Virginia (Acts 1915, c. 9, as amended by Acts, 1915 [Ex. Sess.] c. 1) in force when the accident happened. This act, which otherwise would bar the suit, excepts from its provision "casual employment," and plaintiff can therefore maintain his action if he was engaged in "casual employment" at the time he got hurt. The facts in that regard appear to be these: Plaintiff was about 27 years old when he received the injuries for which he sues. His previous employment had been mainly with telephone companies, and he was an experienced, if not expert, telephone lineman. For a while before the accident he was out of work and looking for something to do. His father, James W. Hickman, an inspector for the defendant company, had been directed to repair its clock circuit in the city of Parkersburg, a job of brief duration and costing only a small sum. Under authority to get a lineman to help him, he hired his son, the plaintiff, for "not over five days," and they began the work. On the morning of the fourth day, a telegraph pole, which plaintiff had climbed to string a wire, broke down under his weight and he was thrown to the ground and severely injured. Was his employment "casual"? The English Compensation Act, which some of our states have closely followed, excepts "a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business." Construing this act, the English courts have held that the kind of work done by the employeè, rather than duration of service, is the determining factor. If the work pertain to the business of the employer and be within the scope of its purpose, the employment is not "of a casual nature," although the hiring be only for a short period of time. The Connecticut statute (Pub. Acts 1913, c. 138) is practically the same as the English, and accordingly the Supreme Court of that state has held (Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328, L. R. A. 1916E, 506) that the nature of the employment was measured, not by tenure of service, but "by the character of the work." The New Jersey statute likewise exempts those "whose employment is of casual nature." But the West Virginia act, in defining exceptions, uses the terms "casual employment" and "person casually employed." The equivalent exemption of persons "whose employment is but casual" appears in the Compensation Laws of Massachusetts (prior to the amendment of 1914 [St. 1911, c. 751, as amended by St. 1912, c. 571]), Illinois (Laws 1911, p. 315, as amended by Laws 1913, p. 335), Michigan (Pub. Acts [Ex. Sess.] 1912, No. 10), and Minnesota (Gen. St. 1913, §§ 8195--8230). This noticeable departure from the language of the English statute indicates a legislative intent to broaden the exception and place it on a different basis. Its apparent effect is to make exemption depend, not on the nature of the work performed, but on the nature of the contract of employment. If the hiring be incidental or occasional, for a limited and temporary purpose, though within the scope of the master's business, the employment is "casual," and covered by the exception. And so it has been held by the courts of states whose Compensation Acts have substituted "casual employment," or words of the same import, for the "employment of a casual nature," found in the English statute. In re Gaynor, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363; In re Cheevers, 219 Mass. 244, 106 N. E. 861; Aurora Brewing Co. v. Industrial Board, 277 Ill. 142, 115 N. E. 207; Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 Pac. 3031. Thus, in the Gaynor Case, supra, in which the subject is discussed at length, the court says that "casual" is the antonym of "regular," "systematic," "periodic," and "certain." These decisions, and the convincing reasons on which they rest, warrant the conclusion that plaintiff was engaged in "casual employment" when the accident occurred. This conclusion finds further support in the so-called insurance feature of the West Virginia statute, under which a compensation fund is created. The premiums which make up this fund are paid by the employers on the basis of their monthly pay rolls, which are certified to the treasurer of the state, and they are authorized to deduct each month from the pay of their employees, excepting persons casually employed, 10 per cent. of the premium paid for that month. But it does not appear, and we do not understand it to be claimed, that Hickman was on defendant's pay roll for the month in which he was injured, or that any deduction from his pay for a few days' service was made or contemplated. In short, taking all the circumstances into account, it seems but reasonable to hold that plaintiff's employment was "casual" within the meaning of the West Virginia act. Certainly, as we think, the defendant was entitled to no more than the submission of the question to the jury, as was done, and their finding on that issue must be accepted as conclusive. [2] The defenses of contributory negligence and assumption of risk may be disposed of without extended comment. There was testimony from which the jury might find that the pole which broke appeared to be in sound condition; that plaintiff looked at it before ascending, and observed nothing to suggest that it could not be climbed with safety; that it broke below the surface of the ground, where it was rotten and decayed; that discovery of this subsurface condition required the use of certain tools with which plaintiff had not been provided; that proper inspection would have disclosed the defect; that defendant employed inspectors and had some system of inspection of its clock circuit, but had not inspected the pole in question for at least a number of years; that it was necessary for plaintiff to climb this pole in doing the work for which he was hired; and that he was acting with reasonable care and prudence when the accident happened. This was sufficient, in our judgment, to take the case to the jury, and the refusal of the court to direct a verdict for defendant, on the grounds here referred to, is sustained by numerous authorities. Western Union Tel. Co. v. Tracy, 114 Fed. 282, 52 C. C. A. 168; Britton v. Telephone Co., 131 Fed. 844, 65 C. C. A. 598; Munroe v. Levy & Co., 156 Fed. 468, 84 C. C. A. 278; Jackson Fibre Co. v. Meadows, 159 Fed. 110, 86 C. C. A. 300; Bush v. Cin. Trac. Co., 192 Fed. 241, 112 C. C. A. 499; Heckert v. Central D. & P. T. Co., 218 Fed. 29, 134 C. C. A. 43; Perry v. Electric Ry. Co., 72 W. Va. 282, 78 S. E. 692, L. R. A. 1916D, 962; Corby v. Telephone Co., 231 Mo. 417, 132 S. W. 712; Hulse v. Home Telephone Co., 164 Mo. App. 126, 147 S. W. 1124; McGuire v. Bell Telephone Co., 167 N. Y. 208, 60 N. E. 433, 52 L. R. A. 437; Southern Bell Tel. Co. v. Clements, 98 Va. 1, 34 S. E. 951. We have carefully examined the various assignments of error which are based upon instructions to the jury, both those given and those refused, but find none of them of sufficient merit to require discussion. Taking the charge as a whole, the case was fairly and correctly submitted, and no sufficient reason appears for disturbing the judgment. Affirmed. UNITED STATES CIRCUIT COURT OF APPEALS. THE EMILIA S. DE PEREZ. (No. 3129.)* 1. SHIPPING-STEVEDORES-TACKLE-DUTY OF VESSEL. Where a vessel furnished the tackle for use by stevedores, it owed a duty to the stevedores to use reasonable care to see that the tackle was fit for use, and the furnishing of tackle with defects which a reasonable inspection would have disclosed is negligence. (For other cases, see Shipping, Dec. Dig. § 84[3].) 2. SHIPPING-STEVEDORES-PERSONAL INJURIES—EVI DENCE. On libel by a stevedore, injured in loading a vessel when a bale of cotton fell as the result of the breaking of a clevis furnished by the vessel, a finding that the defect in the clevis could have been ascertained by an ordinarily careful inspection held warranted under the evidence. (For other cases, see Shipping, Dec. Dig. § 86[2].) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-APPLICATION TO STEVEDORES. A stevedore employed by a Texas company was injured while loading a vessel. Under the Texas Workmen's Compensation Act (Acts 33d * Decision rendered, February 8, 1918. 248 Fed. Rep. 480. Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz]) the stevedore asserted a claim against his employer and received payment from an insurer, with whom the stevedore's employer as well as the agents of the vessel had taken out insurance. Held that, as the Texas act was inapplicable to the stevedore's claim against the vessel, and as he asserted no claim against the insurer as an insurer of the vessel or its agents, such payment did not bar his claim against the vessel, but amounted at most to a pro tanto satisfaction. (For other cases, see Master and Servant, Dec. Dig. § 354.) 4. APPEAL AND ERROR-REVIEW-PRESUMPTIONS. Where testimony showing a pro tanto satisfaction of libelant's claim was received, it must be assumed on appeal that the lower court gave proper effect thereto. (For other cases, see Appeal and Error, Dec. Dig. § 932[1].) Before Walker and Batts, Circuit Judges, and Grubb, District Judge. Appeal from the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge. Libel by E. P. McGowen against the steamship Emilia S. De Perez, claimed by Angel F. Perez. From a decree for the libelant, claimant and the sureties on his stipulation for release of the vessel appeal. Affirmed. William B. Lockhart, of Galveston, Tex., for appellant. GRUBB, District Judge. The apellant was the claimant of the steamship Emilia S. De Perez, which was libeled by the appellee in an action seeking to recover damages for a personal injury received by him while he was in the employment of the Galveston Stevedore Company, which was loading the ship, as an independent contractor, in the port of Galveston. [1] The libelant was injured on April 29, 1915, while working in the lower hold of the ship, by the fall of a bale of cotton, which was being loaded into the ship, and which struck him in its fall. The bale fell because of a defective clevis, to which was attached the hook which held the cotton, while it was being loaded. There was no dispute as to existence of a defect in the clevis that broke, or that it was partly an old break. The only matter in dispute was as to whether the defect could have been discovered by a reasonably careful inspection. The tackle, including the clevis, was furnished the stevedores by the ship, and it owed the duty to the stevedores to use reasonable care to see that the tackle was in fit condition for use. This would require of the ship to use reasonable care to inspect the appliances furnished, before they were used, and, if such reasonable inspection would have disclosed the defect before the clevis was used by the stevedores, the ship would have been negligent in failing to make the discovery and in furnishing the defective clevis. [2] The appellant contends that the defect was not discover able and that the accident was unavoidable. It is not claimed that the appellee was himself at fault. The evidence tended to show that there was a partly new and partly old break at the point of fracture. There was no evidence as to its condition before the accident, except as might be inferred from its condition after. There is no evidence of any specific inspection of the clevis by the ship or the stevedores before the accident happened. The witness Goude, who was manager for the stevedore company, testified for the claimant that the ship furnished the equipment; that the tackle was not examined personally by him, or minutely by any one; and that, unless the hook was obviously too small, and objected to by the gang for that reason, no examination was made. This witness also testified that there was a rusty place in the break, but one that was not discernible from the outside. In response to an inquiry as to how rust could get inside, if there was no exposure to the outside, the witness said: "That it would have to find an opening or kink or flaw in the welded part, and it appeared perfectly sound, but when it broke open it probably rusted half way through; that there could be a fibrous streak in the wire, that would not be discernible without looking at it with a magnifying glass." Again he testified: "That there was nothing you could see on the outside of the shackle to show there was any flaw in the welding at all, but there was a mark of rust in one edge of it, but the greater part of it was new." The appellee testified that he saw the broken clevis right after the accident; that it showed black and an old break. His witness Page testified that he saw the clevis after it was broken, and did not piece together the broken parts, but that, if it had been put back in position, he thought the hole could have been seen going through it, though he could not say this with positiveness, as he did not make the experiment. We are not prepared to say that the District Judge erred in concluding from this testimony that the defect was one that would have been discernible by any ordinary careful examination, especially as no such examination was made of it before the accident. [3, 4] The appellant also contends that the decree was erroneous because of the asserted effect of the appellee's acceptance of the sum of $112.50 in the November succeeding his injury from the American Indemnity Company, with whom the Galveston Company and the ship agents of the claimant's ship, for the benefit of the ship, had taken out insurance, as required by the Workmen's Compensation Act of the state of Texas. It is conceded that the provisions of the Texas statute are not applicable to the situation. Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, Ann. Cas. 1917C, 900. The contention is that the appellee, by having voluntarily |