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WOODS, Circuit Judge. Plaintiff, James C. Foster, was injured on November 3, 1916, by a spurt of boiling water while employed as "change man" in "tub house No. 12," used in the manufacture of gun cotton in the munitions plant of defendant, E. I. du Pont de Nemours & Co., at Hopewell, Va. The tub house contained 128 covered wooden tubs in rows; each tub being 6 feet high and 10 feet 6 inches internal diameter. Cotton, after being treated with acid, was several times boiled in these tubs. For the purpose of draining the tubs were provided with a perforated false bottom about 6 inches above the real. bottom, which held the cotton while allowing the water to pass. The water was heated by means of steam pipes resting in the bottom of the tub. For the escape of the water from the tub after each boiling, a hole about 21⁄2 inches in diameter was provided in each tub between the false bottom and the real bottom. During the boiling process this hole was stopped by a tapering wooden plug 10 to 12 inches long, driven in by the plaintiff or other employee with another plug or a short mallet. When the time came to let the hot water escape, the plug was knocked out by the plaintiff or some other employee. From this vent the water flowed through a trough, about 12 inches in depth and width and about 24 inches in length, into a long trough, extending through the tub house, which carried it off.

The evidence tended to show that the plugs were not infrequently forced out by the pressure of the water, and that if they were driven in tight enough to prevent this danger there was great difficulty in knocking them out. When a plug was forced out by the pressure of the water, there was a spurt of hot water from the open hole. While the plaintiff was in the act of driving a plug into the hole of a tub that had been drained, the plug in a tub on the opposite side of the long trough was forced out by the pressure of the water, and the hot water and steam spurted across and injured him.

The plaintiff abandoned his count alleging violation by the defendant of duties imposed on it by the common law, and relied on the alleged failure to comply with the Virginia Factory Act requiring vats to be properly guarded, in that defendant did not provide means to prevent the blowing out of the plugs, and did not so construct the vent trough that the boiling water would not by a sudden spurt injure employees as the plaintiff was injured. The statute provides:

"The owner or person in charge of a factory, shop, or manufacturing establishment where machinery is used, shall provide, in the discretion of the commissioner of labor, belt shifters or other mechanical contrivances for the purpose of throwing on or off belts on pulleys. Whenever practicable, all machinery shall be provided with loose pulleys. All vats, elevators, saws, planers, cogs, gearing, belting, shafting, set screws, shapers and corner machines, shall be properly guarded. Virginia Code 1919, § 1830.

The District Judge instructed the jury to find a verdict for defendant, holding the statutory requirement that vats should be properly guarded does not extend to guarding vents, troughs, or other appurtenances used in filling and emptying vats.

[1] The statute should have a construction broad enough to meet the legislative purpose in view. Obviously one of the chief dangers in the use of vats or tubs frequently filled with hot water or acid and

(289 F.)

then emptied from the bottom through a hole into a tube or trough is that the pressure from above may force the water out with such violence as to strike and injure employees working around the vats. This is a danger immediately incident to the operation of the vat, and is as clearly within the provision of the statute as guarding the vat by cover. Properly guarded means effectively guarded in view of any danger to be anticipated in the operation of the vat. E. I. du Pont de Nemours & Co. v. Brisco (4th Cir.) 254 Fed. 962, 166 C. C. A. 324; American Ice Co. v. Porreca, 213 Fed. 185, 129 C. C. A. 529.

[2] The court, therefore, erred in directing a verdict for the defendant, and in refusing to charge the jury that if they believed that"said hot water, steam, and acid would not have spurted, projected, and been thrown upon the plaintiff, if said vats or tubs had been properly guarded, then the jury must find for the plaintiff and assess his damages as hereinafter directed, unless the jury believe from the evidence that the plaintiff was guilty of contributory negligence."

The defendant had made no effort to construct the short trough by which the vat was emptied, or to control the flow of water through the hole in the vat by a valve or other safe means, so as to prevent such injuries to employees as that suffered by plaintiff. But there was some evidence tending to show that such a construction was not practicable. Therefore the plaintiff was not entitled to an instruction to find a verdict in his favor.

Reversed.

WOODFORD v. COSDEN & CO. (two cases). In re MID-CO PETROLEUM CO. In re MID-CO GASOLINE CO.

(Circuit Court of Appeals, Eighth Circuit. April 19, 1923.)

Nos. 228, 229.

1. Bankruptcy 132, 446-Removal of trustee within discretion of judge. An order removing a trustee is one within the judicial discretion of the judge, and is reviewable only on a clear showing of abuse of discretion.

2. Bankruptcy 439-Abuse of discretion reviewable by petition to revise.

An abuse of discretion is an error of law, reviewable by petition to revise..

Petition to Revise Order of the District Court of the United States for the Eastern District of Oklahoma; Robert L. Williams, Judge.

In the matter of the Mid-Co Petroleum Company and in the matter of the Mid-Co Gasoline Company, bankrupts. Petitions of J. W. Woodford to revise orders of the District Court in each case, opposed by Cosden and Company. Dismissed, with costs taxed to petitioner.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Elmer J. Lundy, of Tulsa, Okl. (Lewis M. Poe, of Tulsa, Okl., on the brief), for petitioner.

James C. Denton, of Tulsa, Okl. (Richard H. Wills, of Claremore, Okl., on the brief), for respondent.

Before KENYON, Circuit Judge, and BOOTH and JOHNSON, District Judges.

KENYON, Circuit Judge. Two cases are here presented. As the questions involved are identical, they are, by agreement, submitted together. Both are petitions to revise the action of the United States District Court of the Eastern District of Oklahoma in removing one J. W. Woodford as trustee in bankruptcy of the Mid-Co Petroleum Company and the Mid-Co Gasoline Company. Woodford was appointed trustee by the creditors in both estates, and was duly confirmed by the referee on August 2, 1922. On August 12, 1922, respondents herein filed petitions for review of the referee's order approving the appointment, and asking the removal of said Woodford as trustee. On the 17th day of August, 1922, the District Court made its order vacating and setting aside in both cases the order of the referee approving the appointment of J. W. Woodford as trustee; said order further providing that he be removed. from the trust as trustee of the estates of said bankrupts.

Many questions are raised of more or less importance, but we think it unnecessary to discuss or decide them, as the solution of one is determinative of the case, and that one relates to the question of discretion in the trial court and abuse thereof. Under the Bankruptcy Law the trustee is appointed by the creditors of the bankrupt estate. Such appointment is subject to be approved or disapproved by the referee or by the judge, but the trustee can be removed by the judge alone. This court in Bollman v. Tobin, 239 Fed. 469, 471, 152 C. C. A. 347, 349, said:

"One of the highest acts of the creditors is the choice of a trustee. That power is clearly committed to them by section 44 of the Bankruptcy Act. Their choice is subject to the approval of the court, but should be approved, unless good cause exists for disapproving."

Undoubtedly this decision expresses sound doctrine, but it is peculiarly within the province of the District Court to keep a controlling hand on the administration of bankrupt estates.

[1] Bankruptcy proceedings are not created for the benefit of the trustee or of attorneys. The prime necessity is to preserve the estate for the benefit of the creditors. A trustee may be able and perfectly honest, and yet the court may be satisfied that it is not for the best interests of the estate that he continue to act. Where the court refuses to approve an appointment of a trustee, or removes him, there must be a clear showing of abuse to warrant the appellate court in interfering. Ordinarily the trial court is in better position to know what is best to do for the welfare of the estate than is an appellate court. The orders made by the court in both of these cases removing the trustee fall within the exercise of judicial discretion, and unless there is abuse of such discretion there is no review in the appellate

(289 F.)

court. Pomeroy Equity Jurisprudence (4th Ed.) vol. 3, § 1086; May v. May, 167 U. S. 310, 17 Sup. Ct. 824, 42 L. Ed. 179; In re Stokes (D. C.) 185 Fed. 994; In re A. & W. Nesbitt, Ltd. (C. C. A.) 282 Fed.. 265; In re Throckmorton et al., 196 Fed. 656, 116 C. C. A. 348; In re Weidenfeld, 254 Fed. 677, 166 C. C. A. 175; Birch v. Steele, 165 Fed. 577, 91 C. C. A. 415; 39 Cyc. 269; Black on Bankruptcy (3d Ed.) § 296.

[2] An abuse of discretion is an error of law and may be reviewed on petition to revise. In re A. & W. Nesbitt (C. C. A.) 282 Fed. 265. This court has held that it is a question of law whether there is substantial evidence to sustain a finding of the trial court, and that such question may be considered upon a petition to revise. Good v. Kane, 211 Fed. 956, 958, 128 C. C. A. 454. Where the trial court refused to remove a trustee this court has reviewed the proceedings. In re Hanson et al. (D. C.) 156 Fed. 717, 718. We see no reason why it does not have the same power to review the proceedings where the court removes the trustee; the question being: Was there error of law by abuse of discretion?

After the original record was filed in both of these cases, petitioner filed an additional record containing the evidence; the same not being in the original records. This additional record was filed more than 30 days after the return date fixed in the order granting leave to file a petition to revise, and after the expiration of the period provided by the rules of this court, and was filed without leave of court. Hence the evidence is not properly before us. However, we have considered the same, and are satisfied that there was no abuse of the court's discretion. There was very substantial evidence to support its orders removing the trustee.

The petition to revise in each of these cases is disailowed and dismissed, with costs taxed to petitioner.

DAVIDSON v. PAYNE, Agent, etc.

(Circuit Court of Appeals, Eighth Circuit. April 23, 1923.)

No. 6148.

1. Evidence 44-Judicial notice taken of resignation of federal agent for railroads.

The court takes judicial notice that John Barton Payne, on March 28, 1921, resigned as Agent designated by the President pursuant to Transportation Act 1920, § 206, against whom suits might be brought on causes of action arising out of the operation of the railroads by the President during the World War.

2. Railroads 52, New, vol. 6A Key-No. Series-Action against federal agent after resignation held improper.

Where suit for injuries in service of Director General of Railroads was brought against defendant after his resignation as Agent designated by the President under Transportation Act 1920, § 206, suit was against the wrong party, and demurrer to the complaint was properly sustained.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.

Action by Benjamin P. Davidson against John Barton Payne, Agent, etc. Judgment for defendant (281 Fed. 544), and plaintiff appeals. Affirmed.

J. H. Brady and Arthur J. Mellott, both of Kansas City, Kan., for appellant.

R. W. Blair, T. M. Lillard, and O. B. Eidson, all of Topeka, Kan., and A. L. Berger, of Kansas City, Kan., for appellee.

Before STONE, Circuit Judge, and TRIEBER and JOHNSON, District Judges.

JOHNSON, District Judge. The appellant in 1918 was in the service of the Director General of Railroads as a repair man in the yards of the Union Pacific Railroad Company at Kansas City, Kan. On the 5th day of December, 1918, while in the performance of his work, appellant was injured, and on the 21st day of April, 1921, he brought this suit in the state court (afterwards remoyed to the court below) for compensation under the provisions of the Workmen's Compensation Act of the state of Kansas (Laws Kan. 1911, c. 218, as amended by Laws Kan. 1913, c. 216).

The defendant demurred to the complaint on two grounds: First, that it did not state facts sufficient to constitute a cause of action; and, second, that the pretended cause of action stated in the complaint was barred by the statute of limitations of the state of Kansas. The court below held that the suit was barred by the statute of limitations, and on the 20th day of April, 1922, entered judgment accordingly. From the judgment, appellant has appealed the case to this court.

[1] It has been suggested, and the court takes judicial notice, that John Barton Payne, on March 28, 1921, resigned as Agent, designated by the President pursuant to section 206 of the Transportation Act of 1920 (41 Stat. p. 461), against whom suits might be brought on causes of action arising out of the operation of the railroads by the President during the World War. He was succeeded by James C. Davis. On January 23, 1923, the defendant, John Barton Payne, filed in this court a motion to dismiss the appeal on the ground that the action had been pending in the court below and in this court for more than 12 months since the date of his resignation as Agent designated by the President for the purposes aforesaid, and that no substitution of his successor has been made in accordance with the act of Congress entitled "An act to prevent the abatement of certain actions" (30 Stat. p. 822 [Comp. St. § 1594]), and in support of the motion cites John Barton Payne, Agent, etc., v. Industrial Board of Illinois, 258 U. S. 613, 42 Sup. Ct. 462, 66 L. Ed. 607, 22 A. L. R. 879; Le Crone v. McAdoo, 253 U. S. 217, 40 Sup. Ct. 510, 64 L. Ed. 869.

[2] The statute and cases cited are not applicable to the situation

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