Page images

9 F.(2d) 26

land out of a larger tract as a rural homestead under the Constitution and laws of Texas. The tract so claimed as exempt included the dwelling and the appurtenances thereto actually and continuously used for homestead purposes by the bankrupt and some of his family since prior to the death of his first wife in 1908; the bankrupt's absences therefrom having been temporary and without any intention to abandon that place as a homestead, he and his minor son by his first marriage having lived in that dwelling up to the date of the bankruptcy adjudication. The claim asserted is challenged on the ground that the bankrupt did not have the right to omit from his homestead a 90-acre tract which was occupied by his second wife, who, with her children by a former husband, for several years after her marriage to the bankrupt, lived with him in the above-mentioned dwelling. The pertinent facts with reference to that 90-acre tract are shown by the following statements contained in the opinion rendered by the District Judge:

"In August, 1917, bankrupt, F. J. Walicek, purchased a 90-acre farm about 3 miles distant from the 200 acres claimed as exempt, and Mrs. Walicek, with three of her children, moved upon the 90-acre farm; the bankrupt helping her to make the move. It was the intention, at the time Mrs. Walicek moved upon the 90-acre farm, for her to make her home there with her children. There was never any separation between F. J. Walicek and his wife; they were on friendly terms, and lived together as man and wife. She made her principal home on the 90-acre farm, and he visited her there, advised with her about the cultivation of the farm, furnished her teams when she needed them, and did some work in the field. These relations existed between the bankrupt and his wife at the date of the filing of the petition in bankruptcy; Mrs Walicek at that time making her home on the 90-acre farm, and Mr. Walicek staying most of the time on the 200-acre farm. Mrs. Walicek would come over to the 200-acre farm and cook bread enough for several days' supply, and at other times Mr. Walicek would go to the 90-acre farm, where his wife made her home, and would eat his meals there. There were no children born to Mr. Walicek by his second wife. In November, 1917, the bankrupt deeded the 90-acre farm to his wife, and the deed from the bankrupt

to his wife was filed for record January 16, 1918, and recorded January 18, 1918, in volume 80, on pages 467, 468, of the Deed Records of De Witt county, Tex. Mrs. Walicek was living on the 90-acre farm at the time the farm was deeded to her, having moved there in August, 1917, and continues to make the 90-acre farm her home to this day." [1] In the absence of fraud upon the wife, the husband has the right to select the homestead, and his selection may be contrary to the wishes of his wife; the only limitation upon his right in this regard being that he cannot exclude the dwelling in which he lives and appurtenances thereto, property indispensable to the home, a part of what is actution of Texas, art. 16, § 50; Revised Civil tually used for homestead purposes. ConstiStatute of Texas 1911, arts. 3794, 3795; Hanes v. Hanes (Tex. Com. App.) 239 S. W. 190; Watkins Land Co. v. Temple (Tex. Civ. App.) 135 S. W. 1063; Hughes v. Hughes (Tex. Civ. App.) 170 S. W. 847. [2] The just stated proposition is not controverted, and it is not claimed that the characteristics of homestead which long prior to the bankruptcy had attached to the larger tract, which included the 200 acres claimed, had been lost by abandonment by a discontinuance of the use of the premises for home purposes, coupled with an intent on the bankrupt's part not to use them again as a home. In re Johnson (C. C. A.) 294 F. 258. The contention in behalf of the petitioner is to the effect that the use made of the above-mentioned 90-acre tract made it property indispensable to the home, or a part thereof, or appurtenant thereto, within the meaning of the above-cited decisions. We do not think that that contention is sustainable. The law does not protect two homesteads for the same family, one for the husband and one for the wife. Holliman v. Smith, 39 Tex. 357; Slavin v. Wheeler, 61 Tex. 654. If the one selected by the husband includes the dwelling in which he and some of his family live, and all property appurtenant thereto and actually used for homestead purposes, it need not include also other property used by the wife as a place of residence, but which the husband never consented to include in the homestead selected by him, or to be substituted therefor in whole or in part.

The petition is denied.

[blocks in formation]

In Error to the District Court of the

ject to the foregoing stipulations and conditions, and to the following stipulations and conditions printed on the back hereof, which are hereby specially referred to and made a part of this policy, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative of this company shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto. Nor shall any privilege or permission affecting this insurance under this policy exist or be claimed by the insured unless so written or attached."

The claim asserted was resisted on the

United States for the Northern District of ground, among others, that at the time of the

Texas; William H. Atwell, Judge.

Action by J. B. Nime against the Fire Association of Philadelphia. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Alex F. Weisberg, Will C. Thompson, and Geo. S. Wright, all of Dallas, Tex. (Thompson, Knight, Baker & Harris, of Dallas, Tex., on the brief), for plaintiff in error. Paul Carrington, of Dallas, Tex. (Etheridge, McCormick & Bromberg, of Dallas, Tex., on the brief), for defendant in error. Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge. This was an action on a policy in the sum of $5,000, insuring against fire a stock of goods. The policy sued on contained the following:

"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.

"Total concurrent insurance permitted, including this policy, $20,000, as follows: $20,000 on stock. It is understood and agreed that no other insurance is permitted, unless the total amount allowed, including this policy, is entered in blank space in paragraph next above.

alleged fire the defendant in error (herein called the plaintiff), had $40,000 of insurance on said stock, including the policy sued on, when only $20,000 of concurrent insurance was permitted by the term of the policy. The evidence showed that at the time of the fire plaintiff had $40,000 insurance on said stock. Over objection duly made the court permitted a witness for the plaintiff to testify to the effect that, several months prior to the fire, he took the policy sued on to the office of the firm which was defendant's local agent at Cisco, Tex., and asked a member of that firm to "make total concurrent on stock $40,000 on that policy," and left the policy there after said member assented to that request. There was other testimony in conflict with that so admitted. The court refused a request of the defendant that the jury be instructed to find in its favor. There was no evidence tending to prove that prior to the fire any officer, agent, or representative of the defendant, other than its local agency at Cisco, had any knowledge or information that plaintiff had more than $20,000 of insurance on said stock.

[1] It is the settled rule in the federal courts that such a condition in a policy of insurance as the above-quoted one as to concurrent insurance is, under the terms of the policy, effective, unless a change or waiver thereof "shall be written upon or attached" to the policy, and that parol proof is not admissible to show acts of waiver of such

"This policy is made and accepted sub- conditions, or a change thereof by an agent or *Rehearing denied January 19, 1926.

[ocr errors][merged small]

PONTIFF v. UNITED STATES. (Circuit Court of Appeals, First Circuit. December 7, 1925.)

agents of the insurer, from whom the policy thereto. Because of the above-mentioned erwithholds authority to effect a change or rors, the judgment is reversed, and the cause waiver otherwise than in the way prescribed. is remanded for a new trial. Northern Assurance Co. v. Grand View Reversed. Building Association, 183 U. S. 308, 22 S. Ct. 133, 46 L. Ed. 213; Penman v. St. Paul Fire & Marine Ins. Co., 216 U. S. 311, 30 S. Ct. 312, 54 L. Ed. 493; Lumber Underwriters v. Rife, 237 U. S. 605, 35 S. Ct. 717, 59 L. Ed. 1140. Under that rule no act or conduct of the insurer's local agent at Cisco, which is not evidenced by writing indorsed on or added to the policy, was effective to change the policy or waive condition thereof. It follows that the court erred in overruling the above mentioned objection to evidence.

No. 1874.

1. Intoxicating liquors 217-Indictment held sufficiently definite as to quantity of liquor transported.

Indictment charging defendant with unlawfully transporting "one case, more or less," of intoxicating liquor, held sufficiently definite in matter of quantity of liquor transported in view of defendant's right, under National Prohibition Act, tit. 2, § 32 (Comp. St. Ann. Supp. 1923, § 101382s), to bill of particulars, if


2. Intoxicating liquors

216-Indictment held

sufficient, without allegation that liquor was fit for beverage purposes.

Indictment charging unlawful transportation of intoxicating liquor held sufficient, without specific allegation that liquor was fit for beverage purposes.

[2] In the absence of a valid change or waiver of the condition of the policy permitting only $20,000 of concurrent insurance, the fact that at the time of the alleged fire plaintiff had $40,000 insurance on his stock made the loss by that fire one for which the defendant had not consented to furnish indemnity to any extent, with the result that plaintiff was not entitled to recover on the policy sued on. The evidence adduced raised no question as to the defendant being estopped to set up a breach of the condition as to concurrent insurance. This case is unlike the one dealt with in New York Life Ins. Co. v. Dumler (C. C. A.) 282 F. 969, in that it appeared in the cited case that the home office of the insurer, after being informed of a breach of a condition in the policy in question, treated the policy as in force by demanding and accepting payment conviction for unlawful transportation or pos

of another premium. So far as appears in the instant case, no act or conduct of the defendant was inconsistent with it claiming the benefit of the provisions of the policy forbidding a change or waiver of its terms otherwise than in the way prescribed.

We do not think that the above-stated rules are rendered inapplicable by the fact that the policy sued on is of a standard form, approved and promulgated under statutory authority by the Texas state insurance commission. There is nothing to indicate that in Texas the above-quoted provisions of the policy have a meaning other than that expressed by the language used. By the use of that language the defendant acquired the substantive contract right not to be bound by an attempted change of the policy or waiver of a condition thereof, unless such change or waiver is made in the manner prescribed in the policy, with the result that such a change or waiver cannot be made by the insurer's local agent verbally consenting

3. Intoxicating liquors 236 (4)-Evidence held insufficient to sustain conviction for aiding and abetting unlawful transportation and possession of intoxicating liquors.

Evidence warranting inference that defendant took his car to beach at night with purpose and intention of taking liquor away, but abandoned his purpose and left his car in possession of officers several hours. before liquor arrived by boat, held insufficient to sustain

session, on theory that he had aided and abetted those unlawfully participating in such acts.

[blocks in formation]


in the federal District Court for Massachu- [3] The government called in support of its setts on an indictment containing two counts. The first count charged that the defendant "unlawfully and knowingly did transport intoxicating liquor containing over one-half of 1 per cent. of alcohol by volume as defined in the Act of Congress of October 28, 1919, commonly known as the National Prohibition Act, to wit, one case, more or less, thereof." The second count in like language charged that he unlawfully and knowingly possessed intoxicating liquor.

The jury returned a general verdict of guilty and the defendant was sentenced to pay a fine of $500.

The errors relied upon are that the court erred in overruling the defendant's motion to quash, in refusing to grant his motion to direct a verdict in his behalf at the close of the government's evidence and at the close of all the evidence, in its refusal to grant certain requests for instructions, in instructions that were given, and in the admission of evidence.

[1] As to the motion to quash, it is objected that the indictment does not definitely state the quantity of intoxicating liquor alleged to have been transported and that it was fit for beverage purposes. We do not regard either of these objections as calling for extended consideration. The defendant was informed by the indictment that he was charged with unlawfully transporting and unlawfully possessing intoxicating liquor, one case, more or less. The exact amount was not material. If the defendant desired greater particularity, the trial court could have directed the government to furnish a bill of particulars, if it . deemed it proper to do so, as pointed out in section 32, tit. 2, of the act in question (Comp. St. Ann. Supp. 1923, § 10138/2s). [2] Neither do we think that it was necessary that the respective counts should contain a specific allegation that the intoxicating liquor was fit for beverage purposes. The indictment informed the defendant that he was charged with the unlawful transportation and possession of intoxicating liquor as defined in the National Prohibition Act. This was sufficient. We recognize that there is some difference of opinion as to this question, but we regard the weight of authority as against the defendant's contention. Massey v. United States (C. C. A.) 281 F. 293; Feinberg v. United States (C. C. A.) 2 F. (2d) 955; Davis v. United States (C. C. A.) 274 F. 928; Hensberg v. United States (C. C. A.) 288 F. 370; Strada v. United States (C. C. A.) 281 F. 143; contra, Brauer v. United States (C. C. A.) 299 F. 10.

case three witnesses-Sullivan, a prohibition agent; Carrier, his chauffeur; and McDonald, a chemist. The government's testimony was that on the night of October 7, 1924, at about 8:15 p. m., Sullivan and Carrier were riding on a road in Fair Haven, called the Sconiticut Neck road, leading from Fair Haven to the end of Sconiticut Neck, off from which a road led to a place called Wigwam Beach; that later that night, while riding on that road in the direction of the end of Sconiticut Neck, and at about half past 9 they saw a car coming from the opposite direction; Sullivan testified that it was a Hudson touring car; Carrier testified that it was a Hudson coach, a closed car; that as they approached this car their lights were out, and the lights of the other car were then extinguished; that when the cars came opposite each other it was seen that the Hudson car contained from two to four men; that the driver of that car, later identified by Carrier as the defendant, inquired as to the whereabouts of another car; that Carrier replied that it was somewhere in the rear, and they were going back to fix it; that, after proceeding some distance on the road towards the end of the Neck, Sullivan and Carrier turned about, and on reaching the branch road to Wigwam Beach turned down it; that beside the road, some 800 yards from the beach, they saw three cars parked; that they there parked their car and proceeded on foot to reconnoiter; that Sullivan testified he saw some 18 or 20 men standing around down by the beach, but Carrier said he saw none at that time; that they then went on foot to the Sconiticut Neck road for assistance, and later, between half past 10 and half past 11, returned with a local officer to the beach, riding down in that officer's car with the lights on; that on arriving at the end of the road near the beach they saw two cars parked there, one a Packard and the other a Hudson touring car; Sullivan testified that he saw the defendant standing by the touring car; Carrier testified that he saw a man approach the car he was in, who came within 3 feet of him, and identified the person as the one he saw in the Hudson coach and that he was the defendant; that as that person passed he turned and went away more or less hurriedly, and was not thereafter seen; that after questioning some of the men Sullivan announced himself as a federal officer, and proceeded to search the cars and the beach for liquor, but found none; that, after searching the beach, he returned to the two cars and found that all

9 F.(2d) 29

the men had gone, including the local officer; that about 2 o'clock in the morning one Santos came ashore in a boat containing cases of liquor; that Santos, with the aid of Sullivan and Carrier, unloaded the liquor from the boat to the beach and carried it up to the top of the bank; that Santos placed one case of liquor in the Packard car and one in the Hudson; that at this time no one was there but Sullivan, Carrier, and Santos; that Santos wished to know why Sullivan and Carrier did not turn their cars around, so as to be able to get away; that he asked where the crowd was, and would not help any further until "we (Sullivan and Carrier) had the crowd there"; that later he got into his boat and pushed off; and that afterwards Sullivan and Carrier put the liquor into some of the cars and took it up to Sconiticut Neck. The remaining witness for the government simply testified as to the contents of the liquor that was put into the cars.

The defendant himself took the stand, and called as witnesses Pickhardt, Halligan, and one Loveland, the latter of whom testified as to the weather on the night of October 7. The testimony of the defendant and of Pickhardt was to the effect that the defendant was not on the Sconiticut Neck road or at Wigwam Beach on the night in question, but was elsewhere; that he owned a Hudson touring car and a Hudson coach; that he had had the Hudson touring car painted and put into a garage for sale; that Halligan on October 7 took the car out of the garage to try it out with a view of purchasing it; that he knew nothing about any boat landing with liquor at Wigwam Beach and had nothing to do about it. Halligan testified that he was at Wigwam Beach on the night in question; that he arrived there about 11 o'clock; that he did not see the defendant, and that he was not there with him; that he had the defendant's Hudson touring car there on the beach, parked near another car; that in going there he was not acting in any way whatever for the defendant; that the defendant did not know he was going down to Wigwam Beach with the car, and while at the beach, between 11 and half past, he saw the Ford automobile, the local officer's car, come to the beach; and that he walked towards it and then went away.

If it be conceded that on the evidence the jury might find that the defendant was seen by Sullivan or Carrier at Wigwam Beach between 11 and half past 11 that night, standing beside the Hudson touring car or approaching the lighted car in which the officers went to the beach at that time, and that he

then went away, it is evident that there was no evidence from which it could be found that he directly participated in the unlawful act of transporting the alcohol across the beach and placing it in the touring car. The case was not submitted to the jury on any such theory, but on the theory that he might be found guilty as a principal on either count, if he aided or abetted those directly participating in the unlawful act of transportation or possession; and the question is whether there was any substantial evidence from which the jury might reasonably find that at 2 o'clock in the morning when the liquor was transported across the beach and placed in the cars, the defendant aided or abetted the unlawful act or acts complained of. There was no evidence, and it apparently is not claimed that there was, from which it could be found that the liquor was brought in and taken across the beach that night in consequence of any prearrangement with or at the request of the defendant, and the question reduces itself to this: Could the defendant be found guilty of aiding and abetting the unlawful act from the fact, taken in connection with the other evidence, that his car was at the beach at 2 o'clock in the morning, when the liquor was transported across the beach and placed in it?

The most that can be reasonably inferred from the evidence is that the defendant may have heard that liquor was to be brought in and landed at the beach that night; that he and the Hudson touring car, which he owned, were there between 11 and 11:30 that night; that he went there with the intention of procuring liquor and taking it away, but that, on learning that officers had come, he left the place and abandoned his purpose; for there is no question that, if he was there between 11 and 11:30, he left the place for good, leaving his car unattended, except by the officers of the law. In order for the jury to have found that he was an aider and abettor in the illegal act of transporting the liquor across the beach at 2 o'clock in the morning, the evidence must have warranted the jury in finding that, although he was not present at the time, the car was left there by him with the purpose and intention of furthering and aiding the accomplishment of that illegal act. Such an inference was not warranted by the evidence. The only reasonable conclusion to be drawn from it was that, when he left the beach, he had abandoned his purpose and left the car subject to the control of the officers, who, the evidence shows, proceeded at once to search the cars and beach. In fact, the evidence discloses that

« PreviousContinue »