above mentioned in the further fact that here an employment contract had been entered into which gave the plaintiff the right to direct the movements of the Rogans, and the plaintiff had assumed the exercise of that right before the accident occurred. Said the court in Employers' Indemnity Co. v. Kelly Coal Co., 149 Ky. 712, 149 S. W. 992, 41 L. R. A. (N. S.) 963: "Speaking generally, the relation may be said to exist whenever the employer retains the right to direct not only what shall be done, but how it shall be done"-citing Wood on Master and Servant, 317, where it is said: "The real test by which to determine whether a person is acting as the servant of another is to ascertain whether, at the time when the injury was inflicted, he was subject to such person's orders and control, and was liable to be discharged by him for disobedience of orders or misconduct."

And although it is generally held in construing Workmen's Compensation Acts that, where an employé sustains an injury from accident on his way to work, before he has reached his employer's premises, the accident will not be said to arise out of or in the course of his employment, yet the decided weight of authority recognizes an exception to that rule in a case where, at the time of the accident, the employé is being transported to or from the work of his employer as a part of the contract of employment. In Sala v. American Sumatra Tobacco Co., 93 Conn. 82, 105 A. 346, employés had been engaged under circumstances practically identical to those under which the Rogans were engaged in the case at bar, and they were on their way to their working place when they sustained injuries which caused their death. Said th court: "Although the decedents, at the time of the accident, had not actually commenced their work upon the tobacco plantation of the defendant company, it is plain that their transportation was a part of the contract of employment with this defendThe relation that then existed between the women and the American Sumatra Tobacco Company was that of master and servant, and not that of carrier and passenger. At the time they were injured they were laborers in the employ of the tobacco company."

ant.

And in Swanson v. Latham, 92 Conn. 87, 101 A. 492, it was held that an injury re

ceived by an employé while riding pursuant to his employment to or from his work in a conveyance furnished by his employer is one which arises in the course of the employment. The court said: "Transportation to and from his work was incidental to his employment; hence the employment continued during the transportation in the same way as during the work." So in Littler v. George A. Fuller Co., 223 N. Y. 369, 119 N. E. 554, the court approved the commission's finding, saying: "The vehicle was provided by the employer for the specific purpose of carrying the workmen to and from the place of the employment and in order to secure their services. The place of injury was brought within the scope of the employment because Littler, when he was injured, was 'on his way from his duty within the precincts of the company.' A similar decision is Lampert v. Siemons, 203 App. Div. 264, 197 N. Y. S. 25.

In Travelers' Ins. Co. v. Wild River Lumber Co. (C. C. A.) 83 F. 977, the application for indemnity insurance represented that the lumber company owned a railroad which it used only for its "own lumbering purposes." It was held that its liability for injuries to commercial travelers, who had come to its premises to take orders for supplying its store, and were being transported over the company's road when the injuries occurred, were within the scope of the company's "own lumbering purposes," within the meaning of the policy, so as to make the insurer liable.

In Dunn v. Trego, 279 Pa. 518, 124 A. 175, the Supreme Court of Pennsylvania, in a case where, owing to a labor shortage at Upland, Pa., laborers were imported from Philadelphia, held that a workman who was engaged to work at Upland was acting in the course of his employment while riding from that place back to Philadelphia, and under the Workmen's Compensation Act (P. L. Pa. 1915, p. 736; Pa. St. 1920, § 21916 et seq.) was entitled to compensation for injuries suffered, on the ground that the transportation was an inducement to enter into the contract of service; the court holding that the employé, when injured, was ""actually engaged in the furtherance of the business of the employer,' within the meaning of the Compensation Law."

The judgment is reversed, and the cause is remanded for further proceedings.

UNITED STATES et al. v. CONKLIN.

Circuit Court of Appeals, Ninth Circuit. June 18, 1928.

No. 5412.

Army and navy 512-Amendment of War Risk Insurance Act as to beneficiary became part of insurance contract, under its terms and the resolutions, so that divorced wife could take under restored lapsed insurance (Comp. St. § 514uuu, 514vv (9).

Amendment of War Risk Insurance Act by Act Aug. 9, 1921, §§ 23, 27 (Comp. St. 88

514uuu, 514vv (9), authorizing and directing restoring in certain cases of policy which insured allowed to lapse for nonpayment of dues, and which was not reinstated during his life, and directing the bureau to pay the insurance to the beneficiary, and providing that the payments should be made to the designated beneficiary at the time of maturity of the insurance, where she was, at the time of designation by insured, within the permitted class of beneficiaries, though her status has been changed, though not in terms retroactive, became part of contract of insurance by virtue of provision of the contract that it was made subject to all amend ments of the act of 1917 (Comp. St. § 514 et seq.), and all regulations then in force or thereafter adopted, so that insured's wife, being designated as beneficiary, though afterwards divorced, was entitled to the insurance, there having been no change in designation of bene

ficiary.

Appeal from the District Court of the United States for the Southern Division of the Northern District of California; Adolphus F. St. Sure, Judge.

Suit by Lottie C. Conklin, administratrix of George Heizman, deceased, against the United States and Sadie Mae Deavenport, formerly and sometimes known as Sadie Mae Moore, Sadie Mae Heizman, and Sadie Mae Davenport. From a decree for plaintiff (21 F.[2d] 141), defendants appeal. Reversed, with directions.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., and Lawrence A. Lawlor, U.. S. Veterans' Bureau, of Washington, D. C. (James O'C. Roberts, Acting Gen. Counsel, U. S. Veterans' Bureau, and James T. Brady, Atty. U. S. Veterans' Bureau, both of Washington, D. C., of counsel), for the United States.

Kenneth C. Gillis and Gillis & Edwards, both of Oakland, Cal., for appellant Deavenport.

Alvin Gerlack, of San Francisco, Cal., for appellee.

RUDKIN, Circuit Judge. George Heizman enlisted in the United States Army May 5, 1918, and on the following day applied for war risk insurance in the sum of $10,000. July 16, 1918, his wife, Sadie Mae Heizman, was designated as beneficiary under the policy. The premium due November 1, 1919, was not paid, and the policy lapsed one month later. October 7, 1920, the Heizmans were divorced by decree of the district court of Montgomery county, Kansas, at the suit of the wife, and on November 2, 1920, George Heizman died. The government states in its brief that the insurance lapsed and was not in force at the time of the death of the insured, nor until restored under section 27 of the Act of August 9, 1921, 42 Stat. 156, which contains the following proviso:

"That where any soldier has heretofore allowed his insurance to lapse, while suffering from wounds or diseases suffered or contracted in line of service, and was at the time he allowed his said policy to lapse entitled to compensation on account thereof in a sum equal to or in excess of the amount due from him in premiums on his said insurance, and has since died from said wounds or diseases without collecting or making claim for said compensation, or being allowed to reinstate his said policy on account of his physical condition, then and in that event said policy shall not be considered as lapsed, and the Veterans' Bureau is hereby authorized and directed to pay to the beneficiaries of said soldier under said policy the amount of said insurance less the premiums and interest thereon at 5 per centum per annum compounded annually in installments as provided by law." Comp. St. § 514vv(9).

Counsel for the plaintiff below insists that this statement on the part of the government is not supported by the record, and this is in a large measure true; but the complaint averred that the insurance lapsed on the 1st day of December, 1919, for failure to pay the premium due November 1, 1919, and that the policy was reinstated October 13, 1920, and the answer admitted that the policy lapsed as alleged in the complaint, but denied the reinstatement. No competent proof was offered in support of the allegation that the policy was reinstated, so that, by virtue of the admissions contained in the if the policy was in force at all, it was only answer and in the brief filed by the government.

p. 254. Because of this opinion there was inserted in the amendment of August 9, 1921, supra, subsection 402 (a), providing:

"Where a beneficiary at the time of designation by the insured is within the permitted class of beneficiaries and is the designated beneficiary at the time of the maturity of the insurance because of the death of the insured, such beneficiary shall be deemed to be within the permitted class even though the status of such beneficiary shall have been changed." Comp. St. § 514uuu (a).

Relying on this provision, the Veterans' Bureau paid the insurance as the installments became due to the former wife of the deceased soldier. The present suit was instituted by a sister of the deceased, claiming that she, and not the divorced wife, was the rightful beneficiary under the policy. From a decree in favor of the sister, the United States and the divorced wife have appealed.

The policy, or certificate of insurance, does not appear in the record; but it is conceded that it contained the usual provision that the contract of insurance was made up of and subject in all respects to the provisions of the Act of October 6, 1917, and all amendments thereto (Comp. St. § 514 et seq.) and all regulations then in force or thereafter to be adopted. The appellee likewise concedes that Congress had power to remove the disability incurred by the wife, through obtaining the divorce, if it saw fit to do so; but it is earnestly insisted that the amendment removing the disability has no application to the present case, because the insured died before the enactment of the amendment, and the amendment was not in terms made retroactive. The government, on the other hand, contends that the amendment became a part of the contract of insurance by virtue of the regulations and the terms of the contract itself, whether the amendment was made retroactive or not, and such is the view of the Bureau, charged with the administration and execution of the law. Section 13 of the Act of December 24, 1919, 41 Stat. 375 (Comp. St. § 514uuu34), enlarging the class of permitted beneficiaries, so as to include uncles and others, has been before the courts for construction on a number of occasions, and it has been uniformly held that that amendment applied where the insured died prior to its enactment. Cassarello v. United States (D. C.) 271 F. 486; same case (C. C. A.) 279 F. 396; Gilman Heirs v. United States (D. C.) 290 F. 614; Helmholz v. Horst (C. C. A.) 294 F. 417; White v. United States, 270 U. S. 175, 46 S. Ct. 274, 70 L. Ed. 530. It is true the

amendment involved in these cases provided in terms that it should be effective as of October 6, 1917, but the several courts seem to have attributed no particular importance to that fact. All of the decisions seem to be based upon the broad ground that the amendment became a part of the contract of insurance by virtue of the regulations and the terms of the contract. Thus, in White v. United States, supra, after quoting the terms of the contract, Mr. Justice Holmes said:

"These words must be taken to embrace changes in the law no less than changes in the regulations. The form was established by the Director with the approval of the Secretary of the Treasury and on the authority of article 1, § 1 [Comp. St. § 514a], and article 4, § 402, of the act [Comp. St. § 514uuu], which, we have no doubt, authorized it. The language is very broad and does not need precise discussion when the nature of the plan is remembered."

Indeed, it would seem to be the purpose of the regulations to make future legislation a part of the contract of insurance, whether Congress made such legislation retroactive or not.

Our attention has been directed to two other sections of the act of 1921, which are made effective as of October 6, 1917, and it is argued from this that, if Congress intended the provision removing the disqualification of certain beneficiaries to be retroactive, it would have so provided. But there was a special reason for making at least one of the other provisions retroactive, because the section conferred benefits upon the soldier or his dependents from a date earlier than the date of the passage of the act, and there was a necessity for making the provision retroactive in some form to accomplish that result. Speaking generally, there would seem to be objection to making a provision, changing beneficiaries after the maturity of the policy, retroactive, because it would give to the newly designated beneficiary at least color of right to claim payments lawfully made to another.

In the case now before the court, the policy lapsed for nonpayment of premiums nearly a year before the death of the insured and was not reinstated during his lifetime. But, notwithstanding the policy had thus lapsed, by section 27 of the act of 1921, the Veterans' Bureau was authorized and directed to pay the insurance to the beneficiary in certain specified cases, and another section of the same act provided that the payments should be made to the designated beneficiary at the time of the maturity of the

that only the half contributed by Mrs. Bradley, of which she received the income during her life, was subject to the tax, and entered judgment for the plaintiff in the sum of $38,405.13, and this writ of error was prosecuted. The War Revenue Act of 1918, c. 18, in section 401 (Comp. St. § 633634b), imposed a tax "upon the transfer of the net estate of every decedent dying after the passage of this act," and further provided:

"Sec. 402. That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real and personal, tangible or intangible, wherever situated.

"(c) To the extent of any interest therewith respect to which he has at intended

in any time created a trust to take effect in possession or enjoyment at or after his death (whether such trust is made or created before or after the passage of this act), except in case of a bona fide sale for a fair consideration in money or money's worth." Comp. St. g 63363⁄4c(c).

As we understand the facts disclosed in the declaration of trust they amount to this: That one-half of the income of the trust property was to be paid to the three daughters or their issue, during Mrs. Bradley's life, and was thereafter to be paid to them, unless they failed to outlive Mrs. Bradley, in which case it was to go to her for life and then to others. It is the contention of the government that Mrs. Bradley, upon the making of the declaration of trust, did not part with the possession or enjoyment of this one-half interest in the property contributed by her, and of which the daughters and their issue were to have the income; that she retained a reversionary interest, that was not to pass until her death, and that in fact did not pass until her death. But we think that, upon making the trust deed, Mrs. Bradley parted with the possession and enjoyment of this half of the property contributed by her to the trust, and that she was to have no reversionary interest in this half unless the daughters and their issue failed to survive her, or (what is the same thing) unless she survived the daughters and their issue, which she did not do. Having died first, no reversionary interest ever arose in her favor. Her death did not pass the right to the possession and enjoyment of the half of the property and income here in question from her to the daughters and their issue. That right passed to them at once by the declaration of trust, subject to defeasance in case

they failed to survive Mrs. Bradley. Her death, however, before that of her daughters, foreclosed the possibility of a reversionary interest arising in her favor. In other words, her death did not effect the transfer of the possession and enjoyment of the property and income to the daughters from and after that time, but, having occurred during the lifetime of the daughters, it foreclosed the possibility of her acquiring a reversionary interest in this half of the property.

The judgment of the District Court is affirmed.

CROISSANT v. ADAMS et al. Circuit Court of Appeals, Seventh Circuit. June 13, 1928.

No. 3988.

1. Injunction 136(2)—Holder of certificates in syndicate held entitled to injunction pendente lite to preserve assets in hands of trustees pending suit for refund of subscriptions.

Shareholder, suing as one of class of holders of certificates in syndicate, held entitled to injunction pendente lite to preserve assets in hands of trustee and former trustees of syndicate, pending suit to recover subscriptions paid in accordance with alleged agreement providing for return of subscriptions in event land was not purchased by certain date.

2. Courts 405 (3)-Appeal does not lie to Circuit Court of Appeals from refusal to remove attorneys appearing for codefendant because they formerly acted for defendant (28 USCA § 227).

Under 28 USCA § 227, appeal does not lie to Circuit Court of Appeals from refusal of motion on behalf of defendant to remove certain attorneys appearing in action for codefendant in matters important in suit.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Suit by Frank E. Adams against G. Frank Croissant and others. From an interlocutory order restraining defendant Croissant and others from disposing of funds held by them, and from a denial of a motion on behalf of said defendant to remove certain attorneys appearing for other defendants, said defendant appeals. Affirmed.

Joseph R. Roach, of Chicago, Ill., for appellant.

Robert N. Golding, of Chicago, Ill., for appellees.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

ALSCHULER, Circuit Judge. Croissant appeals from an interlocutory order of