author: HOUGH, Circuit Judge.

text:
    THE PENDRAGON CASTLE. THE SAPI-NERO. LANCASHIRE SHIPPING CO., Limited, v. UNITED STATES.
    (Circuit Court of Appeals, Second Circuit.
    December 15, 1924.)
    No. 109.
    1. Salvage <S=>8 — Standing by leaky vessel in situation of apprehended danger and lending men to Jettison cargo constitute “salvage services.”
    Standing by leaky vessel in situation of apprehended danger and lending men to jettison cargo constitute “salvage services.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Salvage Service.]
    2. Salvage <S=»5 — Service rendered to leaky vessel real, though only real danger was because of master’s unfitness.
    Where incompetent and unfit master of leaky vessel called for convoy, libelant’s vessel, responding and accompanying the other to port, and lending men to assist in jettisoning cargo, rendered real service; the unfitness of salvaged vessel’s master being real danger to craft, though his fears of sinking were groundless.
    3. Salvage <®=>29 — Award of $60,000 held excessive for convoying leaky vessel, and reduced to $35,000.
    Award of $60,000 to vessel, worth $3,000,-000 with cargo, for convoying leaky vessel worth $2,000,000 with cargo, and lending men to assist in jettisoning cargo, because of unwarranted fear of unfit master, held excessive, and reduced to $35,000, where services involved only about two days’ loss of sailing time.
    Appeal from the District Court of the United States for the Southern. District of New York.
    Libel for salvage by Lancashire Shipping Company, Limited, in its own behalf as owner of the steamship Pendragon Castle, and on behalf of the master, officers, and crew of said steamship, against the United States, as owner of the steamship Sapinero, her cargo and freight. Decree for libelant, and respondent appeals.
    Award reduced.
    William Hayward, U. S. Atty., of New York City (Walter Schaffner, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.
    Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Robert S. Ers-kine, of New York City, of counsel), for appellee.
    Before ROGERS and HOUGH, Circuit Judges, and LEARNED HAND, District Judge.
   HOUGH, Circuit Judge.

The leading facts are not in dispute. The Sapinero was a new cargo boat, which on March 12, 1919, sailed from Philadelphia for Falmouth, England, with a cargo of grain. Late in the afternoon of March 19th the Pendragon Castle, which was- on a voyage to Havre, France, began to receive wireless messages from the Sapinero’s master. These messages stated that his grain had gotten into the pump suctions; that his “condition is not serious at present, but may be later; * ° * if possible, assist me to get convoy.” Later on that day the Sapinero similarly said: “Situation is peculiar; ship is leaking in the top sides; grain is absorbing the water; we are in no immediate danger, but I would like to get convoy in ease cargo swells.” It is unnecessary to quote further from these messages, but upon the whole they amounted to an urgent demand' for assistance.

The Pendragon Castle was not the first vessel to respond to the Sapinero’s calls. A Dutch cruiser first came, but owing to lack of coal this vessel was unable to keep pace with the ship that called for help, which was continuing at a fair speed, notwithstanding her condition. Consequently, in response to further appeals, Pendragon Castle joined the Sapinero at 9 p. m. on March 22d. At this time the vessels were about 1,100 miles from Plymouth. Traveling together, they reached Plymouth shortly after 8 p. m. on March 28th. During the voyage Pendra-gon Castle furnished from her crew all the men she could spare to assist in jettisoning grain from Sapinero. The latter vessel had started with 6,154 tons on board. Her pumps being clogged, the water did rise high enough to completely spoil 199 tons. Probably some of the grain was dampened, and thereby increased in weight, but after arrival in Plymouth the difference in weight between-the discharged cargo and the cargo loaded was less than 550 tons.

The Pendragon Castle was not asked to tow, and never did tow; on the contrary, Sapinero had to slow, so as not to drop her convoy. We believe the weather was not at all unusual, though the sea was at times high. One boat was smashed in transporting men between the vessels, but no one was injured. After discharging cargo Sapinero was extensively repaired. Defective dunnage or poor ceiling was the cause of the pumps clogging; but- repairs were proper, because the original construction of the vessel was defective, in that many rivets were not fully or properly driven home.

The change of Pendragon Castle’s course from Havre direct, to Plymouth, gave rise to some delay. Undoubtedly libelant’s vessel was in attendance on Sapinero for six days, and by estimate her ultimate arrival at discharging berth was deferred between two and three days. The salving vessel’s expenditures and losses were agreed upon at $995; so that at this bar we think the sole question is whether $60,000 as a salvage award is such a violation of just principles, or departure from the path of authority, as to require correction on appeal (The Bay of Naples, 48 F. 737, 1 C. C. A. 81), remembering that otherwise appeals in salvage “are not encouraged” (Oelwerke, etc., v. Erlanger, 248 U. S. 521, 39 S. Ct. 180, 63 L. Ed. 399).

That standing by in a situation of apprehended danger is service of a salvage nature is sufficiently established (The Hudson [D. C.] 68 F. 936); and undoubtedly the lending of men to the vessel in danger for the purpose of jettisoning cargo is even more directly a salvage service; i. e., something “designed to relieve [the benefited vessel], from some distress or danger either present or to be reasonably apprehended” (The Kennebec, 231 F. 423, 425, 145 C. C. A. 417, 419).

Thus the ultimate questions here are:

(1) What caused the apprehension of danger on board the Sapinero?

(2) Was that apprehension of danger justified ?

(3) Did the Pendragon Castle remove that apprehension of danger, and in so doing render actual service?

We do not intend to detail the evidence further. The picture presented would not better any one’s opinion of human nature, nor contribute anything useful to the law. We shall summarily answer our own questions thus:

1. The undoubted apprehension of danger by the Sapinero’s master, which induced him to cover the North Atlantic with calls for aid, was the result of incompetence on his part. Whether that incompetence resulted from drink or disease, or both, we are not sure, but the man was unduly frightened and behaved accordingly.

2. His apprehension was apparently that he would fill and sink. We find no evidence justifying that fear.

3. The Pendragon Castle did remove the master’s apprehension, and it did render actual service.

The Sapinero needed assistance, if for no other reason than that her captain whs unfit. Such a captain as this vessel had is a serious danger to any craft. Further, it was a measure of precaution to jettison some grain. Whether that jettison did more than calm the nerves of the Sapinero’s master is rather doubtful; but that it was a good thing for and a real service to this vessel to have an apparently properly commanded and able ship in attendance is not doubted.

The master of the Pendragon Castle went on board the Sapinero; so did one or more of his officers. They all testified, though the master of the Sapinero did not appear - at trial. Our inference from their evidence is that,o to speak colloquially, they saw they had a good thing and made .the most of it. But in this we do not perceive anything legally wrong, and even morally the offense was not great. They were wanted, and they stayed, even if they stayed with their tongues in their cheeks.

The values concerned are unusually large. Libelant’s ship had a cargo of cotton of great value; that cargo, with the ship, was in 1919 worth about $3,000,000. The Sapinero and her cargo were worth about $2,000,000. But the percentage awards, which in small eases of undoubted salvage are so common, do not in eases of this kind furnish a fair criterion for award. The Livietta, 242 P. 195, 155 C. C. A. 35.

So the ultimate question is this: What is a fair award for six days -of convoying a frightened master with a not very leaky ship — an act which involved about two days’ loss of time? As Holmes, J., remarked in OeL werke v. Erlanger, supra, “the work seems to deserve neither much praise nor much blame,” and when we consider the awards heretofore made in eases of actual towage, with large values concerned, we are convinced that the award given below comes within the rule stated in The Bay of Naples, supra. The principal decisions were collected in The Western Pride (C. C. A.) 274 F. 920. Our conclusion is that the award for services in the nature of salvage should be reduced to $35,000, so that the final decree, as corrected, will be for that sum, plus $995, and the costs of the District Court.

'The decree will be corrected as of the date of original entry, January 16, 1924, and draw interest from that day. As a matter of discretion, there will be no costs in this court.


source: Caselaw Access Project

author: MANTON, Circuit Judge.

license: Public Domain

text:
    DROWNE v. GREAT LAKES TRANSIT CORPORATION.
    (Circuit Court of Appeals, Second Circuit.
    February 2, 1925.)
    No. 175.
    1. Shipping <3=84(3) — Owner held hound to provide suitable guard for manhole.
    Owner of vessel undergoing repairs held required to provide suitable guard for open manhole and liable for death of workman falling into unguarded manhole.
    2. Shipping <§=84(5) — Employee of contractor not chargeable with contributory fault in using only available hooks to remove hatch covers.
    Employee of construction company engaged in repair of vessel is not chargeable with contributory fault in using only hooks available for removing hatch covers.
    3. Shipping <3=84(3) — Negligence in failing to
    provide guard for manhole held proximate cause of death of construction company employee. '
    Failure of owner of ship undergoing repairs to provide guard for open manhole held proximate cause of death of employee of construction company.
    4. Admiralty <3=117 — Suits in admiralty are triable de novo.
    A suit in admiralty is triable de novo on appeal, and appellate court is not concluded by trial court’s award for wrongful death.
    5. Death <3=98 — $13,500 damages held insufficient and increased to $15,000.
    Award of $13,500 to widow for wrongfhl death of workman, 40 years of age, with life expectancy of 25 years and earning capacity of $1,800 per year, who contributed from $35 to $50 per week to his wife, held insufficient and increased to $15,000.
    Appeal from tbe District Court of tbe United States for tbe Western District of New York.
    Libel by Martha Drowne, as administra-trix of the estate of George Drowne, deceased, against tbe Great Lakes Transit Corporation, to recover damages for tbe loss of life of George Drowne.
    Decree for libelant (1 F.[2d] 339),- and respondent appeals. Modified, with directions.
    Brown, Ely & Richards, of Buffalo, N. Y. (Fred W. Ely, of Buffalo, N. Y., of counsel), for appellant.
    Sullivan, Bagley & Wechter, of Buffalo, N. Y. (Joseph A. Wechter, of Buffalo, N. Y., of counsel), for appellee.
    Before ROGERS, MANTON and HAND, Circuit Judges.
   MANTON, Circuit Judge.

The appellant, owner of the Munsey, was engaged in overhauling and. putting her in condition for navigation for the season of 1923 while she lay moored in her winter quarters in the port of Buffalo on February 21, 1923. There were about 40 workmen, consisting of carpenters, electricians, and pipe fitters, engaged in' making these repairs. They were in various parts of the vessel in charge of several foremen. The appellant’s shipkeeper was on board. In addition to the work being done by such employees of the owner, there were employees of the Buffalo Marine Construction Company, of whom the deceased was one, who were repairing plates on the starboard side of the hull in holds Nos. 1 and 2. This work was being carried on pursuant to a contract between it and the owner. The hull was divided into five holds. Access to No. 1 hold was through a manhole aft of No. 1 hatch. A fixed iron ladder leads’ to the bottom. The manhole is about 30 inches in diameter and covered with a steel cover which, when in place, was flush with the deck. The iron ladder is permanent and the manhole and ladder furnish a means of ingress and exit to and from the hold. It is located 6 or 7 feet aft No. 1 hatch and a little to the port of amidships. This between-deeks is a large room, and each of the five holds has two hatches. No. 1 is in the forward end of the vessel, about 17 or 18 feet across and about 7 or 8 feet fore and aft and was covered with planks in sections. The planks were 10 to 12 inches wide and about 7% feet long. There were about eighteen to each hatch. Each plank was handled with hatch hooks which were hooked into gauges through which a bolt passed in each end of the plank. It required two men to remove the planks on each hatch and in so doing to use a hatch hook. In 1914, the owners were directed by the federal steamboat inspector to provide movable guards made of pipe with which to guard the manholes when the cover was removed. The guard, as made, consisted of four upright legs about 3 feet high, around which two other pipes were fastened horizontally so that when in use it would be a safeguard against falling into the manhole. Such guards were used upon the Munsey when in service, but they were not there on the occasion herein referred to.

The deceased was a member of a riveting gang and operated a riveting machine. The rivets were heated in the forge and were passed from the forge to the place of use. This gang had' been engaged in work on the vessel for about three days. On the morning of February 21, 1923, the covers were taken off the manhole near hatch No. 1 so that the rigger gang could get into the No. 1 hold for the purpose of rigging up a staging for the riveters. The riveting gang was working at that time in No. 2 hold, and No. 1 was closed. When they finished with No. 2 hold, they shifted their tools to No. 1 hold by taking the tools up onto the between-deeks and letting them down into No. 1 hold through the manhole aft No. 1 hatch. The forge for heating the rivets was already in No. 1 hold. The deceased was one of the men who assisted in doing this work. There was no guard around the manhole, and although the shipkeeper was asked for a guard, none was furnished, and a search of the vessel for such guard produced none, and it was admitted at the trial that there was no manhole guard aboard the vessel at the time of the accident. It became necessary to remove the covers of No. 1 hatch to let in air and let out the smoke and gas for the forging machine below.' The foreman directed that some of the covers of No. 1 hatch be removed. The deceased was engaged in removing these covers with another workman, both of whom used the only two hatch hooks available. These were found on the vessel. They succeeded in removing one plank, and as they were lifting the second plank, it slipped from the hooks and fell into the hold. They tried unsuccessfully to lift the third one, and then a fourth, and when they lifted this three or four inches, the hook of the deceased’s fellow workman slipped off the plank, and as the plank dropped, it slipped from the hook held by the deceased, and the sudden releasing of the entire weight of the plank caused the deceased to take involuntary steps backward in an effort to recover his equilibrium, and before he succeeded he fell into the open and unguarded manhole, doubled up, and went through and met his death. The hook which his fellow workman had used was taken, and both were produced at the trial by the ap-pellee. They were sufficiently identified to justify the learned trial judge to accept the claim that they were the hooks used at the time of the accident. It was not proven that there were other hooks available, nor is it established that there was any negligence on the part of the deceased or his fellow workman in the choice of the hooks.

The vessel was obligated to provide reasonably safe equipment for the deceased, and we think it was a breach of that duty to him to fail to keep this manhole reasonably safe for him and his fellow employees, although they were working for a construction company, by placing a guard about it. The Spokane (C. C. A.) 294 F. 242, certiorari denied, The Spokane v. Steiner, 264 U. S. 583, 44 S. Ct. 332, 68 L. Ed. 861; The Omsk (C. C. A.) 266 F. 200. Movable guards for the purpose of guarding open manholes were recognized as a necessary safeguard, for the vessel used them after it was ordered so to do by the federal inspector. The deceased’s fellow workman asked for such a guard to use it as a protection, and this was denied him because there were none on board. With the large number of mechanics at work on the vessel, reasonable care should have dictated to the vessel owner the need of keeping open the manholes in going to and from the decks, and this one in particular, while the riveting gang was working there. It was the duty of the vessel to furnish proper guards ' under such circumstances. Because there is testimony that the hooks used were the only available ones, no contributory fault can be chargeable to the deceased in using them on the occasion in question. When either through the fault of the hook or otherwise, the deceased lost his balance and involuntarily stepped back in the direction of and into the manhole, he would have been uninjured except for the negligence in failing to properly guard the manhole. There was no reason to suspect danger in the work the deceased undertook to do, and it was the natural and the probable consequence of the negligence or wrongful act of maintaining an unguarded manhole that ought to have been foreseen in the light of the attending circumstances that was the proximate cause, of the loss of this life. Salsedo v. Palmer (C. C. A.) 278 F. 92, 23 A. L. R. 1262; Wilmington Star Company v. Fulton, 205 U. S. 60, 27 S. Ct. 412, 51 L. Ed. 708; D. L. & W. Co. v. Petrowsky, 250 F. 564, 162 C. C. A. 570; Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 475, 24 L. Ed. 256; Fitzwater v. Warren, 206 N. Y. 355, 99 N. E. 1042, 42 L. R. A. (N. S.) 1229; Rooney v. Brogan Constr. Co., 194 N. Y. 32, 86 N. E. 814.

The deceased, 40 years of age, was earning $1,800 a year and at the time of his death had an expectancy, according to the American Tables of Mortality, of 25 years. He left a widow. ' The learned District Judge awarded $13,500 as compensatory damages. While the steamship company takes this appeal, it is a trial de novo in this eourt. The John Twohy, 255 U. S. 77, 41 S. Ct. 251, 65 L. Ed. 511; Reid v. Fargo, 241 U. S. 544, 36 S. Ct. 712, 60 L. Ed. 1156; The Kalfarli (C. C. A.) 277 F. 391. Wé are not concluded as to the amount awarded by the District Judge, since the whole case is open here, and we are not unmindful of the eases which assert that the decision of the trial eourt in admiralty upon the questions of fact, based upon conflicting testimony or the credibility of witnesses examined before the judge, is entitled to great respect and will not be lightly reversed or modified unless there is a decided preponderance of evidence against it or a mistake is clearly shown. The Ludvig Holberg, 157 U. S. 60, 15 S. Ct. 477, 39 L. Ed. 620. But this appellate eourt is not concluded by the amount awarded, even though the witnesses were seen and heard by the District Judge. The Spokane, supra; Pentz v. The Ariadne, 13 Wall. 475, 20 L. Ed. 542; The Kalfarli, supra. These are many elements that enter into the assessment of damages for the wrong resulting in loss of life. The deceased’s age, his earning capacity, his dependents and their ages, his condition of health, his prospect of advancement in position and employment, are all elements to be considered. His contribution to his family is an important factor. The deceased was married for 15 years and was in very good health. He was in no way disabled from carrying on his occupation. He worked steadily and contributed from $35 to $50 a week to his wife. If he lived the full expectancy of life, he had an earning capacity of $45,000, and according to his custom, his wife would have received for her living, comfort, and their mutual savings, nearly all of it. Of course, his life might not have been spared during this full life’s expectancy, He might have become sick or infirm. But with good health and a useful life in prospect, we think the award below was insufficient. We must take note of juries’ award of compensation as some guide to control us in the decision of this question of fact. We note that with the increase in the cost of living, awards have been larger. The widow who must live without the aid of her husband is necessarily confronted with the increase in the cost of living and of her clothing. In the administration of justice, it is the purpose of the law to compensate the dependents as fully as money can for the loss sustained. Its demands, we think, require us to increase the award here and to allow the administratrix $15,000, the full amount prayed for in the libel.

The decree is modified, with directions to the District Court-to enter a' decree in conformity with this opinion. Decree modified, with costs.


text:
    EXCELLA PATTERN CO. v. McCALL CO.
    (Circuit Court of Appeals. Second Circuit.
    January 5, 1925.)
    No. 127.
    1. Patents <@=26(l) — Mere combination of elements, separately unpatentable, not invention.
    A. combination claimed to be valid must rest on some interdependence of the elements; merely putting together two things, which are separately unpatentable, not being invention.
    2. Patents <@=>328 — 852,332, for identifying means common to sections of garment patterns, held invalid for want of invention.
    Patent No. 852,332, claims 1-4, for identifying' means common to sections of garment patterns, held invalid for want of invention.
    Appeal from the District Court of the United States for the Southern District of New York.
    Patent infringement suit by the Excella Pattern Company against the McCall Company. Decree for defendant, and plaintiff appeals.
    Affirmed.
    Mayer, Warfield & Watson, of New York City (Julius M. Mayer, F. P. Warfield, and L. A. Watson, all of New York City, of counsel), for. appellant.
    D. Anthony Usina, of New York City, for appellee.
    Before ROGERS, HOUGH, and MAN-TON, Circuit Judges.
   MANTON, Circuit Judge.

This appeal presents the question of the validity and infringement of United States patent No. 852,-332, granted April 30, 1907, and which expired April 30, 1924. The question of the validity and infringement of the other patent sued on is not now presented. The invention consists in providing each section of a pattern with keying means, by displaying upon the same some readily distinguishable mark or symbol common to each section of the pattern, together with cértain instructions respecting the use of the patterns, or several sections of the same, as, for instance, the name of the individual section and the name of the garment for which the pattern is designed. The printed matter is in several languages. The claims which are in issue are from 1 to 4 and are as follows:

“1. In garment patterns, sections of the same, each section having an identifying mark or symbol common to all the sections.
“2. In garment patterns, sections of the same, each section having an identifying mark or symbol common to all the sections, the name of the section, and instructions for its use, displayed thereon.
“3. In garment patterns, sections of the same, each section having an identifying reference mark or symbol common to all the sections, and consisting of a number representing the ‘bust,’ ‘waist,’ or other measurement of the garment for which the pattern is intended, such number being employed as a key.
“4. In garment patterns, sections of the same, each section having an identifying reference mark or symbol common to all the sections and consisting of a number representing the ‘bust,’ ‘waist,’ or other measurement of the garment for which the pattern is intended, such number being employed as a key, in combination with the name of the part of the garment each pattern section represents.”

The record discloses that the idea of printing directions for use on a piece of the pattern is as old as the patterns themselves. The commercial pattern has been made of tissue paper perforated various ways to aid the user in cutting out pieces of fabric and sewing them together. The edge of the pattern piece corresponds with the shape to be cut out of a piece of fabric, and the identifying marks on the patterns are punched in by punches and insignia which had to be interpreted through a chart, generally carried on the envelope. The appellee, in 1920, substituted a printed pattern for the old perforated pattern, after inventing the efficient way of printing successfully and cheaply on tissue paper. It patented this idea. The edge of the pattern piece does not show the shape which is to be cut out of the fabric. The shape to be cut out is printed on the pieces, and the edge is cut freely, leaving a margin of varying width around the printed outline, so as to distinguish this readily from the margin that is to be cut off. The appellee’s pattern contained in print various lines and directions that show in Fig. 3. This figure shows a line along which is the legend, “Turn under along this line for hem,” and in the center is printed, in larger type, the name of the particular piece of the dress of which this is a pattern, namely, “front panel.” The appellee’s patterns are printed to show these and various other matters helpful to the user. They likewise contained in print the pattern number and size, which was printed on several pieces of the pattern. This seems to be the basis for the appellant’s complaint that the claims of the patent are infringed.

It will be observed that the distinguishing words of the claims are “an identifying mark or symbol common to all the sections.” It is the minute detail of a pribted pattern that this inventor claims to have invented. But the idea of printing directions on garment patterns is so obvious and so old that it cannot be monopolized by any one at this late date. Indeed, the appellee’s omitting the practice of printing the number and size, when infringement was claimed, has shown no difference in value. It was an obvious thing for the appellee, in issuing a printed pattern, to print on each piece, along with the use, an identifying number and size of the pattern. The advantage of printing the style, number, and size of'each piece of the pattern is trifling, according, to this testimony. In manufacturing, the folding operator receives the piece for only 'a certain style and size of .pattern, receiving them in separate bundles, as (1) an arm piece; (2) the front; (3) the back piece. The operator unties these bundles and takes one arm piece, one front piece, and one back piece, and puts them in an envelope which she received from the bundle, and which is properly marked. When manufacturing the old perforated pattern, they came to the folder, with the number and size marked on the top of each bundle. All the pieces in the bundle are identified, because they are ’all cut out on the same operation from a stack of plain sheets, which are clamped together during a cutting and are tied together before the clamps are removed. Therefore, in each ease there is no occasion to read the style and size on the individual pieces. When a woman makes two or three dresses at once, which does not occur frequently, there is an advantage • in the number and size being marked on each pattern piece.

But, with it all, it has occurred to all industries, and in nearly every practice of life, to mark for assistance and identification two things which are liable to be confused, giving the name, number, or some identifying provision. Court records, lawyers’ papers, manufacturers, and, indeed, men in everyday affairs of life, avoid confusion by so doing. The courts, in testing the validity of inventions, have fully recognized this, as, for instance, in Boston Pencil Pointer Company v. Automatic Pencil Sharpener Co. (C. C. A.) 276 F. 910, this court held that a novelty, however great, cannot be put in the place of invention, and that a clip receptacle for pencil pointers, having celluloid sides and metal ends, did not disclose invention. So, too, a patent for a church contribution envelope containing certain printed directions for use on particular Sundays. Kratz Co. v. Double Envelope Corp. (C. C. A.) 288 F. 971. A patent for making bivalves, by means of a tag which served to identify the oyster after it was opened, was held invalid. Armstrong Seatag Corp. v. Smith’s Island Oyster Co., 254 F. 821, 166 C. C. A. 267. So was a patent for a carton with certain surfaces designed to display identifying advertisements. Singer v. Amer. Druggist Syndicate, 243 F. 201, 156 C. C. A. 67. An envelope having a transparent covering adjusted to show the address of the sheet inside was held invalid. Outlook Envelope Co. v. Sherman Envelope Co., 216 F. 754, 132 C. C. A. 575. An idea for the placing of indicating marks on certain opaque material associated with a film was held invalid in Eastman Kodak Company v. Anthony-Scovil Co., 145 F. 833, 76 C. C. A. 416.

The appellant argues 'that claims 2 and 4 may be patentable on the theory that two things may be patentable, even if the things are separately old. A combination claimed to be valid must rest upon some interdependence of the elements. To merely put two things, which are separately unpatentable, together, is not to make an invention. There must be some interdependence in the combination of the elements to serve the function which they would not serve separately. This is not true of the claims in suit. The title and directions on the different pieces have nothing to do with keeping together all of the pieces of one pattern. The common symbol on all pieces has nothing to do with the distinctive names of the separate pieces or the directions for using them. Reckendorfer v. Faber, 92 U. S. 347, 23 L. Ed. 719. We hold the patent void for want of invention.

Decree affirmed.


author: PER CURIAM.

text:
    In re GROTON LAUNDRY SERVICE, Inc. Petition of NATTER.
    (Circuit Court of Appeals, Second Circuit.
    January 5, 1925.)
    No. 113.
    1. Bankruptcy <§=440 — Remedies, by appeal and petition to revise are mutually exclusive.
    Remedies by appeal and petition to revise are mutually exclusive.
    2. Bankruptcy <§=440 — Order requiring bidder to fulfill terms of bid reviewabie only by petition to revise.
    An order requiring a bidder at judicial sale in bankruptcy proceedings to fulfill bis bid under penalty of contempt proceedings is reviewable only by petition to revise.
    3. Bankruptcy <§=444 — Petition to revise must be verified, and attorney’s verification must show0 reasons.
    Petition to revise must be verified, and, though verification may be by attorney, reasons must be shown why such attorney verifies, instead of petitioner.
    4. Bankruptcy <§=446 — Petition to> revise reaches only matters of law.
    Petition to revise reaches only matters of law, and the reviewing court is bound by the facts found by the court below.
    5. Bankruptcy <§=446 — Finding that bidder had no just cause for repudiating bid held to present no question of ¡aw on petition to revise.
    On petition to revise an order in bankruptcy holding bidder at judicial sale to terms of his bid, a finding that petitioner had no just cause of complaint, for misrepresentation or otherwise, • supported by evidence, raises no question of law.
    Appeal from Petition to Revise Order of the District Court of the United States for the Southern District of New York.
    In the matter of the Groton Laundry Service, Inc. To review an order requiring Max Natter to fulfill terms of his hid at judicial sale, he appeals and petitions to revise.
    Appeal dismissed, and order affirmed.
    Benjamin A. Hartstein, of New York City (Max Klein, of New York City, of counsel), for petitioner.
    Edward W. Drucker, of New York City, for trustee.
    Before ROGERS, HOUGH, and MANTON, Circuit Judges.
   PER CURIAM.

The record at bar is a curiosity, illustrating a rather unusual numer of errors in practice. Natter deemed himself aggrieved by an order entered on June 7, 1924. His counsel accordingly filed in the District Court what was intended as a technical appeal. This paper is presented to us, printed and agreed upon as correct by the attorneys, but it is unsigned and undated. An examination of our files shows that on June 13, 1924, a document called a petition to revise was filed in our clerk’s office. This paper is not contained in the printed record submitted to us. Furthermore, it is signed only by Natter’s attorney, and is not verified. The condition of these proceedings would justify us in disregarding them, but as a matter of grace we make the following observations:

There cannot be an appeal and a petition to revise to the same point. The two remedies are mutually exclusive. In re Menist (C. C. A.) 289 F. 229.

What Natter wishes to complain about is that he was held to the terms of a bid made by him at a judicial sale, and was threatened with contempt proceedings if he did not pay the difference between his bid and what the articles knocked down to him fetched at a resale. This matter can be reached only by a petition to revise. In re Rival, etc., Co. (C. C. A.) 289 F. 960.

Therefore the appeal must be dismissed. But the petition requires verification, and, though such verification may be by an attorney, he must show the reasons for his verifying, instead of the party petitioning. Consequently the petition here is technically bad. In re Mitchell (C. C. A.) 278 F. 707. But, if the petition were technically good, it would remain true that it reaches only matters of law; we are bound by the facts found by the court below — a matter now too plain to require citation.

There is no doubt that Natter made a bid. It was referred to a special master to ascertain whether the selling officer had made any “misrepresentations with respect to the mortgages existing on the bankrupt’s premises.” The master reported the facts, finding no misrepresentation.

But Natter claimed, though the matter was not strictly within the record, that promises unfulfilled had been made to him to the effect that, if he bought, he could get a lease apparently on favorable terms from the landlord of the premises occupied by the bankrupt. The lower court found in substance that Natter could get a lease, but that he was not satisfied with the terms offered. The court then found in substance that on the evidence Natter had no right to complain against the officials of the bankrupt estate in respect of the landlord’s unwillingness to give him a reduced or satisfactory rent, and so passed the order complained of.

This raises no question at law, and there was evidence to support the findings. We are not concerned with the weight of the evidence — not that we desire to express any dissatisfaction on that score. It results that neither technically nor'upon the record that ought to have -been made, but was not, has this petitioner any right to succeed.

The order is affirmed, with costs.


text:
    THE PANTHER.
    (Circuit Court of Appeals, Second Circuit.
    January 5, 1925.)
    No. 121.
    1. Towage <©=>! I (6) — Captain of tug negligent in permitting barge to drift.
    Captain of tug, .in permitting barge to drift while landing other barge when tide was flood, was negligent.
    2. Towage <®=>i I (6)— Absence of anchor from barge equipment held sole proximate cause of collision while drifting.
    Barge injured in collision, when permitted by tug to drift without anchor as part of equipment, held solely at fault, notwithstanding negligence of tug captain, since failure to have anchor was intervening negligent fault and sole proximate cause.
    • Appeal from the District Court of the United States for the Eastern District of New York.
    Libel in admiralty by Michael J. Derby against the steam tug Panther, her engines, etc., claimed by the New York Marine Company.
    Decree for libelant, and claimant appeals. Reversed.
    Certiorari denied 45 S. Ct. 508, 69 L. Ed.
    Barry, Wainright, Thacher & Symmers, of New York City (James K. Symmers, of New York City, of counsel), for appellant.
    Macklin, Brówn & Van Wyek, of New York City (Pierre M. Brown, of New York City, of counsel), for appellee.
    Before HOUGH and MANTON, Circuit Judges, and LEARNED HAND, District Judge.
   MANTON, Circuit Judge.

On January 13, 1922, at 6:45 p. m., the Panther had in tow the barges Conway, Hancock, and McLoughlin to be delivered at the foot of Fifty-Eighth street, North River. The Conway and Hancock were in the first tier, the Conway being the port barge, and astern of these was the McLoughlin. When midway between Twenty-Third street and Thirtieth street, the Panther cast off both the Conway ’ and Hancock and proceeded with the McLoughlin to Thirtieth street. The reason for this was stated to be that there was heavy ice on the New York side which prevented the Panther from landing the. two barges on that side while the McLoughlin was being placed in the Thirtieth street slip. The tide was flood, running at the rate of about one knot. While the Panther was thus engaged and before she made her return, it was nearly .an hour. The Conway came into collision with the New York, which was anchored west of Eifty-Ninth street, and damaged. There is testimony, which is denied, that the tug captain told the captains of the Conway and Hancock that he was going to let them drift while he was taking the McLoughlin to Thirtieth street, and that he would return to them, to which the barge captains replied: “All right, Cap.; we will go along until you come back.” We need not consider the truth or falsity of this statement, for we.are obliged to exonerate the Panther from fault which contributed to the collision because of the fact that the Conway did not have an anchor as part of her equipment. It undoubtedly was neglect to let this barge drift, as the Panther did; but the proximate cause of the contact was the fault of the Conway in not having an anchor which it might have dropped and have avoided the drift and collision with the New York. This court has held that there cannot be two proximate causes of such a disaster, and that in such a disaster as this, the failure to have an anchor is an intervening negligent fault which is the proximate cause. This, for, the reason that but for the drift, the defaults of the others would not have brought about the happening of the collision. The Sunny-side, 251 F. 271, 163 C. C. A. 427; M. E. Luckenbach (D. C.) 200 F. 630, affirmed 214 F. 571, 131 C. C. A. 177; The Barge Red Eagle, 3 F.(2d) 541, decided in this court November 3, 1924.

It is urged that the Panther is in part at fault and should be held responsible for the payment of one-half the damages. Reliance is placed on The Westchester, 254 F. 576, 166 C. C. A. 134; and The Etruria, 147 F. 216, 77 C. C. A. 442. In The Westchester there was an unexplained breaking of the propeller shaft of a tug in charge of a tow. The barge went adrift and later stranded. It was held that it could not be said with reasonable certainty that if it had been equipped with anchor, stranding would have been avoided and both the tug and barge were held for half damages. In The Etruria a tug east adrift two lighters having neither motor power nor means of signaling, and a collision occurred between one of the lighters and a steamship passing out to sea, which did not see the lighters until 1,000 feet away from them. The steamship was held chargeable with contributory fault in failing to see the lighters and in going at such a rate of speed that she was unable to avoid the collision. No unseaworthiness was established because of the lack of anchor. That failure was held not to be the proximate cause of the collision. The Panther may not be held at actionable fault here, and the proximate cause must be found to be that the barges were unseaworthy in not being equipped with an anchor.

Decree reversed.


text:
    In re ST. LAWRENCE CONDENSED MILK CORPORATION.
    (Circuit Court of Appeals, Second Circuit.
    January 8, 1925.)
    No. —.
    1. Courts <@=>404 — Prohibition issued by Circuit Court of Appeals where motion in District Court to vacate orders was after giving of notice of petition to revise.
    Motion for prohibition' to restrain District Court from proceeding with motion to vacate orders is the proper remedy, and will be granted by the Circuit Court of Appeals, in protection of its appellate jurisdiction, where motion to vacate was made after giving of notice of petition to revise, and favorable action thereon would take away appellate jurisdiction of Circuit Court of Appeals.
    2. Bankruptcy <@=>444 — Nunc pro tunc order as to filing order, timely made; enlarging time for filing petition for revision, permissible.
    Where, pursuant to rule of Circuit Court of Appeals, order enlarging time for filing petition for revision was timely made, but was not filed with clerk of the District Court within time limited by rule for serving and filing it, District Court could direct that it be filed nunc pro tunc.
    Petition to Revise Order of the District Court of the United States for the Northern District of New York.
    In the matter of St. Lawrence Condensed Milk Corporation, bankrupt. Petition to revise order of the District Court. Heard on motion by the Brown & Bailey Condensed Milk Company and others for a writ of prohibition to be directed to Hon. Prank Cooper, United States District Judge for the Northern District of New York; and on counter motion by Prank L. Cubley and Lawrence Russell to dismiss the petition to revise filed herein by said Brown & Bailey Condensed Milk Company and others.
    Motion granted; counter motion denied.
    Sparks & Fuller, of Brooklyn, N. Y., for petitioners.
    Lawrence Russell, of Canton, N. Y., and Prank L. Cubley, of Potsdam, N. Y., for respondents.
    Before ROGERS, HOUGH, and HAND, Circuit Judges.
   PER CURIAM.

1. As to the motion for a writ of prohibition.

It is admitted that the object of a pending motion in the District Court is to vacate certain orders. If the orders are vacated, they no longer exist, and in contemplation of law never'had an effective existence. But if these orders are vacated, the right to appeal or file a petition to revise is gone.-

This motion to vacate was made after notice of petition had been given. It is therefore entirely evident that the object of tha motion and the effect of any favorable action of the court thereupon would be to interfere with, and indeed take away, the appellate jurisdiction of this court.

Under such circumstances, motion for a writ is the proper remedy. Muir v. Chatfield, 255 F. 24, 166 C. C. A. 352.

Therefore the motion for a writ must be granted. But it will not be necessary to actually issue a formal writ, inasmuch as we assume that the learned judge below, upon having this memorandum communicated to him, will forbear from further proceeding with the motion complained of.

2. As to the motion to dismiss the petition to revise.

The proposition of respondent is that although, pursuant to the rule of this court, orders enlarging the time when a petition for revision could be filed were actually made under our rule, said orders were not actually filed with the clerk of the proper District Court before the expiration of the times limited by rule for serving and filing such petition.

This was an undoubted departure from the rule, and standing alone would require the dismissal of the petition. But this motion goes further, and asserts that it was beyond the power of the court below to do (what was actually done), direct that such orders should be filed nunc pro tune, or as of the proper time, to wit, the time of making said order.

If no enlarging order had been made timely, no such order could be made later by declaring that the order should be entered nunc pro tune. The general distinction is pointed out in Lindauer v. Pease, 192 Ill. 456, 61 N. E. 454, to wit, that a nunc pro tunc order cannot be made to cure a failure to make an order, but only to supply some omission in the record of an order already made.

In local practice, orders nunc pro tunc for this or a similar purpose are commonly recognized; i. e., they are used to cure a minor error if the main thing has been properly done. Here the main thing was done, to wit, an order of enlargement was timely made. We think a nunc pro tune order as to the filing of that document is within the practice as recognized in the citation already made, and in Waggoner v. Walrath, 25 Hun, 315; People v. Central Bank, 53 Barb. 412.

The motion for prohibition is granted, although, as above noted, no actual writ need issue; and the motion to dismiss is denied.


text:
    THE TUNGUS.
    (Circuit Court of Appeals, Second Circuit.
    January 5, 1925.)
    No. 114.
    Collision <S=^72(I) — Collision between vessels riding on anchors during strong wind held due to fault of both vessels.
    Collision between vessels riding on anchors in harbor during strong wind, on failure of one vessel to drop second anchor or get up steam until about time of collision, and failure of other vessel to pay out more than five fathoms of chain when danger of collision became imminent, held due to fault of both vessels.
    Appeal from the District Court of the United States for the Southern District of New .York.
    Libel in admiralty by the Wilhelmsen’s Dampskibs Aktieselskabet, owner, of the steamship Tungus, against the United States. Decree for half damages, and libelant appeals.
    Affirmed.
    Haight, Smith, Griffin & Deming, of New York City (Henry M. Hewitt, of New York City, of counsel), for libelant.
    William Hayward, U. S. Atty., of New York City (Ralph B. Romaine, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.
    Before ROGERS, HOUGH, and MAN-TON, Circuit Judges.
   MANTON, Circuit Judge.

The appellant’s steamship Tungus on November 15, 1919, anchored in the harbor on the Red Hook flats in a northwestern position from the appellee’s vessel, the Westerner, which distance it deemed safe. Both vessels were light, without cargo, and were riding on their anchors for four days swinging with the tides and with no unusual occurrence. On the 19th, a northwestern gale blew, the wind averaging a velocity of over 40 miles an hour. The Tungus was riding on her port anchor and dropped a starboard anchor, let out more chain in the port anchor so that there were 50 fathoms of port chain and 25 fathoms of starboard chain. The Westerner was riding on her port anchor, but did not let out more chain or let out a second anchor during this gale. Another steamer, the Henry Clay, was to the southeast of the Tungus. The barometer was falling rapidly on the 19th, which indicated worse weather to come. The Westerner had steam in her donkey boiler and had a reserve of 45 fathoms of chain on her port anchor, but took no precautions whatever to avoid the contact which subsequently occurred. The officer in charge neither dropped a second anchor nor got up steam until about the time of the collision. The only barometer on the ship was inaccessible, as it was locked in the cabin of the captain, who was ashore. At about 3:15, the watchman, who was the only person on deck, called the second officer of the Westerner and advised him the Westerner was drifting dangerously close to the Tungus. The second officer immediately ordered steam. What occurred thereafter is in dispute, but we think the evidence warrants the following findings: • That the Westerner again swung close but cleared the bow of the Tungus; thereupon the Tungus paid out five fathoms more of chain, but the Westerner, in her swing, swung again, and either struck the7 port chain or stem of the Tungus. No further chain was paid out by the Tungus, and the officer in charge said he did not do so because the Henry Clay lay under his stem. Thereupon the Westerner hove in on her chain dragging down past the Tungus and the Henry Clay to a berth where she lay until 8 a. m. At that hour, the wind became stronger, and she dragged against the piers at Sixty-Eifth street, South Brooklyn, more than a quarter of a mile distant. The Tungus’ stem was found to be bent slightly to port and her starboard rail was broken a short distance abaft her stem by the overhanging of the Westerner. We think the Westerner did strike the Tungus, and we resolve this question of fact in favor of the claim of the appellant.

This was not a ease of extraordinary risk. The Sapphire, 11 Wall. 164, 20 L. Ed. 127; The Ciudad de Reus (C. C. A.) 185 F. 391; Riley v. The Richmond (D. C.) 56 F. 619, affirmed 63 F. 1020, 12 C. C. A. 1. The Tungus knew or should have known that by veering chain a collision could have been avoided, and this could have been done by one seaman. Indeed, when danger was somewhat remote, this was done, by veering 20 fathoms on one chain and holding on to the other. When danger became inevitable, only 5 fathoms were paid out. At that time the distance of the Henry Clay astern would have justified paying out at least 40 fathoms. We think the testimony warrants these conclusions. The Westerner was at fault, but the Tungus could not depend solely upon her to have avoided a collision. She did not use the means at hand and which were possible for avoiding such collision. The point of danger of the contact was slow but steady and gave ample time for due consideration and caution. Both vessels were at fault.

The decree below is affirmed.


author: LEARNED HAND, Circuit Judge.

text:
    THE PRINCESS ANNE.
    (Circuit Court of Appeals, Second Circuit.
    February 2, 1925.)
    No. 171.

    Admiralty ©=334— Claim of consignees for loss of goods by stranding of vessel on February 6, 1920, not asserted until May 8, 1924, held barred by limitation.
    Claim of consignees for goods lost on February 6, 1920, by stranding of vessel in control of Director General, not asserted until May 8, 1924, were barred by Transportation Act Feb. 28, 1920, § 206 (a), being Comp. St. Ann. Supp. 1923, § 10071lice, regardless of whether filing of claim under Admiralty Rule 52, or filing of limitation proceeding by Director General on March 1, 1923, under rule 51, be deemed commencement of proceeding, and claimant’s petition to be relieved from default in limitation proceeding and' for permission to file claim nunc pro tunc was properly denied.
    Appeal from the District Court of the United States for the Southern District of New York.
    In the matter of the petition of James C. Davis, for limitation of liability for1 losses arising through stranding of the vessel Princess Anne. From an order denying their petition to be relieved from default, and for permission to file their claim nunc pro tune, Matthew J. Levy and others appeal.
    Affirmed.
    Levy & Becker, of New York City (Peter A. Lee, of New York City, of counsel), for appellants.
    Evan Shelby, of New York City (Harold K. Hines, of New York City, of counsel), for appellees.
    Before ROGERS, MANTON, and LEARNED HAND, Circuit Judges.
   LEARNED HAND, Circuit Judge.

On March 1, 1923, the Director General filed a petition on the admiralty side of the District Court to limit his liability under the Fifty-First Admiralty Rule for losses arising through the stranding of the vessel Princess Anne on the 6th of February, 1920. On March 2d a monition was issued citing all persons having claims to present them at the office of a duly appointed commissioner on or before April 6, 1923. Certain claims were filed in season and the claimant so filing answered the petition. Thereafter on May 25, 1923, the District Court passed an order declaring all persons who had not filed their claims to be in default and directing that the issues raised by the petition and answer stand for trial.

On May 8, 1924, the appellants filed a petition in the District Court alleging that they were consignees of merchandise on the Princess Anne under a duly executed bill of lading. The petition recited the proceedings theretofore had, alleged that the petitioners had had no notice of the monition, and prayed that they be relieved of their default and have permission to file their claim nunc pro tunc. This motion was denied and the present appeal resulted.

Several points are raised, but we think the case can be disposed of on the single point of the statute of limitations. On February 6, 1920, when the cause of suit arose, the Princess Anne was under the control and operation of the Director General. Section 206 (a) of the Transportation Act of February 28,1920 (Comp. St. Ann. Supp. 1923, § 10071^4ce), authorized proceedings in admiralty to be brought against the Director General based on causes of action arising out of his operation of any carrier by authorization of the President. These might be brought in any court which but for federal control would have had jurisdiction over the cause of action had it arisen against the carrier, but must be brought within the statutory periods of limitation already in force, and not later than two years from the date of the passage of, the act. Although the Princess Anne was wrecked before the act went into effect, the appellants took no action until the notice of motion filed herein on May 8, 1924, more than four years after the Transportation Aet-was passed.

In any view the appellants are barred by the statute. If the filing of the,claim under rule 52, which under rule 53 is a condition to the claimant’s right to answer, be deemed the commencement of any admiralty proceeding as respects him, it was too late. If the filing of the limitation proceeding be deemed the commencement of the proceeding, it was also too late. Nothing is gained by asking for an order nunc pro tunc when the statutory time has expired.

Order affirmed.


author: PAGE, Circuit Judge.

text:
    WOODFORD v. INTER OCEAN REFINING CO. et al.
    (Circuit Court of Appeals, Seventh Circuit.
    March 25, 1925.)
    No. 3393.
    /. Receivers ©=»l80</2 — Dismissal of bill filed without leave by receiver is within discretion of court having jurisdiction of receivership.
    Dismissal by court having charge of receivership of bill filed by receiver without leave is matter within discretion of court, of which receiver i<3 an officer.
    2. Corporations ©=>556 — Suit for receiver cannot be maintained in federal court on claim not reduced to judgment.
    Bill on behalf of all creditors of corporation for appointment of receiver and to wind up affairs of defendant cannot be maintained in federal court on a claim not reduced tp judgment.
    Appeal from the District Court of the United States for the Eastern Division 'of the Northern District of Illinois.
    Suit by J. W. Woodford, as receiver of the Southern Oil Corporation, against the Inter Ocean Refining Company. Erom a decree dismissing the bill, plaintiff appeals.
    Affirmed.
    George G. King, Max Pam, and Harry Boyd Hurd, all of Chicago, Ill., for appellant.
    Richard E. Kropf, of Chicago, Ill., Irving A. Pish, J. H. Marshutz, and G. R. Hoffman, all of Milwaukee, Wis., Herbert H. Thomas, of Madison, Wis., and Geo. I. Haight and Edmund Adcock, both of Chicago, 111., for appellee.
    Before ALSCHULER and PAGE, Circuit Judges.
   PAGE, Circuit Judge.

In a bill to foreclose a trust deed in Oklahoma, against the Southern Oil Corporation, appellant was appointed receiver under the provision of the trust deed. In the District Court (Northern District of Illinois) he was appointed ancillary receiver, and in that court, without leave, filed a bill, alleging a debt due from appellee to Southern Oil Corporation that was not reduced to judgment. He asked for the appointment of a receiver for and to wind up the affairs of appellee, an Illinois corporation. The suit was brought on behalf of Southern Oil Corporation and all creditors of appellee who might join. Without assigning a reason, the court dismissed the bill.

1. Appellant was an officer of the court, and the dismissal was within the discretion of the court.

2. Such a bill may not be maintained in a federal court before claim is reduced to judgment. Morrow Shoe Mfg. Co. v. New England Shoe Co., 60 F. (7th C. C. A.) 341, 8 C. C. A. 652, 24 L. R. A. 417; Pusey & Jones Co. v. Hanssen, 261 U. S. 491, 43 S. Ct. 454, 67 L. Ed. 763.

The decree is affirmed.


text:
    LAMANTIA v. UNITED STATES et al.
    (Circuit Court of Appeals, Fifth Circuit.
    April 4, 1925.)
    No. 4497.
    Appearance ©=>24(5) — Defendant, who excepted to libel for failure to state cause of action, waived defect in service of process.
    Defendant, who appeared in case and excepted, to the libel on ground that it failed to state cause of action, waived any defect in service of process on him by appearing and invoking the court’s decision as to the merits of the claim asserted in the libel.
    Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Poster, Judge.
    Action by the United States against Anthony Lamantia and others. Judgment for the United States, and defendant Lamantia appeals.
    Affirmed.

      John E. Jackson and Stanford E. Owen, both of New Orleans, La., for appellant.
    Louis H. Burns, U. S. Atty., and Edwin H. Qrace, Asst. U. S. Atty., both of New Orleans, La., for appellees.
    Before WALKER and BRYAN, Circuit Judges, and BARRETT, District Judge.
   PER CURIAM.

This is an appeal from a judgment against the principal and sureties ón a bond given to procure the release of a motorboat which was seized, and against which forfeiture proceedings were instituted. The appeal was taken by one of the sureties, who complains of the judgment on the sole ground that there was no valid service of the citation to him in the proceeding. The appellant, without raising any question as to the service of process upon him, appeared in the cause and excepted to the libel therein on the ground that it sets forth no cause of action. By appearing and invoking the court’s decision as to the merits of the claim asserted in the libel, the appellant waived any defect in the service of process upon him. St. Louis & San Francisco Railway Co. v. McBride, 141 U. S. 127, 11 S. Ct. 982, 35 L. Ed. 659; Pease v. Rathbun-Jones Engineering Co., 228 F. 273, 142 C. C. A. 565.

The judgment is affirmed.


author: SANFORD, District Judge.

text:
    AMERICAN TRUST CO. v. AMERICAN CENT. LIFE INS. CO.
    (District Court, D. Tennessee, at Nashville.
    July 15, 1922.)
    No. 1430.
    1. Insurance <S=»146(3)— Ambiguous provision resolved most strongly against insurer.
    Ambiguous provision in insurance policy, so framed as to1 leave room for two constructions, is to be resolved most strongly against insurer.
    2. Insurance <S=»529 — ■Life policy, containing double indemnity benefit in case of accidental death, held to cover accidental death within one year of policy date; “premium-paying period.”
    Life policy, containing disability benefit provision waiving payment of premium during disability of insured and containing double indemnity benefit clause which provided, in case of accidental ’ death, payment of double face amount of policy on proof that death of insured occurred “during the premium-paying period and not less than one year from the date thereof,” held to cover accidental death within one year of date of policy; the words “premium-paying period” relating to period in which insured was not relieved from payment of premiums under preceding disability benefit provision.
    At Law. Action by the American Trust Company, guardian of Mossie Mosely, against the American Central. Life Insurance Company. On demurrer to amended declaration.
    Demurrer overruled.
    Judgment affirmed 5 F.(2d) 71.
    Reynolds & Peebles, of Nashville, Tenn., for American Central Life Ins. Co.
    MCCarley & Stephenson, and H. A. Luck, all of Nashville, Tenn., for American Trust Co.
   SANFORD, District Judge.

The demurrer, as amended, is specifically limited to so much of the declaration, as amended, as seeks recovery of the additional $5,000.00 of accident insurance under the “Double Indemnity Benefit” provision of the rider.

The general policy, dated May 6, 1921, is for the sum of $5,000.00, regardless of the cause of death, except in ease of self-destruction within -two years. The insured was then 47 years of'age.

It specifically recites, on page 3, that: “The consideration for this policy shall be the application therefore and a premium of Two Hundred and Seven and 30/100 Dollars for the period terminating May sixth, 1922, and a premium of like amount payable on said date and annually thereafter during the continuance of this policy.”

The attached rider, printed on one sheet and evidently intended to be attached as an entirety, contains two provisions; the first entitled “Total and Permanent Disability-Benefit” ; and the second, “Double Indemnity Benefit.”

The Disability Benefit provision is, in substance, that if, while no premium is in default, the insured, before attaining sixty years, becomes so disabled as to be prevented from working or following any gainful occupation, the Company will waive the payment of each premium thereafter becoming payable under the terms of the policy and will pay the insured, after six months, a monthly income of $50.00, during the continuance of such disability or until the face of the policy becomes payable. It is further recited that the premium for this disability benefit, $14.10, is included in the premium of $207.30, stated on page 3 of the policy, and that it shall cease when the insured becomes sixty years of age, the amount of the premium to be reduced in like amount.

The Double Indemnity Benefit provision, which, as stated is printed on, the same rider as the Disability Benefit provision and immediately after it, states in the first paragraph that, “The Company will pay double the face amount of this policy to the beneficiary, upon proof that the death of the insured occurred during the premium paying period and not less than one year from! the date thereof, and before attaining age sixty-five,” in consequence of bodily injury effected accidentally; “provided that no premium is due or unpaid or has been waived under any disability provision and that this policy is then in full force.” It is further recited that the premium for this double indemnity benefit, $10.80, is included in the premium of $207.30 stated at p. 3 of the policy, and that it shall cease when the insured becomes sixty-five years of ago, all subsequent premiums to be reduced by such amount.

It is alleged in the declaration and admitted by the demurrer, that the insured paid, the entire premium of $207.30, including the double indemnity premium of $10.80 upon the issuance of the policy.

The defendant’s theory is that the phrase “and not less than one year from the date thereof”- in the Double Indemnity Benefit provision means “not less than one year from the date of the policy,” and that hence, as the accidental death of the insured occurred less than one year after such date, there is no liability for the additional $5,-000.00 of accident insurance.

It is well settled, however, that an ambiguous provision in an insurance policy, so framed as to leave room for two constructions, is to be resolved most strongly against the insurer. Liverpool Ins. Co. v. Kearney, 180 U. S. 132, 136, 21 S. Ct. 326, 45 L. Ed. 460; Railway Association v. Moseley (6th CirC.) 211 f. 1, 5, 127 C. C. A. 427; and many other cases.

The construction of the clause “not less than one year from the date thereof” upon which the defendant relies is, however, open to grave doubt.

1. It treats the word “thereof” as equivalent to “hereof” and as referring to the previous words “this policy,” to which it does not grammatically relate, and from which it is separated by the phrase as to the “premium-paying period,” to which it does grammatically relate.

2. It attaches no meaning whatever to the preceding phrase in reference 'to the premium-paying period, to which the word “thereof” grammatically relates; and which on the defendant’s theory is entirely superfluous. If the defendant’s construction be that which was in fact intended obviously the clause would have been naturally and simply written-: “Accompanied by due proof that the death of the Insured occurred not less than one year from the date hereof” (or, of this policy) and before attaining age sixty-five; there being no necessity, if this was what was intended, in any reference to the premium-paying period.

' 3. And it is in direct conflict with the explicit statement in the policy itself, specifically referred to in the rider, that the $10,-80 of double indemnity premium is part of the $207.30 paid as the premium “for the period terminating May 6, 1922,” that is, for the entire first year after the issuance of the policy. Manifestly as the accident premium was paid, as is thus recited, for the entire first year, liability therefor is not to be denied unless plainly required by the clear construction of the language used.

On the other hand the clause may, it seems,' be reasonably construed by referring the phrase “and not less than one year from the date thereof” to the phrase “during the premium-paying period,” which it immediately succeeds — being, in fact, a part of the same general connected phrase — and treating the word “thereof” as referring to “the premium-paying period” to which undoubtedly it grammatically relates. The words “premium-paying period,” while not otherwise used or specifically defined, obviously relate, in my opinion, to the period in which the insured was not relieved from the payment of premiums under the preceding Disability Benefit provision, being part of the same rider, and obviously printed for use in connection with the Double Indemnity Benefit provision. Under the Disability Benefit provision, the insured was relieved from the paying of premiums upon incurring a disability, as therein defined, and so long as such disability continued. The period in which there was no such disability would therefore be the “premium-paying period”; while th^t in which a disability existed and continued would not be a “premium-paying period.”

So construed, the Double Indemnity benefit would not apply, if accidental death occurs during a period of the insured’s disability which would not be a “premium-paying period”; in which there would probably be an increased likelihood of accident, and in which the insured would not only not-pay the double indemnity premium, but would also receive a monthly income from the Company. And further, if the phrase “not less than one year from the date thereof,” relates to the premium-paying period, then it would also seem to have been intended in case a disability once incurred thereafter terminated, and the premium-paying period was thereby reinstated, the Double Indemnity Benefit -would still not apply if accidental death, occurred within one year after the resumption of the premium-paying period, while there would still probably be an increased likelihood of accident.

So far as the ease of an accidental death occurring during a period of disability, that is, a nonpaying-premium period, is concerned, this construction of the clause seems to me quite clear, and the most reasonable construction that can be given, consistent with the language of the provision. This construction is, I think, emphasized by the specific language of the proviso in reference to the non waiver of any premium under a disability provision; this proviso being, as I view it, inserted by way of precaution to guard against any other construction of the clause and not as an exception therefrom, just as out of like precaution it was inserted in the same proviso that this provision should only attach if the accidental death occurred when the policy was in full force. So far as this construction of the clause relates to the period of one year after the termination of a disability, it is not so clear, but in this respect, I think it is just as clear and reasonable a construction as that which would limit the effective .date of the Double Indemnity to one year after the date of the policy, is more consistent with the gramma/-tical construction of the clause and less obviously in conflict with its other provisions. But to say the least, I think the clause in question is ambiguous, and certainly gives room to more than one construction. It is accordingly, under the well settled rule of construction above cited, to be construed most strongly against the insurer and as not depriving the beneficiary of the right to the double indemnity because the death of the insured occurred less than one year from the date of the policy.

Am. order will accordingly he entered over-» ruling the demurrer.


author: KNAPPEN, Circuit Judge.

text:
    AMERICAN CENT. LIFE INS. CO. v. AMERICAN TRUST CO.
    (Circuit Court of Appeals, Sixth Circuit.
    April 6, 1925.)
    No. 4224.
    I. Appeal and error <©=15 — Separate judgments consolidated for trial, and by stipulation considered as one for purpose of review, may be reviewed on one writ of error.
    In separate actions on insurance policies consolidated for trial, where beneficiaries were represented by same guardian and by order of District Court, made upon stipulation of coun sel, cases are considered as one for purpose of review and as requiring but one bill of exceptions, one record, one writ of error, etc., the Circuit Court of Appeals will exercise jurisdiction to review the judgments.
    2. Insurance <@=I46(3) — Ambiguous words in Insurance policy construed most strongly against insurer.
    Ambiguous words used by insurer in policy prepared by its attorneys, officers, or agents, must be construed most strongly against it.
    3. Insurance <@=I46(2) — Each word of policy presumed to have purpose.
    Each word of an insurance policy must be presumed to have a purpose and be given effect.
    4. Insurance <@=529 — Life policy, containing double indemnity benefit in case of accidental death, held to cover accidental death within one year of policy date; “premium-paying period.”
    Life policy, containing disability benefit provision waiving payment of premium during disability of insured and containing double indemnity benefit clause which provided, in case of accidental death, payment of double face amount of policy on proof that death of insured occurred “during the premium-paying period and not less than one year from the date thereof,” held to cover accidental death within one year of date of policy; the words “premium-paying period” relating to period in which insured was not relieved from payment of premiums under preceding disability benefit provision.
    5. Courts <§=99(1) — That judge adopted construction placed on contract by predecessor, without personally passing on contract, held no ground of error.
    Contention of plaintiff in error that trial judge, in construction of insurance policy, adopted construction of his predecessor without himself personally passing upon the contract, held without merit; such judge not being required to reject his predecessor’s construction, and the important question being correctness of construction ultimately adopted.
    6. Appeal and error <@=1056(5) — Rejection of testimony, in action tried before court, held not ground of error, where ail testimony was taken and appears in record.
    In action on insurance policies tried before court without jury, where testimony was all taken and appears in record on review, the rejection by trial court of certain expert evidence held not error.
    In Error to the District Court of the United States for the Middle District of Tennessee; John J. Gore, Judge.
    Separate actions on insurance policies hy the American Trust Company, as guardian, against the American Central Life Insurance Company, consolidated for trial. Judgment for plaintiff (5 E.[2d] 69), and defendant brings error.
    Affirmed.

      , Thomas J. Tyne, of Nashville, Tenn. (Tyne, Peebles & Tyne, of Nashville, Tenn., and Cox, Welliver & Walsh, of Indianapolis, Ind., on the brief), for plaintiff in error.
    T. T. MCCarley, of Nashville, Tenn. (Harry A. Luck and J. G. Stephenson, both of Nashville, Tenn., on the brief), for defendant in error.
    Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.
   KNAPPEN, Circuit Judge.

Plaintiff in error (hereinafter called defendant or the insurer) issued three separate policies of insurance of $5,000 each upon the life of Edward D. Moseley, payable at his death. Two of the' policies were dated May 6, the third May 27, 1921. Each policy named as beneficiary a different child of the insured. The policies were identical except as to the beneficiary, and, as thus far stated, were ordinary life insurance policies regardless of the cause of death, except as to suicide within two years. To each policy, however, was attached a so-called “total and permanent disability benefit” rider, which, in consideration of an annual premium of $14.10, included in the annual premium of $207.30, stated in the policy, provided in substance that if, while no premium is in default, the insured, before attaining 60 years, becomes so disabled as. to be prevented (and presumably permanently) from work for compensation or following any gainful occupation, and continues so disabled for at least 60 days, the insurer will waive the payment of each premium thereafter becoming payable under the terms of the contract, and will pay the insured after six months a monthly income of $50 during the continuance of such disability or until the face of the policy becomes payable. The disability benefit premium ($14.10) was to cease when the insured became 60 years of age, the total premium to be thereupon reduced by that amount. The “disability benefit” rider was immediately followed by a so-called “double indemnity benefit” rider (printed as part of the sheet which contained the “disability benefit” provision), declaring that “the company will pay double the face amount of this policy .to the beneficiary named therein upon its surrender accompanied by due proof that the death of the insured occurred ckcring the premium-paying period and not less than one year from the date thereof, and before attaining age 65; in direct consequence of bodily injury effected solely through external, violent and accidental means, and that such death occurred within 90 days after sueh injuries were .sustained; provided, that no premium is due and unpaid or has been waived under any disability provision and that this policy is then in full force.” The “double indemnity” premium ($10.80) was also included in the total premium of $207,-30, and was to cease when' the insured became 65 years of age; the _ total premium thereafter to be • reduced by that amount. The insured died December 3, 1921, before attaining the age of 65, in direct consequence of bodily injuries effected solely through external, violent, and accidental means, and within 90 days after the injuries were received and while the policy was in full force and effect, and while no premiums were due and unpaid. No premium had been waived under the disability provision.

Defendant admitted liability for the face amount of each policy ($5,000), but denied double liability upon the ground that the death occurred within one year from the date of the policy. Separate suits upon the respective policies were consolidated for trial, and judgment rendered for 'double liability. The controversy relates solely to the construction of the limitation clause “during the premium-paying period and not less than one year from the date thereof”; that is to say, whether this clause means, as defendant contends, within one year from the date of the policy, or whether, as the District Court concluded (trial by jury was waived), the words “premium-paying period” meant the period in which the insured was not relieved from the payment of premiums under the preceding “disability benefit” provision.

We. think the District Court rightly construed the double indemnity contract, and we are content to base this conclusion substantially upon the course of reasoning adopted by then District Judge Sanford in his memorandum opinion overruling the demurrer to the declaration.' 5 F.(2d) 69.

It seems very clear that the rider in question does not unambiguously exclude the beneficiary’s right to double indemnity from eases where death shall occur within less than one year from the date of the policy. On the contrary, the words “not less than one year from the date thereof” grammatically relate to the immediately preceding “premium-paying period,” and not to the word “policy,” which occurred more than thirty words before. To say the least, we think a reading of the entire paragraph would not suggest to the unskilled policyholder that the double indemnity for which he was in terms paying a special premium, in addition to what would otherwise be the policy premium, had no application during the year for which such payment was being made; and we think the natural impression to the contrary is not disturbed by the fact that separated by at least 25 words from “thereof” the word “therein” (following “named”) and “its” (preceding “surrender”) related to “policy” and not to “premium-paying period,” which had not up to that time occurred in the double indemnity rider. Had it been the intention to exclude double liability during the first year of the policy’s existence, we think the insurer would naturally have said “not less than one year from the date hereof” or “from the date of this policy.” At this point, it is enough to say that the intention to limit double indemnity to eases of death in a subsequent year was not unambiguously expressed. That being so, the rule is fundamental that the words used by the insurer, in a policy prepared by its attorneys, officers, or agents, must be construed most strongly against it. Liverpool Ins. Co. v. Kearney, 180 U. S. 132, 136, 21 S. Ct. 326, 45 L. Ed. 460. We are not impressed by defendant’s contention (in effect) that even if the word “thereof” relates to “premium-paying period,” a construction that the double indemnity does not apply during the first policy year is sustained by the testimony regarding insurance terminology, which, as rightly construed, we think means only that the “premium-paying period” begins with the inception of the insurance contract. Indeed, except as specifically provided by the disability rider, death, in order to ereate liability, must occur during the premium-paying period. But it does not follow that the “premium-paying period” is synonymous with “date of policy,” which would be the required meaning if the contention of defendant we are now considering is to be accepted; and it is equally clear that “premium-paying period” is not synonymous with “beginning of premium-paying period.” .

Again, it is a well-settled rule of construction that effect must be given to each word, and that each word must be presumed to have a purpose. Yet, if defendant is right in its construction of the contract, the words “during the premium-paying period” are entirely superfluous; for if those words were omitted, and defendant’s construction of the time limitation is correct, recovery of double indemnity would be denied if premiums were not seasonably paid — this by virtue of the concluding clause “provided that no premium is due and unpaid or has been waived under any disability provision and that this policy is then in full force.”

But even more important than this, were it not for the words “during the premium-paying period,” contained in the double indemnity rider, and the construction placed thereon by the District Court, the literal language of the proviso just quoted would forbid double indemnity in any case where a premium had been waived under the disability benefit rider, which, as already stated, immediately preceded the double indemnity rider — even though payment of premiums had been resumed as provided by the first mentioned rider.

It thus seems clear that the words “premium-paying period” had an important meaning, wholly apart from date or life of the policy; and we are constrained to agree with the District Court that the words “and not less than one year from date thereof” were intended to refer (as on their face they grammatically would refer) to the immediately preceding phrase “during the premium-paying period”; and that this latter expression should be considered in connection with the accompanying double disability provision, which expressly provides for waiver of premium payments during total disability and for cessation of such waiver when the assured becomes able to “perform any work for compensation or profit, or to follow any gainful occupation”; and thus by necessary implication for a return to premium paying. *We print in the margin an excerpt from Judge Sanford’s pertinent state ment of the results of the construction adopted by him.

Plaintiff invokes the principle that where a contract of insurance is issued for a premium charged for a definite time, liability for indemnity will attach, notwithstanding the policy contains a provision that the insurer will not be liable for death occurring during such period (Summers v. Fidelity Association, 84 Mo. App. 605, 610), and cites the fact that in the instant case the double liability premium for the first year was paid.

As against this contention, defendant invokes New York Life Insurance Co. v. Statham, 93 U. S. 24, 23 L. Ed. 789, which holds that a policy of insurance for life which stipulates for the payment of an annual premium by the assured during the continuance of the policy, with a condition to be void on nonpayment, is not aii insurance from year to year, like a common fire policy; but that the “premiums constitute an annuity the whole of which is the eonsidera-ticsn for tbe entire insurance for life; and tbe condition is a condition subsequent, making, by its nonperformance, tbe policy void.”

On tbe other band, the policies here in suit contain this express provision: “Tbe first year’s insurance under this policy is term insurance, purchased by tbe whole or part of the premium to be received during tbe first policy year, and tbe policy shall be valued according to its terms and tbe laws of tbe state of Indiana.” Defendant offered testimony that tbe words “first year’s insurance” were inserted in tbe policy merely for the purpose of determining the reserve value and “in no way affect tbe right or interest of tbe insured or tbe company in their relations to each other.” It also appears that by calling tbe first year’s insurance “term insurance” tbe required reserve to be maintained by the insurer would be reduced by nearly one-half. There seems to be force in plaintiff’s contention that tbe instant ease is not controlled by tbe Statbam ease; but in view of tbe conclusion otherwise reached we find it unnecessary to pass upon that question.

There is no merit in defendant’s complaint that tbe trial judge, who bad succeeded Judge Sanford, adopted tbe latter’s construction of tbe contract without himself personally passing upon it. Granting that tbe trial judge bad the legal right to reject bis predecessor’s construction (Messinger v. Anderson, 225 U. S. 436, 32 S. Ct. 739, 56 L. Ed. 1152), be was not bound to do so. Tbe record does not indicate that be disagreed therewith. The important question here relates only to tbe correctness of tbe construction ultimately adopted.

Nor do we find any merit in defendant’s complaint of tbe rejection by tbe trial court of some of the expert evidence offered as to tbe meaning of certain insurance terms. Tbe testimony was all taken and is in tbe record. Its formal admission could not change tbe result otherwise arrived at.

Tbe judgment of the District Court in. each of tbe three cases is affirmed.

       All italics in this opinion ours.

       The three beneficiaries were represented by the same guardian. By order of the District Court, made upon stipulation of counsel, the three cases are considered as one for the purpose of review, and as requiring but one bill of exceptions, one record, one writ of error, etc. We think it our duty to exercise jurisdiction to review the judgments. Brown v. Spofford, 95 U. S. 474, 485, 24 L. Ed. 508; Louisville Co. v. Summers (C. C. A. 6) 125 F. 719, 720, 60 C. C. A. 487; Tosh v. Coal Co., (C. C. A. 6) 252 F. 44, 46, 164 C. C. A. 156, 15 A. L. R. 376.

       This fact is here cited only as affecting the natural construction of the rider, and wholly apart from the question of the legal effect of such payment later referred to. As Judge Sanford said: “Manifestly as the accident premium was paid, as is thus recited, for the entire first year liability therefor, is not to be denied unless plainly required by the clear construction of the language used." See Insurance Co. v. Drach, 101 Pa. 278, 283.

         The premiums were paid May 27, 1921.

       “Under the disability benefit provision, the insured was relieved from the paying of premiums upon- incurring a disability, as therein defined, and so long as such disability continued. The period in which there was no such disability was therefore the ‘premium-paying period’; while that on which a disability existed and continued would not be a ‘premium-paying period.’ So construed, the double indemnity benefit would not apply if accidental death occurs during a period of the insured’s disability, which would not be a ‘premium-paying period’; in which there would probably be an increased likelihood of accident, and in which the insured would not only pay the double indemnity premium, but would .also receive a monthly income from the Company. And further, if the phrase ‘not less than one year from the date thereof relates to the premium-paying period, then it would also seem to have been intended that in case a disability once incurred thereafter, .terminated, and the premium-paying period was thereby reinstated, the double indemnity benefit would still not apply if accidental death occurred within one year after the resumption of the premium-paying period, while there would still probably be an increased likelihood of accident.”