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verdict for the defendant, and the plaintiff sued out this writ of error. The case is stated by him as follows:
"The defendant operated, in connection with a quarry, a stone-crushing mill. Stones of all sizes were brought from the quarry, and duinped over a cliff. The dump extended some distance along the face of the cliff, forming coves and promontories. At the foot of the dump was a level place upon which twelve or fifteen employés of the defendant broke up stones taken from the dump, and wheeled them to the crushing mill. At various times these stones were thrown or pried from the dump by the men, who cut them up, under the direction of one Tirrell, who was employed by the defendant as a superintendent to keep the men at work, and see that they did not get hurt. Two general methods were employed to get stones fr m the dump. When Tirrell wanted large stones, he sent three or four men with bars to pry the large stones down. When smaller stones were needed, Tirrell formed all the men in a line on top of the dump, and they came down, throwing and bowling such loose stones as they could lift in their hands, over the face of the dump and to the road. During this operation Tirrell watched the men from the road, to keep them steadily at work, and see that they did not get hurt. If there were dangerous places, he cautioned the men, ordered them to another part of the dump, or sent men to especially pry down the rocks that made the place dangerous. The plaintiff went to work July 6th, and was injured July 25th. In the afternoon of July 25th, under the direction of Tirrell, the men were rolling small stones over the face of the dump. Many of these stones accumulated on the dump, a few feet from the road. Tirrell ordered the men to come down, and throw these stones into the road. Half way down the dump, and opposite where Tirrell had been standing for half an hour, watching the men at work on the dump, was a place which had been quarried into some days before in such a way as to leave a large rock overhanging a cave, the entrance to which was seven or eight feet high. At the time of the accident this rock overhung and slanted in such a way that it appeared dangerous. This rock was on a part of the dump which projected between two coves. The plaintiff had never been in this place before. He did not w.rk near it, and it was impossible to see the condition of this rock from above it, where the plaintiff had been at work. When Tirrell ordered the workmen to come down the dump, the plaintiff came down through a c ve, where he could not see this rock, and when within a few feet of the road Tirrell directed him to come around from the cove, and work in a particular place, which he indicated by pointing first at the plaintiff and then at the place where he wished the plaintiff to work. This place was several feet below, and directly under, the overhanging r сk. Tirrell did not warn or call the plaintiff's attention to this rock. The plaintiff came around the corner, and directly under this rock. He did not look above him to see what the character of the dump was, but attempted to go to work immediately, relying upon Tirrell, as was the custom, to warn him of any danger. The plaintiff was being hurried by Tirrell, and intended to begin work at once. Before he had time to pick up a stone, this overhanging rock dropped, and, after falling seren or eight feet, rolled down the dump, and pinned the plaintiff's leg against another rock.
“The plaintiff claims that, even if he had looked to see what sort of a place he was ordered to work in, he came so suddenly into the presence of danger that he did not have an opportunity to avoid the falling rock. The rocks generally lay on the dump as they were thr wn over the cliff. As the men worked in removing these stones, the stones taken out might let down other stones above. This danger was incidental to the business, and was appreciated by the plaintiff. The plaintiff was not injured by a risk of this kind. Nothing was done by the plaintiff or his fellow wirkmen on July 25th, preceding the injury, to undermine the rock which fell. It was some distance above the plaintiff, and fell because it had been undermined and left hanging in such a position that some unnoticed cause, not apparently connected with the plaintiff's work, caused it to fall."
So far as the record before us is concerned, we must assume that Tirrell was superintending within the meaning of the employers' liability act. The plaintiff says that Tirrell was negligent in three respects, namely, that he gave the plaintiff an improper order; that he continued the work under dangerous conditions, and failed to exercise a reasonable supervision; and that he failed to act under circumstances which called for a positive action of a precautionary nature,—that is to say, warning:
The most of these propositions are easily disposed of. The order given was a usual one. The work was dangerous, but it was inherently dangerous, and this fact was apparent to every person of the most ordinary intelligence. The evidence is undoubted that Tirrell was in the habit of giving warnings, and did give the usual warning in connection with the particular order under which the plaintiff was working at the immediate time of his injury. This leaves proposition to be considered except the one to the effect that Tirrell failed to exercise reasonable supervision.
The circumstances of the case are mainly within that common knowledge which, in jury trials, the court is not only entitled to share with the jury, but must so share, and which, in the absence of any marked peculiarities of the plaintiff,—and such the record does not disclose,-he must also be assumed to share. With the rest are the facts that from the nature of the work on this shifting slope of loose ledge rocks the circumstances involving danger were never exactly the same at different points or at different times; that the methods of avoiding danger were, therefore, necessarily never the same; and that both the existence of dangers and the ways of meeting them were best known to the men engaged on the slope, and could not be known with any degree of certainty to one standing below it, where Tirrell properly stood in directing the work. Consequently, from the necessity of the conditions, any supervision which could be given by Tirrell would be faulty, and could not take the place of the care and means which could be availed of by the men immediately on the slope for their own protection.
So far the case is entirely clear. But the plaintiff maintains that the condition which caused his injury was a particularly peculiar one, not common to the work, visible to Tirrell, and not visible to the plaintiff until he was immediately in the locality, and simultaneously with the falling of the stones which struck him. He therefore contends that there was a special reason for peculiar acts of supervision on the part of Tirrell at that particular time. He claims that Tirrell was in a position where he should have perceived that the situation was a very peculiar one; but on this record the jury would not have been justified in finding that the condition was other than would naturally have arisen from the acts of the plaintiff and his fellow workmen in removing stone in the usual way from the slope, or that Tirrell did in fact know, or should have known, that it involved a special hazard, which the men on the slope could not meet more intelligently than he could, in the way they usually met dangers, as we have already explained. Consequently, the jury would not have been sustained in finding that there was any call on Tirrell for any special supervision. As, therefore, it would not have been justified in rendering a verdict for the plaintiff on the record before us, the circuit court properly directed one for the defendant.
The judgment of the circuit court is affirmed, and the defendant in error will recover the costs of appeal.
(113 Fed. 243.)
SWAN & FINCH CO. V, UNITED STATES.
(Circuit Court of Appeals, Second Circuit. January 7, 1902.)
No. 69. CUSTOMS DUTIES-Fish OIL.
Tariff Act 1897, par. 42, places a duty on seal, herring, whale, and other fish oils; and paragraph 568 exempts from duty grease and oils, excepting fish oils, commonly used in soap making, wire drawing, or for stuffing or dressing leather, and which are fit only for such purposes. Held, that oil known as "cod oil,” made from putrid fish livers, which, while used principally for dressing leather, is fit for some other pur. poses not enumerated, and, while not technically known in the trade as a “fish oil,” is subject to the duty; it not being within the exemption, and the phrase "fish oils" not having been employed in a technical
sense. Appeal from the Circuit Court of the United States for the Southern District of New York.
Appeal by the Swan & Finch Company from a judgment affirming a decision of the board of United States general appraisers affirming the classification by the collector of customs as to certain importations made by appellant.
This cause comes here upon appeal from a decision of the United States circuit court, Southern district of New York (109 Fed. 919), affirming a decision of the board of general appraisers which sustained the collector of the port of New York in assessing for duty certain oil extracted from the livers of codfish, and kuown as “cod oil.” The article is made from the unhealthy, putrid livers of codfish, and in this respect differs from cod-liver oil, which is extracted from the fresh livers of such fish.
Wickham Smith, for appellant.
LACOMBE, Circuit Judge (after stating the facts). The collector assessed the article for duty under paragraph 42 of the tariff act of 1897, which reads as follows:
“(42) Seal, herring, whale, and other fish oil, not specially provided for in this act, eight cents per gallon.”
The importers claimed free entry under paragraph 568 of the free list, which reads:
**(568) Grease, and oils (excepting fish oils), such as are commonly used in soap-making or in wire-drawing, or for stuffing or dressing leather, and which are fit only for such uses, and not specifically provided for in this act.”
The record abundantly sustains the contention of the importers that cod oil is commonly used for stuffing or dressing leather. Indeed, but a small fraction of it is used in the arts for any other purposes. But “common use” or “predominant use" is not the only qualification. The oil must also be one "fit only” for the enumerated lises. It matters not that some other article is better fitted and more frequently used for the nonenumerated use, so long as cod oil is fit for such use. The evidence shows that it is fit, inter alia, for the manufacture of blacking, and has been so used to a substantial extent. This fact would remove cod oil from the designation of the main clause in the paragraph; but, if the evidence on that branch of the case were less persuasive than it is, we are still of the opinion that cod oil is not covered by the paragraph, being within the exception. The testimony as to commercial designation is voluminous, the importers undertaking to sustain the proposition that the words "fish oils” had a commercial designation which so restricted the class of articles they covered as to exclude cod oil. The witnesses are not entirely in accord, but the phraseology of the tariff indicates quite plainly the meaning which congress gave to those words, which must be assumed to have the same meaning in both paragraphs of the same act. One of the witnesses for appellant (a dealer in oils) indicated the use of the plırase in common speech:
"Any man who is not in the oil trade will say every oil that is made from the fish would be called 'fish oil,' though commercially different designations are used to distinguish one oil from the other.”
Now, it seems quite clear that congress used the words "fish oils” in the sense in which they are used in common speech. Paragraph 42 provides for “seal, herring, whale, and other fish oil.” Evidently these words are not used with technical precision; for neither the seal nor the whale is a fish, and therefore oil made from them, or from any part of them, is not technically fish oil. Nor are the words used with a close appreciation of commercial distinctions; for, if the evidence in this case be held sufficient to establish the proposition that cod oil is not known to the trade as a “fish oil,” it is equally sufficient to establish the proposition that neither seal oil nor whale oil is fish oil in trade; but congress understood at least whale oil to be a fish oil, and therefore used the phrase “seal, herring, whale and other fish oil."
The decision of the circuit court is affirmed.
(113 Fed. 241.)
Section 27 of the war revenue act of 1898, imposing a tax upon the
gross receipts of refiners of oil and sugar, held constitutional. 2. Same-Tax ON SUGAR REFINERS-GROSS RECEIPTS OF BUSINESS.
Under section 27 of the war revenue act of 1898, which imposes an excise tax "on the gross amount of all receipts" of sugar refiners "in their business” in excess of $250,000 annually, rentals from wharves owned by a c rporation organized for and engaged in the business of sugar refining, and used as a necessary adjunct to said business, are receipts in the business, to be included in computing its gross income
for the purpose of such tax. 3. SAME-INTEREST ON DEPOSITS.
Interest received by such company on corporate funds deposited or invested for the time being, while not in use, is also a part of its re
ceipts in the business, and subject to the tax. 4. SAJE- MODE OF COLLECTION - MONTHLY ASSESSMENTS.
War Revenue Act 1898, $ 27, which provides that every person, company, etc., doing the business of refining petroleum or sugar, or owning a pipe line, whose gross annual receipts exceed $250,000, "shall be subject to pay annually a special excise tax" on the amount of their gross receipts in excess of said sum, and which further provides that a true and accurate return of the amount of gross receipts as aforesaid shall be made and rendered monthly by such persons or companies, requires the payment of such tax annually, and on annual receipts; and a regulation of the commissioner requiring the assessment and collection of the tax monthly, on the monthly returns, is unauthorized.
Gray, Circuit Judge, dissenting in part.
John G. Johnson, for plaintiff in error.
DALLAS, Circuit Judge. The plaintiff below (and here) is a corporation erected under the law of Pennsylvania for the purpose of refining sugar, which will involve the buying of the raw material therefor and selling the manufactured products, and of doing whatever else should be incidental to the said business of refining. The defendant is the collector of internal revenue for the First district of Pennsylvania. The action was brought to recover certain sums of money which he had exacted under section 27 of the war revenue act of 1898, and which the plaintiff had paid under protest. That section is as follows:
“That every person, firm, corporation, or company carrying on or doing the business of retining petroleum, or refining sugar, or owning or controlling any pipe line for transporting oil or other products, whose gross annual receipts exceed $250,000, shall be subject to pay annually a special excise tax equivalent to one quarter of one per centum on the gross amount (f all receipts of such persons, firms, corporations, and companies in their respective business in excess of said sum of $250,000. And a true and accurate return of the amount of gross receipts as aforesaid shall be made and rendered mnthly by each of such associations, corporations, companies, or persons to the collector of the district in which any such association, corporation or company may be located, or in which such person has his place of business.”
The parties agreed upon a special verdict, the material portions of which are set out in the opinion of the court below (109 Fed. 76), and need not be here repeated.
1. The first and most important question raised by the assignment of errors is whether the above section is unconstitutional. This question, however, the learned judge of the circuit court declined