Action at law by B. D. Perrin, by his next friend and father, W. R. Perrin, against the D. B. Gore Company. Judgment for plaintiff, and defendant brings error. Reversed.

Augustus Benners and James Rice, both of Birmingham, Ala., for plaintiff in error.

B. M. Allen and Robert N. Bell, both of Birmingham, Ala., for defendant in error.

Before WALKER and BATTS, Circuit Judges, and EVANS, District Judge.

WALKER, Circuit Judge. The writ of error in this case presents for review a judgment in favor of the defendant in error for damages for a personal injury sustained by him while he was in the employment of the plaintiff in error as a blacksmith's helper. The parties will be referred to as they were designated in the trial court, the plaintiff and the defendant, respectively. The count of the complaint which was recovered on attributed the injury complained of to the alleged negligence of one James Bradley, a person in the service or employment of the defendant, who had superintendence intrusted to him, and, while in the exercise of such superintendence, in ordering or requiring the plaintiff to use a certain hammer which was unfit or unsuited for the purpose for which plaintiff was required by Bradley to use it.

The phase of the evidence adduced which was most favorable to the plaintiff was to the following effect: The defendant was engaged in surface work preparatory to mining coal. For the purpose of repair work required it employed one Bradley, a blacksmith, and had at the scene of its operations a forge and some blacksmith tools. The place where the blacksmith equipment was kept and where the blacksmith work was done was called the blacksmith shop, though there was no building there. At the time he was hurt the plaintiff had been working for the defendant about 212 months. For about 2 weeks before he was hurt he was acting as the blacksmith's helper. Before that he was employed in other work on the job. At the time he was hurt he was 18 years old. The handle of a sledge hammer he was using came off, and Bradley told him to hurry up and wedge the sledge hammer back on the handle; that the men had some work pushing in the shop. In Bradley's presence the plaintiff made a wedge by sharpening one end of a piece of steel with a smoothing hammer, placed the wedge in an opening cut in the end of the handle before it had been put back in the hammer, and, while with his left hand he was holding the handle of the sledge hammer to keep it in the position in which it was leaning against a wooden block, hit the wedge with a riveting hammer, which was "round-shaped, oval-faced on both ends, and worked slick." The blow caused the wedge to fly out, and it struck the plaintiff in one of his eyes, causing an injury which resulted in the loss of sight in that eye. Plaintiff had not previously used the riveting hammer. He had seen Bradley using it. There were other hammers on the job; but the only one that could be used, which was at the blacksmith shop

when plaintiff received the order mentioned, was the one which the plaintiff used.

From the circumstances attending the giving of the order it might be inferred that it meant that the plaintiff was to use the riveting hammer in doing the work he was told to do. If the order was a negligent one, it was such because of Bradley's failure to warn the plaintiff of the danger involved and how to avoid it. An employer is not required to warn an employé of a danger which is obvious to a person of ordinary intelligence, unless, through youth, inexperience, or other cause, the employé is incompetent fully to understand and appreciate the danger and how to avoid it. Louisville & Nashville R. Co. v. Boland, 96 Ala. 626, 11 South. 667, 18 L. R. A. 260; Boland v. Louisville & Nashville R. Co., 106 Ala. 641, 18 South. 99; 26 Cyc. 1176. The danger in using the riveting hammer in driving a steel wedge into the end of the sledge hammer handle was that, by reason of the firstmentioned hammer being round or oval-faced on both ends, and worked slick, a heavy blow with it was liable to be a glancing one, that might cause the wedge to fly out, if it had not been made sufficiently fast in the opening prepared for it before the blow was given. We do not think that the danger properly can be regarded as a latent one, or one which a youth 18 years old and of ordinary intelligence would reasonably be expected not fully to appreciate and know how to guard against. A mere child, known to be about to attempt to drive in a steel wedge with such an instrument, might need to be warned of the danger of the attempt without first making the wedge fast enough for it not to be likely to be knocked out by a glancing blow. A normal person, of more maturity and experience, would not reasonably be expected to need such warning. There was no evidence indicating that the plaintiff was physically or mentally immature for one of his age. The presumption is that he was possessed of that degree of intelligence which is common to young men 18 years old, and, in the absence of evidence to the contrary, it is to be presumed that a young man of that age is capable of recognizing and appreciating such an obvious danger as the one above mentioned. The hazard of the attempt as it was made was such an obvious one that the plaintiff's employer was not under a duty to warn him in reference to it. Worthington & Co. v. Goforth, 124 Ala, 656, 26. South. 531; Brammer v. Pettyjohn, 154 Ala. 616, 45 South. 646. The evidence most favorable to the plaintiff showed that the injury complained of was attributable to his negligently exposing himself to an obvious danger. The plaintiff's contributory negligence being available as a defense under the pleadings in the case, it was error to refuse the requested charge against a verdict in his favor.


(Circuit Court of Appeals, Second Circuit. December 11, 1918.)

No. 108.

EVIDENCE 411-PAROL EVIDENCE-WRITING INCOMPLETE ON ITS FACE. A written memorandum, indorsed on a charter party and signed by the parties, that "this charter is hereby canceled by mutual consent," does not exclude parol evidence of the agreement upon which the cancellation was made.

In Error to the District Court of the United States for the Southern District of New York.

Action by the Allied Steamship Corporation against the United States Steamship Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Barber, Watson & Gibboney, of New York City (Stuart G. Gibboney and Geo. M. Burditt, both of New York City, of counsel), for plaintiff

in error.

Frederic H. Cowden, of New York City, for defendant in error. Before WARD, ROGERS, and MANTON, Circuit Judges.

HOUGH, Circuit Judge. The written pleadings contained in the record cast little light on the issues actually tried. By them little more is shown than that from numerous defendants, all in some way connected, or said to have been connected with the steamship Ocama, plaintiff desired to recover $5,000, while defendant United States Steamship Company denied on oath substantially every allegation of the complaint.

The plaintiff's evidence showed that the Allied Company had chartered the Ocama from the Continental Trading Company, and on signing the charter had paid on account of hire $5,000. In this transaction the Continental Company was acting as agent for Ocama's owners. The United States Company did not own the steamer, but seems to have owned the stock of the concern that was the owner; yet it received the $5,000 aforesaid. Thereafter, and before delivery of vessel under said charter party, disputes and differences arose between the parties concerned, whereupon by mutual agreement the charter party was canceled. About the foregoing facts there was substantially no dispute, but a copy of the charter party was put in evidence, bearing the following indorsement: "This charter is hereby canceled by mutual consent"-signed by the Allied and Continental Companies, through admittedly authorized agents. The only fact difference between the parties was that Allied Company gave testimony tending to show that one Morse, the president of United Company, had agreed when the charter party was canceled, to return the aforesaid $5,000 to Allied Company, and this proposition was wholly denied by the defendant. Upon this showing, and at the close of all the evidence, plaintiff's counsel made the following application:

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"I move to amend my complaint to conform with the proof to show that this charter party was rescinded, and that as a part of the said agreement of cancellation by rescission the United States Steamship Company agreed by its president, Charles W. Morse, to return this payment of $5,000."

To this motion no objection was made by defendant, though it dropped out of the case all the other parties and wholly changed the issue.

The motion was granted without exception, and thereupon the United States Company moved "to strike out all the testimony as to the conversation relating to" the agreement of cancellation, because "the writing of the cancellation is complete in itself and parol testimony cannot be given to vary the terms of any agreement."

An exception was taken to the refusal of this motion, and also to the refusal of the court to charge in substance as matter of law that the record owners of the Ocama were (by reason of certain delays of the Allied Company) "entitled to cancel the said charter party and retain the deposit of $5,000."

The Allied Company had a verdict after the court had very plainly put to the jury the issues raised by the motion to amend and to such charge no exception was taken.

On this writ plaintiff in error points out that some of the Allied Company's evidence declared that Morse had said, when the charter party was canceled:

"I give you my word of honor that out of the first cargo, or out of all cargoes I have, this money [i. e., the $5,000] comes back."

Thereupon defendant offered to prove how much freight money the Ocama received on her first trip after the cancellation. This was objected to, and excluded over exception, and is now assigned for error. We find no merit in any of these propositions.

1. The memorandum indorsed upon the charter party merely stated a result; it did not give, nor purport to state, the terms of cancellation. "The mere circumstance that some writing had been made by parties for the better recollection of the terms of their transaction does not of itself make that writing the sole memorial of the transaction, even to the extent covered by the writing." 4 Wigmore, Ev. § 2429. This transaction is very far within the rule thus well stated. 2. The request denied by the court had become wholly immaterial by the radical amendment made after the close of the evidence. It then stood admitted that there had been a cancellation "by mutual consent." That consent plainly included the record owners of the Ocama; but, even if it did not, their possible rights did not in the least affect the question whether the United States Company, by its president, had agreed to return to the Allied Company money which it had actually received.

3. In like manner, if there ever was any merit in the offer to prove how much the United States Company, or its president, got out of the subsequent freights of the Ocama, the point became immaterial, when the issues were changed by amendment unobjected to.

The case then stood as upon an oral pleading, the answer of the defendant below being a general denial. If that defendant then held

that it was only liable to pay out of a special fund, there was ample opportunity to present that issue. It never was presented, either in the original written answer or by motion to amend. Therefore the exception became worthless, whatever may have been its original merit.

Let the judgment be affirmed, with costs.


(Circuit Court of Appeals, Third Circuit. November 20, 1918.)

No. 2386.


50-USE OF MAILS TO DEFRAUD-ELEMENTS OF OFFENSE. On trial of defendants, charged under Criminal Code, § 215 (Comp. St. 1916, § 10385), with using the mails to defraud, an instruction approved that an intention to use the mails when the scheme was formed was not essential, if they were in fact used in its execution.

In Error to the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge.

Criminal prosecution by the United States against Thomas H. Depew and others. Judgment of conviction, and defendants bring error. Affirmed.

R. W. Archbald, of Scranton, Pa., and A. E. Anderson, of Pittsburgh, Pa., for plaintiffs in error.

B. B. McGinnis, of Pittsburgh, Pa., for the United States.

Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges.

PER CURIAM. In the court below the defendants were found not guilty on counts 1, 2, and 5, and guilty on counts 3 and 4, of an indictment. The first four counts charged a scheme to defraud and the use of the mails in execution thereof, and the fifth count charged a conspiracy to commit the offenses charged in the four counts. Judgment having been entered and sentence imposed, the defendants sued out this writ.

The evidence, which covered several days in its production, is not before us, but from the charge of the judge, which is before us, and to the accuracy of whose statement of facts no question is raised, it is clear there was evidence of the existence of a scheme or artifice to defraud sufficient to carry the case to the jury. No charge is made that any testimony on behalf of the government was wrongfully admitted, and the charge itself, the opinion of the court, and the absence of anything indicating injustice, satisfy us that the defendants had a full and fair opportunity of presenting their side of the case to the jury.

The error urged on the present writ relates to the defendants' points, viz. the refusal of the fifth point, and the answer to the seventh. We find no error in that regard. The court in its charge, as to the proof of facts, instructed the jury that the government must establish:

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