Opinion
December 28, 1946.
Action by Gilbert E. Thiel against the Southern Pacific Company, a corporation. On petition by plaintiff for an order to permit him to manage his appeal and make the necessary filings without payment of costs, on ground that he was a person who, because of his poverty, was unable to pay costs of his appeal.
Petition granted.
Allen Spivock and Philander Brooks Beadle, both of San Francisco, Cal., for petitioner.
Arthur B. Dunne and Dunne Dunne, all of San Francisco, Cal., for respondent.
Before DENMAN, BONE, and ORR, Circuit Judges.
Plaintiff and petitioner seeks our order to permit him to manage his appeal and make the necessary filings without the payment of costs. The Southern Pacific Company opposes. Petitioner is a man without legs. He is employed and to go to and from the place of employment he requires the use of an old automobile, which he owns. He is heavily in debt for his medical expenses. His earnings, plus the sales value of the automobile, could not warrant a saving of the payment of the reasonably estimated costs of appeal before many months have elapsed. In our opinion he is a person who "because of his poverty * * * is unable to pay the costs" of his appeal. There is no certificate of the judge who tried the case below to the effect that the appeal "is not taken in good faith." 28 U.S.C.A. § 832. We think the petitioner presents grounds of appeal which are not frivolous. In such a case we have the authority to entertain a petition of this sort. Smith v. Johnston, 9 Cir., 109 F.2d 152, 155. Cf. Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 35 S.Ct. 236, 59 L.Ed. 457.
The petition is granted.