alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### EAGLE-PICHER MINING & SMELTING CO. v. WALZ, Adm’r.

No. 30270.

Sept. 29, 1942.

Rehearing Denied Dec. 15, 1942.

*131 P. 2d 997.*

W. E. Foster, of Henryetta, A. N. Boatman, of Okmulgee, and A. C. Wallace and John R. Wallace, both of Miami, for plaintiff in error.

Harry D. Pitchford, of Okmulgee, and John T. Cooper, of Wewoka, for defendant in error.

WELCH, C. J.

Plaintiff sought damages for wrongful death. The cause was tried to a jury under proper instructions and without error of law. Verdict was for defendant, and the court sustained motion for new trial after reviewing, and weighing the evidence.

The defendant by this appeal urges error under the rule announced in Kurn et al. v. Cochran et al., 181 Okla. 205, 73 P. 2d 433, and other cases, generally to the effect that it is error for the trial court to grant a new trial in favor of a plaintiff who has failed to prove primary negligence.

We have searched the record to determine whether such rule is applicable here. If the evidence is such that had a verdict in plaintiff’s favor been rendered same must be said to have been unsupported by any evidence, then defendant is correct, otherwise not.

It is plaintiff’s theory that deceased died as a result of the effect of poison gas fumes and dust containing metallic particles, occasioned by defendant’s failure to furnish him a reasonably safe place to work.

The evidence shows that defendant’s cadmium plant in which deceased worked was conducted in such manner as to result in the overflow, sometimes two or three times daily, of a tank containing a mixture of Cotteral or “flue” dust and water and sulphuric acid, thus releasing gases which would necessitate the employees running from the building and remaining outside until such gases became dissipated. We think it might be reasonably inferred that such condition, allowed to continue for several months during the time deceased worked with this tank, was not according to best known methods. The evidence is such as to reasonably indicate that not only could the overflow have been prevented, but that a more nearly adequate system of ventilation could have reasonably been provided.

There is evidence of an expert witness that the gases to which deceased was thus exposed were poisonous and would be capable of causing death, especially after repeated, prolonged, or frequent exposure.

This same witness, an experienced chemist, and another expert witness, a physician, both testifying in answer to hypothetical questions fairly embodying the circumstances of the employment, illness, and death, gave it as their opinion that deceased’s exposure as above shown was the cause of the death.

The evidence was sufficient for submission of the cause to the jury, therefore the rule defendant urges is inapplicable. Affirmed.

*604OSBORN, BAYLESS, GIBSON, HURST, DAVISON, and ARNOLD, JJ., concur. CORN, V. C. J., and RILEY, J., absent.
#### BOWEN AND JONES *v.*PYNE AND HAMMOND.

Special bail — scire facias — averment—satisfaction—pleading.

A scire facias before a recognizance for special bail must set forth every material thing essential to the plaintiff’s right to recover, and therefore must show the debt remains unpaid by the debtor or bail.

But an averment that execution *yet remains to be*made of the judgment, and that the plaintiff has not been satisfied, are cither of them substantially such an averment.

Scire Facias on a recognizance of special bail. The writ states . the recovery of judgment, and avers *that execution thereof remains to be made.*It then sets out the recognizance, conditioned that if the defendant should be condemned in the action, ho should pay the condemnation of the court, or be rendered, or render himself to the custody of the sheriff, or that in case of failure, the recognizors would pay for him, etc. and avers the suing out a ca. sa. the return, *not found,*and assigns for breach that the defendant *has not satisfied the judgment, nor has his body been rendered to the sheriff in execution, thereon.*

The defendants demur generally, which is joined.

*Hammond,*for the demurrant

contends that the writ must show every material matter essential to the plain tiff’s right, and show that the debt remains unpaid. The English precedents followed in this writ are insufficient, because our statute form of recognizance contains a stipulation not known to the English, viz. that in case of the defendant’s failure, *the bail will pay for him;*and from analogy to the English forms under their recognizance, the scire facias here must negative the fact of such payment: (29 *O. L.*61; *Lilly's Ent.*380, 521.)

*603
      *T. Jones*and *Van*Matre, contra,

cite 4 *O. R.*398; 2 *Tidd’s Pr.*1150; *Wils. Prac.*236; *Amer. Prec.*410.

Wrtght, J.

The position is correct, that the writ must show every material thing essential to the plaintiff’s right to recover, and amongst other things aver that the debt remains unpaid, by the bail. If the writ before us does not substantially allege this, the omission is fatal to the plaintiff’s right. It is first averred that execution yet remains to be made upon the judgment. If the principal or bail have in any way paid the judgment, *then execution does not remain to he made of it.*It is secondly averred, that the plaintiff *has not been satisfied, the judgment,*nor Jras the debtor’s body been rendered in execution. Now that the principal or *bail have in any way paid or*otherwise *satisfied the judgment,*is wholly inconsistent with this averment, and does not, therefore, raise a legal presumption in favor of the defendant.

Upon the whole, we think though these averments might have been more technical, they do in substance set forth all the law requires tó confer on the plaintiff the right to recover. Demurrer is overruled. Judgment for the plaintiff.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0186n.06

No. 13-5473

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LORENZO MALONE,

Petitioner-Appellant,

v.

JAMES FORTNER,

Respondent-Appellee.

)

)

)

)

)

)

)

)

)

ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE MIDDLE DISTRICT OF 

TENNESSEE

BEFORE: NORRIS, COLE, and GIBBONS, Circuit Judges.

PER CURIAM. Lorenzo Malone appeals the district court’s judgment denying his 

petition for a writ of habeas corpus filed under 28 U.S.C. § 2254.

A jury found Malone guilty of first-degree felony murder, and the trial court sentenced 

him to life in prison. The Tennessee Court of Criminal Appeals affirmed the trial court’s 

judgment. State v. Malone, No. M2003-02770-CCA-R3-CD, 2005 WL 1521788 (Tenn. Crim. 

App. June 27, 2005). The Tennessee courts denied Malone’s subsequent petition for postconviction relief.

Malone filed a § 2254 petition, asserting numerous claims, including that his trial counsel 

rendered ineffective assistance by failing to object to improper remarks that were made by the 

prosecutor during closing argument. The district court denied Malone’s petition, concluding, 

among other things, that the ineffective-assistance claim lacked merit, was untimely, and was 
No. 13-5473

Malone v. Fortner

- 2 -

procedurally defaulted. The court granted a certificate of appealability for several of Malone’s 

claims, including the ineffective-assistance claim.

On appeal, Malone argues that that the district court erred by denying him relief on his 

ineffective-assistance claim. The respondent argues that Malone’s ineffective-assistance claim is 

procedurally defaulted. We need not address respondent’s contention that the claim is 

procedurally defaulted, however, because the claim is more easily resolved on the merits. See 

Mahdi v. Bagley, 522 F.3d 631, 635 (6th Cir. 2008).

To prevail on an ineffective-assistance claim, a petitioner must demonstrate deficient 

performance by counsel resulting in prejudice. United States v. Wynn, 663 F.3d 847, 851 (6th 

Cir. 2011). To establish prejudice, a petitioner must show that there is a reasonable probability 

that, but for counsel’s error, the result of the proceeding would have been different. Sowell v. 

Anderson, 663 F.3d 783, 795 (6th Cir. 2011).

Regardless of the standard of review that we employ, see Jackson v. Houk, 687 F.3d 723, 

731 (6th Cir. 2012), cert. denied, 133 S. Ct. 1243 (2013), Malone cannot demonstrate the 

requisite prejudice, given the overwhelming evidence of his guilt, including his detailed 

confession and the fact that police found the murder weapon and victim’s belongings at his 

residence.

Accordingly, we affirm the district court’s judgment.
###### Editorial Note on Part 745

#### Editorial Note:

Nomenclature changes to part 745 appear at 84 FR 1608, Feb. 5, 2019.

#### § 745.5 Accounts held by executors or administrators.

Funds of a decedent held in the name of the decedent or in the name of the executor or administrator of the decedent's estate and deposited in one or more accounts shall be insured up to the SMSIA in the aggregate for all such accounts, separately from the individual accounts of the beneficiaries of the estate or of the executor or administrator.

[51 FR 37560, Oct. 23, 1986, as amended at 71 FR 14635, Mar. 23, 2006]
EXHIBIT B

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#### INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, CAMDEN SAFE DEPOSIT AND TRUST COMPANY AND FIRST CAMDEN NATIONAL BANK AND TRUST COMPANY, PLAINTIFFS-RESPONDENTS, v. BOROUGH OF PINE HILL, DEFENDANT-APPELLANT.

Submitted October 27, 1939

Decided January 25, 1940.

*61For the defendant-appellant, *Frank Nelson Jess.*

For the plaintiffs-respondents, Norcross *& Farr (Thomas M. Farr).*

The opinion of the court was delivered by

Bodine, J.

The defendant appeals from a judgment in favor of the plaintiff The First Camden National Bank and Trust Company. It was admitted that the bank had paid to the defendant the sum of $1,000 for which it had recovery, together with interest and costs. The proofs on the motion to strike the complaint and on the motion to strike the answer as insufficient in law reveal the following circumstances.

A taxpajrer of the borough delivered to the then borough solicitor a check for $1,000 on account of taxes then due. The check was drawn on The First Camden National Bank and Trust Company and was deposited by the solicitor in his account in the Camden Safe Deposit and Trust Company upon insufficient endorsement. The borough demanding the money so paid from The First Camden National Bank and Trust Company, that bank secured the same from the bank of deposit through its insurance carrier and credited the borough therewith. It also appeared that the borough in subsequent litigation with its then solicitor secured credit from him for the $1,000 so recovered from the First Camden National Bank and Trust Company. The borough was thus in the position that it had twice received the sum of $1,000 due from its taxpayer — once when the bank satisfied it by the payment of $1,000 paid on an improper endorsement of the taxpayer’s check and, secondly, when credit was given to it in its cross-action against its former solicitor for moneys due.

*62The borough is iu the position of one who has received payment of the same debt from two sources. The First Camden National Bank and Trust Company was clearly entitled to recover the money paid to the borough when the borough obtained credit for the same item due from its borough solicitor. The action for money had and received lay and was sufficiently pleaded under our simplified rules of practice to justify recovery. Since the Indemnity Insurance Company of North America and The Camden Safe Deposit and Trust Company were co-plaintiffs and their cause of action was struck, it is to be assumed that such rights as they may have had in the premises were settled by counsel. At all events, they do not appeal.

The judgment is affirmed, with costs.

*For affirmance*—The Chancellor, Chief Justice, Trenchard, Case, Bodine, Heher, Perskie, Porter, Hetfield, Dear, Wells, WolfsKeil, Rafferty, Hague, JJ. 14.

*For reversal*— None.
§ 354.3 Written agreement. ( a ) No industrial bank may become a subsidiary of a Covered Company unless the Covered Company enters into one or more written agreements with both the Federal Deposit Insurance Corporation (FDIC) and the subsidiary industrial bank, which contain commitments by the Covered Company to comply with each of paragraphs (a)(1) through (8) in § 354.4 and such other written agreements, commitments, or restrictions as the FDIC deems appropriate, including, but not limited to, the provisions of §§ 354.4 and 354.5.
( b ) The FDIC may, at its sole discretion, condition a grant of deposit insurance, issuance of a non-objection to a change in control, or approval of a merger on an individual who is a controlling shareholder of a Covered Company joining as a party to any written agreement required by paragraph (a) of this section.
Just one Web site at the U.S. Department

of Education tells you everything you need

to know about getting federal student aid

to help pay for education after high

school. Before, you had to use different

Web sites for different purposes. Now, just

go to www.studentaid.ed.gov, apply for aid

online, and get all the information you

need from just one place.

You can

● apply for federal student aid for free.

Fill out and transmit the Free Application

for Federal Student Aid (FAFSA), available in English and Spanish. FAFSA on

the Web is easy and faster than the paper version of the FAFSA. As you're filling out the FAFSA, you can access stepby-step instructions to help you complete the form correctly.

● get a PIN (a personal identification number), which you’ll need to sign your

FAFSA electronically, correct any information after you get your FAFSA results,

or access your student aid history

online. If you applied for aid last year,

the Department will mail you a PIN.

● find everything you need to know about

federal student aid programs.

— Access Department publications such

as The Student Guide and Funding Your

Education.

— Get federal school codes for schools

you want to list on the FAFSA.

— Get current student loan interest rates,

learn what to do if your loan is in

trouble, and find out about loan cancellation provisions for teachers.

— Access the National Student Loan Data

System (NSLDS), the Department of

Education’s database for federal student aid. You can use NSLDS to make inquiries about your loans and/or Pell

Grants using your PIN (see above).

— Access College Opportunities On-Line

(COOL), where you can directly link to

more than 9,000 colleges and universities and get information about their

programs, costs, and curricula. You can

also find out whether they participate

in the U.S. Department of Education’s

student aid programs.

Remember, just one address will give you

all this and lots more information:

www.studentaid.ed.gov.
#### MIDDLESWORTH *v.*ROBINSON.

Error — mortgage of personalty — possession—trover—abuse.

When personal property which is running at large lias been mortgaged to secure a debt, the mortgager has property in him, which will enable him to maintain trover against any one using it, in any way inconsistent with his ownership, or destroying it.

Error to the Common Pleas. Robinson brought trover for a hog, and proved on the trial the hog to be his, and that the defendant set on his dog and lulled him.

The defendant proved that some time before the hog was killed, the plaintiff had made a bill of sale of sundry property, including the hog, to one Schofield to secure him a debt of $40, and left the stock near where he stood; after which the hog run at large, and Schofield exercised no acts of ownership over him. Schofield’s debt was paid after the hog was killed, and the bill of sale given. On this state of fact, the court below charged the jury that if the plaintiff had possession of the hog when he was killed he could recover notwithstanding the bill of sale; but if the possession of him was in Schofield from the time of sale until he was killed, the plaintiff could not recover. There was a verdict and judgment for the plaintiff’.

The defendant excepted to the charge and has brought *this writ*of error to reverse the judgment, for the error of the judge in the charge.

*Strait*and Hawes, for the plaintiff in error,

contended, that the case was one of a mortgager of personal property, the possession in the mortgagee,suing for all injury to the property while the debt was unpaid, and cited *15 East. R.*607; 7 *T. R.*9.

*Fox,*contra,

insisted that the defendant had no right to set up an outstanding mortgage upon the hog to avoid his responsibility— as to all other persons than the mortgagee the mortgager’s right of property is complete.

Lank, J.

We do not discover the error of the court below, which injured the plaintiff in error on which he has reason to complain — if that court erred, in our opinion, it erred in *being too*favorable to the plaintiff in error. A mortgager has an interest in the subject of the mortgage which he can protect by suit. The hog was at large, in the actual possession of neither the plaintiff below, nor Schofield; by construction of law, he was in the possession of his owner; and if Robinson was the owner, any use or abuse of him inconsistent with the ownership will enable him to support trover. The judgment is affirmed with costs.
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<TABLE> <S> <C>


<ARTICLE>                     5
<LEGEND>
     THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
     FINANCIAL STATEMENTS FOR THE FISCAL YEAR ENDED MARCH 31, 1998 AND IS
     QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER>                                   1,000
       
<S>                             <C>
<PERIOD-TYPE>                   12-MOS
<FISCAL-YEAR-END>                              MAR-31-1998
<PERIOD-END>                                   MAR-31-1998
<CASH>                                         5,339
<SECURITIES>                                   0
<RECEIVABLES>                                  24,118
<ALLOWANCES>                                   0
<INVENTORY>                                    142,618
<CURRENT-ASSETS>                               179,038
<PP&E>                                         267,978
<DEPRECIATION>                                 124,729
<TOTAL-ASSETS>                                 1,006,804
<CURRENT-LIABILITIES>                          252,698
<BONDS>                                        5,702
<PREFERRED-MANDATORY>                          0
<PREFERRED>                                    0
<COMMON>                                       303
<OTHER-SE>                                     (186,364)
<TOTAL-LIABILITY-AND-EQUITY>                   1,006,804 
<SALES>                                        836,802
<TOTAL-REVENUES>                               836,802
<CGS>                                          467,591
<TOTAL-COSTS>                                  467,591
<OTHER-EXPENSES>                               0
<LOSS-PROVISION>                               0
<INTEREST-EXPENSE>                             39,592
<INCOME-PRETAX>                                (127,269)
<INCOME-TAX>                                   (39,687)
<INCOME-CONTINUING>                            (87,582)
<DISCONTINUED>                                 0
<EXTRAORDINARY>                                (5,805)
<CHANGES>                                      0
<NET-INCOME>                                   (93,387)
<EPS-PRIMARY>                                  (3.12)  
<EPS-DILUTED>                                  0
        


</TABLE>
SCHEDULE 1 

MONTHLY STATEMENTS COVERED IN APPLICATION 

(attached hereto) 

Date 

Submitted 

Monthly 

Period 

Covered 

Requested 

Fees (90%) 

Requested 

Expenses 

(100%) 

Fees Paid Expenses 

Paid 

10% Fee 

Holdback 

Interim Fee Period: April 16, 2021 through August 15, 2022

8/5/22 4/16/22 - 

5/15/22 

$4,500.00 $0.00 $4,500.00 $0.00 $500.00 

8/31/22 5/16/22 - 

6/15/22 

$4,500.00 $0.00 $4,500.00 $0.00 $500.00 

9/26/22 6/16/22 - 

7/15/22 

$4,500.00 $0.00 $4,500.00 $0.00 $500.00 

10/26/22 7/16/22 - 

8/15/22 

$4,500.00 $0.00 $0.00 $0.00 $500.00 

Total $18,000.00 $0.00 $13,500.00 $0.00 $2,000.00 

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#### MIDLAND LAND & IMPROVEMENT CO. v. UNITED STATES

[58 C. Cls. 671; 270 U. S. 251]

Judgment was rendered in favor of the United States in the court below. On appeal the judgment was affirmed, the Supreme Court deciding:

Where a contractor, though not in default, abandons the work and refuses to complete the contract, the Government may relet the unfinished work to another and apply retained percentages toward recoupment of additional expenses so incurred.

Mr. Justice BeaNdeis

delivered the opinion of the Supreme Court March 1, 1926.
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