Shearer v. Anderson

• Decision Date: 10 January 1927
• Docket Number: No. 128.,128.
• Parties: SHEARER v. ANDERSON, Collector of Internal Revenue.
• Court: U.S. Court of Appeals — Second Circuit

16 F.2d 995 (1927)

SHEARER v. ANDERSON, Collector of Internal Revenue.

No. 128.

Circuit Court of Appeals, Second Circuit.

January 10, 1927.

Stewart & Shearer, of New York City (Harry J. Campaign and George L. Shearer, both of New York City, of counsel), for plaintiff in error.

Emory R. Buckner, U. S. Atty., of New York City (Charles Lincoln Sylvester, Asst. U. S. Atty., of New York City, and Mark Hanna Adams, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C., of counsel), for defendant in error.

Before HOUGH, HAND, and MACK, Circuit Judges.

MACK, Circuit Judge.

Under section 214a (6) of the Revenue Act of 1918, in computing net income there are allowed as deductions "losses sustained during the taxable year of property not connected with the trade or business, * * * if arising from fires, storms, shipwreck, or other casualty, or from theft, and if not compensated for by insurance or otherwise." Comp. St. § 6336 1/8g. The loss of $1,252 in question here is charged to have been sustained in an expenditure to repair the damage done to plaintiff's automobile by its overturning while "in the unlawful and unauthorized possession of plaintiff's chauffeur." It is charged that the loss by this "casualty originated in the theft and unauthorized use of plaintiff's automobile, which constituted larceny under the laws of New York, and the overturning of said automobile was caused by the icy condition of the road resulting from storms and freezing." The complaint sought recovery of $300.48 taxes paid because of the disallowance of this deduction; judgment on the pleadings was rendered on defendant's motion, on the ground that no cause of action was set forth. The only question before us is whether the phrase "other casualty" in the act covers this case.

Plaintiff contends that under U. S. v. Mescall, 215 U. S. 26, 30 S. Ct. 19, 54 L. Ed. 77, the rule of ejusdem generis is not applicable in the construction of this section of the act, because the words "other casualty" were not in the original act of 1913, or in the acts of 1867, 1870, and 1894, but were inserted after "shipwreck" for the first time in the act of 1916 (39 Stat. 756). We find it unnecessary, however, to determine whether, in and of itself, this would suffice to obviate the application of the doctrine, and thus to give the deduction in every case of damage due to any casualty; that is, to any serious accident or disaster, due to causes external to the owner, because in our judgment an automobile...