artificial and awkward. But it is enough to say that a belief that a debtor is insolvent is a very different thing from a belief that he intends a preference; for it would often, and probably generally, happen that a person, though in fact insolvent, would while continuing his business in the usual way make payments without a thought of disparagement of other creditors and with confidence in his ability to pay them all. And upon like considerations the creditor may share in the confidence of his debtor, and may weil suppose that the debtor while paying him his debt in the common course of business is acting without any purpose of giving special favor. Such considerations have often been adverted to by the courts as the basis of decision, and were the principal motive for the amendment of 1903. Grant v. National Bank, 97 U. S. So, 24 L. Ed. 971; Stucky v. Masonic Savings Bank, 108 U. S. 74, 2 Sup. Ct. 219, 27 L. Ed. 640 ; In re Eggert, 102 Fed. 735, 43 C. C. A. 1; Off v. Hakes, 142 Fed. 364, 73 C. C. A. 464; Hardy v. Gray, 144 Fed. 922, 75 C. C. A. 562; J. W. Butler Paper Co. v. Geombel, 143 Fed. 295, 74 C. C. A. 433; Loveland on Bank. (3d Ed.) § 194c.
Moreover, this appropriation of the $1,000 was made pursuant to a stipulation entered into at the time when the last previous loan and assignment of accounts was made. That stipulation was that the assigned accounts should stand as security for the payment of the earlier debt, as well as for the loan then made. The making of that loan was a valid consideration for the assignment of the accounts as security for a pre-existing debt. Peters v. Merchants' & Farmers' Bank, etc., 149 Fed. 373, 79 C. C. A. 193; Jones on Pledges, § 361 (2d Ed.); 1 Brandt on Suretyship and Guaranty (3d Ed.) 26, and note 16; Johnston v. Nichols, 1 Com. B. 250; Boyd v. Moyle, 2 Com. B. 644; Burgess v. Eve, L. R. 13 Eq. 450; Morrell v. Cowan, L. R. 7 Ch. Div. 151; Leask v. Scott, L. R. 2 Ch. Div. 376; Sitgreaves v. Farmers' & Mechanics’ Bank, 49 Pa. St. 359; Buchanan v. International Bank, 78 Ill. 500.
The assignment was an executed agreement, and was not an agreement to be subsequently performed. No facts are found by the referee which impeach the good faith of the assignment. There is no finding that at the time it was made the Martin Company was in contemplation of bankruptcy or was then insolvent. That being so, the right of the bank attached when the agreement was made and would not be displaced by the subsequent bankruptcy of the assignor.
The order complained of in the petition for review must be reversed, with costs, and the original order allowing the complainant's claim as a secured claim will be restored.
(155 Fed. 273.)
HOPPER V. DENVER & R. G. R. CO.*
No. 2,414. 1. DEATH-STATUTES-CONSTRUCTION.
Mills' Ann. St. Colo. $ 1508, creates an action for death negligently caused by a public carrier, and declares that it shall forfeit for every person and passenger so injured or killed not more than $5,000, nor less than $3,000, which may be sued for and recovered: (1) By the husband or wife of deceased; or (2) if there be no husband or wife, or he or she fail to sue within a year after such death, then by the heir or heirs of the deceased, or, if the deceased be a "minor or unmarried," then by the father and mother, or, if either of them be dead, then by the survivor. Held that, if the deceased left a husband or wife, the sole right of action was in such survivor, save that as against children the right would be lost unless asserted within a year; if there was no surviving husband or wife, or the survivor failed to sue within a year, then the sole right would be in the children; and if there was neither surviving husband nor wife nor any children, then only would the right of action be in the father and mother, or the survivor; so that where an unmarried adult female is killed by the negligence of a carrier, and she leaves neither husband, child, nor mother, the right of action is in her surviving father.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Death, $$ 35–46.] 2. SAME-PECUNIARY INJURY.
When decedent, an unmarried female 19 years of age at the time of her death, was two years old, her mother died, and she was taken by plaintiff, her father, to reside with her aunt, with whom she lived until she was 16, when she was sent by him to school to fit herself for teaching. She was sympathetic, ambitious, industrious, of good health, and fond of her father, who paid the expenses incident to her education, and desired to keep house for him, but he, being a farm laborer and traveling machinist, had not married again, and at the time of his daughter's death was 60 years of age. Held, that evidence of these facts, in the light of the natural influence or promptings of filial ties, was sufficient to sustain a finding that there was a reasonable expectation of substantial, though not large, pecuniary benefit to the father from a continuance of the life of the daughter.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Death, $ 20.] 3. CARRIERS-INJURY TO PASSENGERS-DEATH-NEGLIGENCE-PRESUMPTION.
In an action for death of a passenger by the alleged negligence of a carrier's servants, eviden that plaintiff was a passenger, and that her death resulted from an accident to the train, was sufficient to establish a prima facie case of the carrier's negligence.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, $$ 1307– 1314.] In Error to the Circuit Court of the United States for the District of Colorado.
James H. Teller (J. H. McCorkle, on the brief), for plaintiff in error.
Henry A. Dubbs (Thomas H. Devine, J. W. Preston, Joel F. Vaile, C. W. Waterman, and E. N. Clark, on the brief), for defendant in error.
Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District Judge.
VAN DEVANTER, Circuit Judge. This was an action under a statute of Colorado by a father to recover damages of a railroad company for the death of his daughter, alleged to have been caused by
*Rehearing denied September 30, 1907.
the negligence of the company while she was a passenger upon one of its trains. At the conclusion of the plaintiff's case in chief, the court upon the defendant's motion, directed a verdict in its favor, and we are now called upon to consider whether or not that ruling was right.
The statute of the state under which the right of action was asserted is as follows (Gen. St. 1877, $$ 877-879; Mills' Ann. St. 88 1508-1510):
"Sec. 1508. Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskilfulness or criminal intent of any officer, agent, servant or employé, whilst running, conducting or managing any locomotive, car or train of cars, or of any driver of any coach or other public conveyance whilst in charge of the same as a driver, and when any passenger shall die from any injury resulting from or occasioned by any defect or insutficiency in any railroad or any part thereof, or in any locomotive or car, or in any stage coach, or other public conveyance, the corporation, individual or individuals in whose employ any such officer, agent, servant, employé, master, pilot, engineer or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stage coach or other public convey. ance at the time any such injury is received, and resulting from or occasioned by defect or insufficiency above described, shall forfeit and pay for every person and passenger so injured the sum of not exceeding five thousand (5,000) dollars, and not less than three thousand (3,000) dollars, which may be sued for and recovered :
"First-By the husband or wife of deceased, or
“Second-If there be no husband or wife, or he or she fails to sue within one year after such death, then by the heir or heirs of the deceased, or
“Third-If such deceased be a minor or unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor. In suits instituted under this section it shall be competent for the defendant for his defense to show that the defect or insufficiency named in this section was not a negligent defect or insufficiency.
“Sec. 1509. Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the party injured.
“Sec. 1510. All damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in the first section of this act, and in every such action the jury may give sucli damages as they may deem fair and just, not exceeding five thousand (5,000) (dollars), with reference to the necessary injury resulting from such death, to the surviving parties, who may be entitled to sue; and also having regard to the mitigating or aggravating circumstances attending any such wrongful act, neglect or default.”
The words “heir or heirs,” in the second subdivison of section 1508. mean child or children, that is, lineal descendants (Hindry v. Holt, 24 Colo. 464, 51 Pac. 1002, 39 L. R. A. 351, 65 Am. St. Rep. 235); and, though some of the printed statutes of the state make the words "father and mother” in the next subdivision read “father or mother," the first reading is correct (Pierce v. Conners, 20 Colo. 178, 183, 37 Pac. 121, 46 Am. St. Rep. 279).
The evidence disclosed that the deceased was 19 years old, and so was an adult under the laws of Colorado (3 Mills' Ann. St. Rev. Supp. $ 4699); that she was unmarried; and that she left surviving her à father, the plaintiff, but no husband, child, or mother. If, therefore, her death was otherwise one for which the defendant was required to respond in damages, the third subdivision of section 1508, if read literally, gave the father a right of action; but the Circuit Court, being of opinion that the words "minor or unmarried” in that subdivision must be read "minor and unmarried,” held that no right of action was given for the death of an adult leaving no surviving spouse or child; and this was one of the reasons assigned for directing a verdict for the defendant.
As no right to recover damages resulting from death was recognized by the common law, the father's right in this instance, if he had any, must arise entirely from the state statute. Hindry v. Holt, 24 Colo. 464, 51 Pac. 1002, 39 L. R. A. 351, 65 Am. St. Rep. 235; Swift v. Johnson, 71 C. C. A. 619, 138 Fed. 867, 1 L. R. A. (N. S.) 1161. As written, it plainly confers such a right upon him, for not only does it, by the use of the terms “any person," "any passenger," "every person and passenger," and "every such case," manifest a purpose to cover every instance of death caused in the manner specified, and not within the qualification expressed in Atchison, etc., Co. v. Farrow, 6 Colo. 498, whether the deceased be a minor or an adult, married or unmarried, but it in terms gives the right of recovery to the father where, as here, he is the only surviving parent, and the deceased leaves no surviving spouse or child. Thus far there is no conflict, nor any difficulty in applying the statute. But it is said that conflict and difficulty are encountered when the third subdivision of section 1508, respecting the right of the parents, and the two preceding subdivisions, respecting the rights of the surviving husband or wife and the children, are read together, because a minor may die leaving a husband or wife and also parents; and it could have been added that an unmarried person may die leaving children and also parents, as in the case of a widower, widow, or the mother of illegitimate children. See In re Kaufman, 131 N. Y. 620, 30 N. E. 212, 15 L. R. A. 292; Mills' Ann. St. $$ 127, 1533; Mills' Ann. St. Rev. Supp. § 4658; Marshall v. Wabash Ry. Co., 120 Mo. 275, 25 S. W. 179. All of this is undoubtedly true. And it is equally true that, if each subdivision is read literally, they will in the instances supposed give conAlicting rights of action to the surviving spouse and to the parents, or to the children and to the parents, as the case may be, when the statute as a whole makes it plain that there shall be but one right of action and but one recovery in respect of any death; that the right of recovery shall be in the surviving spouse, if there be one, and, if not, then in the children, if there be any; and that it shall be in the parents only where there is neither surviving spouse nor child. To obviate the conflict and difficulty thus presented, the Circuit Court construed the words “minor or unmarried” to mean “minor and unmarried," and this construction is now earnestly pressed upon us by counsel for the defendant. But we cannot give it our approval. It does not entirely avoid the conflict and difficulty which make resort to interpretation necessary, and does not give effect to the controlling purpose and spirit