author: SMITH, District Judge.

text:
    LORENZ et al. v. COLGATE-PALMOLIVE-PEET CO.
    No. 5758.
    District Court, D. New Jersey.
    June 5, 1945.

      Edward Maxson, of New York City (Malcolm Wilson, of White Plains, N. Y., and John Lane, of New York City, of counsel), for plaintiffs.
    Wall, Haight, Carey & Hartpence, of Jersey City, N. J. (Frank E. Barrows and Roger T. McLean, both of New York City, of counsel), for defendant.
   SMITH, District Judge.

This is a civil action under Section 4918 of the Revised Statutes, 35 U.S.C.A. § 66, and is before this Court for retrial, having been remanded by the Circuit Court of Appeals for further proceedings in conformity with its opinion, 3 Cir., 122 F.2d 875. The history of this litigation is adequately summarized in the said opinion, and we shall therefore recount only those events necessary to a proper understanding of the only remaining issue.

Lorenz, one of the plaintiffs, having conceived a process for the manufacture of soap and the recovery of glycerine, filed his application for a patent thereon on January 24, 1920. The application was finally rejected by the Patent Office on November 22, 1927. Lorenz failed to respond to this action within the period prescribed by the statute, R.S. § 4894, 35 U.S.C.A. § 37, and on May 28, 1928, the said application was held to have been abandoned for want of prosecution.

Ittner, an employee of the defendant, having allegedly conceived a process for the manufacture of soap and the recovery of glycerine, filed his application for a patent thereon on February 19, 1931. The patent, No. 1,918,603, issued to the defendant, the assignee of Ittner, on July 18, 1933. Nineteen of the twenty-two claims of this patent embodied the disclosures of the Lorenz application.

Lorenz, upon learning of the Ittner patent, filed with the Commissioner of Patents a petition to revive his original application. This petition was denied. On November 8, 1934, more than a year after the issuance of the Ittner patent, Lorenz filed a new patent application in which he adopted as his claims the claims of the Ittner patent.

Thereafter, pursuant to the provisions of the statute and the rules of the Patent Office, an interference was declared and proceedings therein were duly instituted. The Examiner of Interferences, having determined that Lorenz was the original inventor of the process, awarded him priority of invention on the subject matter of nineteen of the twenty-two claims in issue. Patent No. 2,084,446, embracing nineteen claims, was issued to the plaintiffs on June 22, 1937. The present action followed.

The only issue presented for adjudication at this time, under the mandate of the Circuit Court of Appeals, is the issue of patent validity. It is asserted by the defendant, but controverted by the plaintiffs, that the Lorenz patent is invalid because of (1) prior public use, (2) anticipation by prior patents, (3) prior invention by others, and (4) abandonment of the invention.

Lorenz Patent

The process of the patent is therein defined in claim 3, which is typical, as follows : “The process of making soap * * * and glycerine which consists in heating a mixture of low grade fat and a base to a temperature in excess of the melting point of the resulting anhydrous soap and thoroughly agitating the mixture in an atmosphere free of cár, while intimately contacting the mixture under diminished pressure with a stream of water vapor.” (Emphasis by the Court.) Claims 1, 6, 7, 11 and 14, quoted in the annexed appendix, are representative of the other claims, which embody nothing more than obvious modifications of the process as thus defined.

The invention, as defined in the quoted claim and described in the specification, embodies several elements, new and old, in a novel combination. The essence of the invention, however, resides not only in the particular combination of elements but also in the novel concept of effecting the saponification of the fat under reduced pressure and at high temperature (a temperature in excess of the melting point of the resulting anhydrous soap — a temperature above 150° centigrade but preferably within the range of 250° and 270° centigrade), in an atmosphere free of air. The other elements of the invention, steam agitation of the mixture and vacuum distillation of the glycerine, were concededly old and well known in the art, but their embodiment in a unitary process for the manufacture of soap and the recovery of glycerine appears to be new.

It should be observed that in the practice of the earlier processes in common use, the saponification of the fat was effected under atmospheric pressure and at moderate temperature (a temperature below the melting point of anhydrous soap), in the presence of air. These processes were carried out in open kettles, and, it was generally recognized that in the presence of air high temperatures caused pyrolysis, or decomposition of the soap and glycerine. There were inherent in the earlier processes other disadvantages which affected the economy of manufacture, but it seems unnecessary to discuss them.

It is our opinion, predicated solely upon the present record, that the process of the patent, measured by the commonly accepted criteria, was an invention within the meaning of the statute. The saponification of fats and oils under the prescribed conditions was an improvement on the earlier processes and a departure from the prior art. The invention, however, was not patentable because of its public use “more than two* years prior to” the application for the patent.

Statute

The defenses here urged against the validity of the patent rest on Section 4886 of the Revised Statutes, 35 U.S.C.A. § 31, which, at the time the patent issued, provided: “Any person who has invented or discovered any new and useful art, * * * or any new and useful improvements thereof, * * * not known or used by others in this country, before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, * * * may, * * * nbtain a patent therefor.” We have herein emphasized only the apposite provisions.

Public Use

It clearly appears from the undisputed testimony and the documentary evidence offered in support thereof that the process of the patent was in public use in the factory of the defendant from November 1931 until November 1932, approximately one year, but more than two years prior to the Lorenz application of November 8, 1934. This use was preceded by several months of experimentation, but commercial production of soap and glycerine by the process of the patent was accomplished in November of 1931 and continued thereafter until 1932, when the use of the process was either discontinued or abandoned.

This public use, although it did not enrich the art, was sufficient under the statute to preclude the issuance of a valid patent. Electric Battery Co. v. Shimadzu, 307 U.S. 5, 59 S.Ct. 675, 83 L.Ed. 1071; Smith & Griggs Mfg. Co. v. Sprague, 123 U.S. 249, 8 S.Ct. 122, 31 L.Ed. 141; Egbert v. Lippmann, 104 U.S. 333, 26 L.Ed. 755; Paraffine Cos. v. McEverlast, Inc., 9 Cir., 84 F.2d 335; Grasselli Chemical Co. v. National Aniline & Chemical Co., 2 Cir., 26 F.2d 305. The patent is therefore void for this reason, if for no other.

The plaintiffs contend that the use of the invention by the defendant was experimental. This contention, however, is not supported by the evidence. The public use of the invention having been established by competent and persuasive proof, the burden was on the plaintiffs to prove that it was experimental and not “public” within the meaning of the statute. Smith & Griggs Mfg. Co. v. Sprague, supra; Aerovox Corporation v. Polymet Mfg. Corporation, 2 Cir., 67 F.2d 860; Wendell v. American Laundry Machinery Co., 3 Cir., 248 F. 698, 699; Guy v. Stein, 7 Cir., 239 F. 729, 733; American Ballast Co. v. Davy Burnt Clay Ballast Co., 7 Cir., 220 F. 887, 889. The plaintiffs failed to sustain this burden.

It must be noted that the public use of the invention was subsequent to the application of January 24, 1920, but prior to the application of November 8, 1934. This fact, however, is not a bar to the statutory defense here raised. The former application having been abandoned, the latter application may not be regarded as a continuation. U. S. Rifle & Cartridge Co. v. Whitney Arms Co., 118 U.S. 22, 6 S.Ct. 950, 30 L.Ed. 53; Rosenberg v. Carr Fastner Co., 2 Cir., 51 F.2d 1014, certiorari denied 284 U.S. 652, 52 S.Ct. 32, 76 L.Ed. 553; Detroit Iron & Steel Co. v. Carey, 6 Cir., 236 F. 924; Lay v. Indianapolis Brush & Broom Mfg. Co., 7 Cir., 120 F. 831. The public use sufficient to invalidate the patent must be computed from the date of the application upon which the patent issued. Ibid.

Anticipation

The defendant rests the defense of anticipation on several foreign patents and one domestic patent. It is our opinion, after careful consideration of each of the cited references, that their respective disclosures are insufficient to sustain the defense. It is well established that a patent relied upon as an anticipation must be clear and unequivocal; it must disclose adequate directions for the practice of the invention and without resort to the patent in suit. Dewey & Almy Chemical Co. v. Mimex Co., 2 Cir., 124 F.2d 986; Williams Iron Works Co. v. Hughes Tool Co., 10 Cir., 109 F.2d 500; Southern Phosphate Corporation v. Phosphate Recovery Corporation, 3 Cir., 102 F.2d 801; American Safety Table Co. v. Singer Sewing Machine Co., 3 Cir., 95 F.2d 543; certiorari denied 305 U.S. 622, 59 S.Ct. 82, 83 L.Ed. 397; Worthington Mower Co. v. Gustin, 3 Cir., 80 F.2d 594, certiorari denied 297 U.S. 725, 56 S.Ct. 500, 80 L.Ed. 1008; Skelly Oil Co. v. Universal Oil Products Co., 3 Cir., 31 F.2d 427; Carson v. American Smelting & Refining Co., 9 Cir., 4 F.2d 463. None of the cited references meets this test.

Prior Invention by Others

It is urged by the defendant that the invention of the patent in suit was disclosed in earlier patents, to wit, the Beck Patent No. 1,965,566; the Clayton Patent, No. 2,037,006; and the Schellmann Patent, No. 2,056,984. These patents do not disclose the invention of the patent in suit, although their respective inventions embody similar elements.

“A patent regularly issued, * * *, is presumed to be valid until the presumption ñas been overcome by convincing evidence of error. * * * Sometimes it is said that in a suit for infringement, when the defense is a prior invention, ‘the burden of proof to make good this defense’ is ‘upon the party setting it up,’ and ‘every reasonable doubt should be resolved against him.’ * * * Again it is said that ‘the presumption of the validity of the patent is such that the defense of invention by another must be established by the clearest proof — perhaps beyond reasonable doubt.’ Austin Machinery Co. v. Buckeye Traction Ditcher Co., 6 Cir., 13 F.2d 697, 700.” Radio Corporation v. Radio Engineering Laboratories, 293 U.S. 1, 7, 55 S.Ct. 928, 931, 79 L.Ed. 163. The defendant has failed to sustain the burden of proof.

Abandonment of Invention

It clearly appears from the evidence that the plaintiff Lorenz, although he abandoned his original application, did not abandon his invention.

Additional Claims

Claims 16 and 17 cover a “process of separating glycerine from a mixture of soap and glycerine.” The process is described in claim 17 as follows: “The process of separating glycerine from a mixture of soap and glycerine which consists in heating said mixture uniformly without local overheating to a temperature producing an appreciable vapor pressure of glycerine, thoroughly agitating said mixture, excluding air, intimately contacting said mixture with a stream of water vapor, and removing the resulting mixed vapor of water and glycerine and condensing the same while carrying on the whole at diminished pressure.” These claims are void because of anticipation by and lack of invention over the prior art.

Conclusion

The patent in suit, No. 2,084,446, is void for the reasons herein stated.

Appendix

“1. The process of making soap and glycerine which consists in heating a mixture of fat and a base to a temperature in excess of the melting point of the resulting anhydrous soap and thoroughly agitating the mixture in an atmosphere free of air while intimately contacting the mixture with a stream of water vapor.”

“6. The process of completely saponifying fat and of separating the resulting glycerine in vapor form from the soap which comprises uniformly heating a mixture of fat and an alkaline medium to a temperature in excess of the melting point of the resulting anhydrous soap while contacting the said mixture with a stream of water vapor at low pressure, excluding air, and condensing the glycerine.”

“7. The process of completely saponifying fat and of separating the resulting glycerine in vapor form from the soap which comprises uniformly heating a mixture of fat and an alkaline medium to a temperature above 150 degrees C. while contacting the said mixture with a stream of water vapor at low pressure, excluding air, and condensing the glycerine.”

“11. The process for the manufacture of soap and glycerine consisting in the treatment of fats or fatty oils with an alkaline medium sufficient to effect saponification, the subjection of the composition thus formed to heat, without local overheating, to a temperature in excess of 200 degrees C., with the aid of agitation, with the exclusion of air, with a current of steam, in a closed vessel with the aid of diminished pressure for the volatilization and recovery of the glycerine produced, and for the volatilization and removal of volatile impurities.”

“14. The process of saponifying esters of fatty acids to produce soap and alcohol and of separating the resulting alcohol in vapor form from the soap, which comprises uniformly heating the mixture of esters of fatty acids and an alkaline medium to a temperature in excess of the melting point, of the resulting anhydrous soap while contacting said mixture with a stream of water vapor at low pressure, excluding air, thoroughly agitating the whole, and condensing the alcohol so formed.”

       “Referring more particularly to the parts, and describing the process more fully, I may say that one method of carrying out my process is to mix the oil or fat with a suitable quantity of alkali dissolved in an appropriate quantity of water (or mixing the oil or fat with finely divided alkali more or less in the dry state) in an enclosed kettle or still connected with a condenser, condenser worm or coil (disposed within a Condensing chamber in which the condensing operation is conducted in the usual way) and distillate recepta-' ele or receiver, the whole being enclosed and forming a vacuum circuit. It is understood that the receiver is in turn connected by a pipe with a vacuum pump through the manipulation of which a vacuum may be maintained or produced in the system.
      “Obviously the mixture of the oil or fat with the alkali can be made in a separate vat or tank by agitation or otherwise and then drawn into the retort or distilling chamber. The retort is now heated in excess of 150° C., preferably up to 250° to 270° Centigrade, in any suitable manner, with superheated steam coils, or otherwise, and the Vacuum, Pump put in operation. The water, glycerine and a small percentage of volatile oil * * * will distill over, the soap formed remaining in the retort as a dry mass.” (Anhydrous but molten) “During the cooling of the soap mass I have found it important not to admit any air into the retort, otherwise the soap will turn brown in color. To facilitate the distillation of the glycerine from the soap mixture, I may elect to pass steam preferably superheated, through the soap mixture in the retort. This operation will, of course, thoroughly agitate the mixture. The condensed water from the steam in this case will pass into the condensing receptacle that receives the glycerine and volatile oil.” (Etophasis by the Court.)

       Belgian Patent No. 6979; German Patent No. 559,632; German Patent No. 559,732 ; British Patent No. 380,707; and French Patent No. 731,307.

       West Patent No. 268,443.


source: Caselaw Access Project

author: LEIBELL, District Judge.

license: Public Domain

text:
    UNITED SERVICES LIFE INS. CO. v. FARR et al.
    District Court, S. D. New York.
    April 21, 1945.

      Murray, Kissam & Hayden, of New York City (Charles E. Powers, of New York City, of counsel), for plaintiff. .
    Henry Woog; of New York City, for defendant Farr.
    Edward Thomas Moore, of New York City, for defendant Morrissey.
    Parmly, Stetson, Woodward & Gaffney, of New York City (Warren N. Gaffney, of New York City, of counsel), for defendant Gallagher.
   LEIBELL, District Judge.

This is an action of interpleader brought by an insurance company under 28 U.S.C.A. § 41(26), naming as defendants the insured’s mother and aunt, who were the original beneficiaries of a policy of life insurance, and the widow of the insured, whom he later tried to substitute as a beneficiary. The proceeds of the policy ($5,-008.90) have been deposited by the insurance company with the Clerk of this Court.

On November 1, 1941, Edward J. Gallagher, a First Lieutenant in the 165th Infantry, Company D, while stationed at Fort McClellan, Alabama, applied for a $5,000 ordinary life insurance policy of the United Services Life Insurance Company, a privately owned insurance company having its home office in Washington, D. C., and organized under the laws of the District of Columbia. It. was not a government agency. Lt. Gallagher paid the initial monthly premium of $8.90 in cash at the time he made the application. At the request of the insured, the premiums under the policy were payable monthly by government allotment and at his request also the policy was issued as of December 1, 1941. It was received by Lt. Gallagher at Fort McClellan, Ala., from the soliciting agent, K. W. Kantz, on December 4, 1941. At that time Lt. Gallagher signed Exhibit 9, a post-card receipt for the policy, and gave the receipt to the agent, who returned it to the company. The policy named the insured’s mother, the defendant, Mrs. Agnes Gallagher Farr, and his aunt, the defendant, Mrs. Regina Morrissey, with whom he had lived since boyhood, as co-beneficiaries.

Under the terms of the policy (Ex. 1) the insured reserved the right to change the beneficiaries. The policy provides:

“Change of Beneficiary. — The Insured, subject to any assignment of this Policy duly filed with the Company, may designate a new beneficiary or beneficiaries from time to time by filing written request therefor at the Home Office, in such form as the Company may require; such change to take effect only when endorsed hereon by the Company at its Home Office during the lifetime of the Insured. * * *”

“Rights of Insured. — Subject to any endorsements hereon and to the rights of any assignee as above, the Insured, without the consent of the beneficiary, shall have the right to receive every benefit, exercise every option and enjoy every privilege conferred upon him by this Policy.”

On the back of the policy there is a printed form to be filled in at the Home Office in order to register a change of beneficiary. It is set up as follows:

“Register of Change of Beneficiary

Note No change, designation or declaration of change of Beneficiary shall take effect until endorsed on this Policy by the Company at the Home Office.

On April 18, 1943, Lt. Gallagher married the defendant, Mrs. Edward J. Gallagher, whom he had known since 1939, and to whom he had been engaged since November 10, 1941. At the time of the wedding, Lt. Gallagher was home on furlough from Hawaii, and his wife was able to be with him only until May 7, 1943, when he left the West Coast and returned to Hawaii.

On October 21, 1943, Mrs. Edward J. Gallagher received a V-mail letter from her husband, still in Hawaii, stating in part: “Been pretty busy during the past week. By the looks of things we’ll continue to be busy, but I’ll find time to write more often. Sent you a registered package day before yesterday. It contained a picture for your Aunt Kay and some insurance papers. I have had the beneficiary on the government policy changed to you. I also sent a letter to the insurance company in' Washington, D. C. to change the policy to you but as yet haven’t had a reply. Write them requesting a revised policy. Let me know what reply you receive.”

Mrs. Gallagher received the package on October 16, 1943, which contained all that the Lieutenant stated. She received only one letter from him after the V-mail letter. It was dated October 30, 1943. In addition to the expected expression of love for his wife, it states that he has “been going quite steadily lately” and that “there are times when it is just impossible to write regularly and there are going to be times in the future when I won’t be able to write as often as I would like to”. Lt. Gallagher was killed in action in the Central Pacific on November 21, 1943. His wife was notified December 10, 1943. (His application showed that his father was killed in the first World War.)

On December 12, 1943, Mrs. Gallagher wrote a letter (Ex. 3A) to the United Services Life Insurance Company stating that her husband had told her in a V-mail letter that he had directed the company to change the beneficiary of his policy to his wife. She requested the Company to notify her “whether the necessary change has been made or not”. An office stamp on the back of her letter shows that it was received by the Veterans’ Administration (a Government agency) on December 14, 1943. Another office stamp on the letter shows that the plaintiff insurance company did not receive the letter from the Veterans’ Administration until March 23, 1944.

Not having received an answer to her first letter, Mrs. Gallagher wrote a second letter (Ex. 3B) to the insurance company on January 12, 1944. Again she explained the circumstances of the change of beneficiary, and asked to be told whether or not the change had been made. To this inquiry, she received a reply stating that the company had no information as to the change of beneficiary. The reply is not in evidence. She wrote a third letter (Ex. 3C) on January 18, 1944, offering to submit to the company any further proof it might consider necessary. Apparently, the insurance company’s counsel wrote to Mrs. Farr, the mother of Lt. Gallagher, for there is in evidence (Ex. 4) a letter from her to the counsel, dated January 28, 1944. Part of this letter states: “This is to inform you that I was unaware of the existence of the above policy, but do recall that my son mentioned that he had named me beneficiary for some policy during 1941. It is requested that you inform me of the amount of this insurance and method of payment; also forward appropriate forms to file my claim.”

The counsel for the company also wrote a letter (Ex. D) to Mrs. Gallagher, the widow, on February 3, 1944, in which he stated:

“As our files do not indicate that a change of beneficiary notice ever was sent the insurance company by your husband, there is no alternative for me in the circumstances but to file an interpleader suit so that the court may determine who rightfully is entitled to the proceeds.

“However, I have taken the precaution of writing the Veterans’ Administration to inquire if a change of beneficiary notice executed by your husband erroneously was received in that quarter. It sometimes happens that mail directed to us has gone to the Veterans’ Administration. If there are any new developments from that source, I shall advise you.”

The present action of interpleader was started on February 26, 1944. It was stated at the trial in October 1944 that the plaintiff insurance company had not succeeded in finding the letter from Lt. Gallagher, although a thorough search had been made. Even after the case was reopened in December 1944 to receive additional evidence on another point, it was stated that further search had failed to disclose Lt. Gallagher’s letter to the insurance company requesting the change of beneficiary. A letter from the Veterans’ Administration dated January 11, 1945 (Ex. 12) states that a very thorough search of the records under the name of Edward Gallagher failed to show any erroneously filed correspondence directed to the United Services Life Insurance Company, except the aforementioned letter of December 12, 1943, written by Mrs. Gallagher which was removed from the record and forwarded to the company about March 20, 1941. It also appears that some correspondence of the insurance company with its soliciting agent has been mislaid, or at any rate it was not in the company’s files.

There has been no evidence showing when Lt. Gallagher’s letter to the insurance company was written, but that it was written I haven’t the slightest doubt. It must have been written some time between May 7, 1943, when the Lieutenant left the West Coast, and October 21, 1943, when his wife received the V-mail letter. A photostatic copy of the change of beneficiary made by Lt. Gallagher in his government insurance (Ex. C) is dated June 4, 1943 and is on a regular form of the Veterans’ Bureau. Apparently units of the Army keep such forms on hand at army posts. But forms for a change of beneficiary of a policy issued by a private insurance company, such as the United States Service Life Insurance Company, are not available at all camps and military outposts. “It has been the practice of the Company to provide these forms only upon the written request of the insured”, according to a letter addressed to the Court by the insurance company’s attorneys March 26, 1945.

In deciding who should receive the proceeds of the policy, on deposit with this Court, the first issue presented is this— what law governs the validity of the change of beneficiary. In determining that, I must follow the Conflict of Laws rule of the State of New York, in which this federal District Court is located. Klaxon Co. v. Stentor Co., 313 U.S. 487, at page 496, 61 S.Ct. 1020, at page 1021, 85 L.Ed. 1477; Griffin v. McCoach, 313 U.S. 498, at page 503, 61 S.Ct. 1023, at page 1025, 85 L.Ed. 1481, 134 A.L.R. 1462.

An insurance policy is a contract. “The New York rules of Conflict of Laws as to contracts are in great confusion. * * * At least five different ways of dealing with Conflict of Laws problems may be discerned”. I will quote three of them—

“1. In some cases, the courts have used a single factor or contact as by itself determining the state whose law is to govern.

“2. In other cases, the courts have employed alternative specific factors, using the one or the other depending on which one will save the transaction.

“3. In a large number of cases, the courts have determined the governing law of the contract according to the grouping or massing of factors deemed most important for the purpose in hand.” (Restatement of the Law of Conflicts of Laws, New York Annotations, p. 216.)

In Jones v. Metropolitan Life Ins. Co., 1936, 158 Misc. 466, 286 N.Y.S. 4, 6, Mr. Justice Sheintag discusses the New York Conflict of Laws rule in respect to contracts. The following is quoted from his opinion:

“The cases in New York take various positions on the question of which law governs the validity of a contract. In some, the place where the contract was made is said to be determinative. Straus & Co. v. Canadian Pacific Ry. Co., 254 N.Y. 407, 414, 173 N.E. 564; United States Mortgage & Trust Co. v. Ruggles, 258 N.Y. 32, 38, 179 N.E. 250, 79 A.L.R. 802. It is the opinion of an outstanding authority that this represents the present New Yoik rule, unless there is a clear indication that the parties meant the contract to be governed by the place of performance. 2 Beale, The Conflict of Laws (1935) 1157. The view that the place of making governs has as a necessary concomitant, the theory that the place where the contract was made is the place where the last act legally necessary to effectuate a binding agreement took place.

“Other cases maintain that the contract is governed by the law of the place of performance. Manhattan Life Ins. Co. v. Johnson, 188 N.Y. 108, 113, 80 N.E. 658, 9 L.R.A.,N.S., 1142, 11 Ann.Cas. 223; Jewell v. Wright, 30 N.Y. 259, 264, 86 Am.Dec. 372; Curtis v. Delaware, L. & W. R. R. Co., 74 N.Y. 116, 120, 30 Am.Rep. 271. Still other cases rely on the intention of the parties to determine which law governs the contract. Wilson v. Lewiston Mill Co., 150 N.Y. 314, 323, 44 N.E. 959, 55 Am.St.Rep. 680; Stumpf v. Hallahan, 101 App.Div. 383, 386, 91 N.Y.S. 1062, affirmed, 185 N.Y. 550, 77 N.E. 1196. The last position that the cases take is the one which assumes that it is the grouping of the various elements which have gone to make up the contract that determines which law-governs. Hooley v. Talcott, 129 App.Div. 233, 236, 240, 113 N.Y.S. 820; cf. Sliosberg v. New York Life Ins. Co., 244 N.Y. 482, 155 N.E. 749. This last position, in an extended form, has been espoused by an English authority as the method to be used in resolving conflict of law difficulties. Cheshire Private International Law, 183 et seq.”

One problem arising at the outset is whether the basic question — who is the beneficiary — is one of “interpretation” of the contract, or of “performance”. In Swift & Co. v. Bankers Trust Co., 1939, 289 N.Y. 135, at page 141, 19 N.E.2d 992, at page 995, a case involving the validity of certain checks drawn in one state and payable in another, Judge Lehman stated: “ ‘Interpretation’ of a contract and its manner of performance are so intertwined that the courts often determine pragmatically the question whether the law of the place where the contract was made or the law of the place where the contract by its terms is to be performed regulates particular matters which ‘bearing upon the interpretation’ of a contract are at the same time ‘connected with its performance.’ Per-haps pragmatic determination may in such cases be indicated by the nature of the problem, and the test whether one rule or the other produces the best practical result may be the safest guide in the search for the intention, actual or assumed, of the parties.”

But “the cases are not consistent on what law governs as to the person to whom the proceeds of an insurance policy are payable”. Restatement of the Law of Conflict of Laws, New York Annotations, p. 246. If the question- — who is the beneficiary — be considered a question of the interpretation of the policy, then the place of making the contract governs (32 Cor-' pus Juris § 7 at p. 977); and the place of making the insurance contract can be ascertained by determining the time when it was made, i.e. when the transactions be'came obligatory on the parties as a contract. Restatement of the Law of Conflict of Laws, § 317; New York Annotations, p. 220.

§ 317 of the Restatement and the comment thereunder read as follows:

“§ 317. Insurance Policy Delivered by Mail.

When an insurance policy becomes effective upon delivery by mail, the place of contracting is where the policy is posted.” “Comment:

“a. A contract of insurance is sometimes a formal contract. In case it is an informal contract, if the offer is accepted by mailing the policy, the place of contracting is determined by the rule stated in § 325. The acceptance, however, may be held to come earlier, when the proper officer or officers of the company accept the offer, or to come later, when the policy is delivered to the assured. The time at which a contract of insurance becomes effective is a question of the law of insurance.”

Section 325 referred to in the above comment reads as follows:—

“§ 325. Informal Bilateral Contract.

“In the case of an informal bilateral contract, the place of contracting is where the second promise is made in consideration of the first promise.”

The finely printed paragraphs of the application (immediately above the signatures of the applicant, Lt. Gallagher and the soliciting agent, K. W. Kantz) read as follows:

“I agree that this application Part 1 and 2 shall be the basis of a contract of insurance under any policy that may be issued pursuant hereto: That no statements, promises, or information made or given by or to the person taking this application, other than those contained herein, shall have any binding force on the Company; That the insurance hereby applied for shall not take effect until a policy shall have been actually delivered to and accepted by me, while I am in good health and the first premium shall have been paid or alloted to be paid during my continued good health. If, however, at the time of my signing the application, the full first premium is paid, then the insurance will take effect from the date of this application (subject to the provisions of the policy applied for), provided this application is approved at the Home Office of the company in Washington, D. C.

“That-my acceptance of said policy shall constitute a ratification by me of any additions or corrections which the Company may make in the sections and part I entitled ‘Corrections or Amendments’.

“Have you paid any portion of the premium hereon? If so, how much? $8.90 • — Did you receive the conditional receipt bearing same number as this application in return for above payment? Yes. — Dated at Fort McClellan, Ala. This 1st day of November, 1941.”

A sample of the “conditional receipt” above referred to (submitted to the Court as Exhibit 13 on March 26, 1945) is in the following form:

“Received from (Applicant) .....,..... Dollars, on account of application made this date to the United Services Life Insurance Company, Washington, D. C. If the sum collected at the time the application is signed is equal to the full first premium on the policy applied for and if such application is approved at the Company’s Home Office for the class, plan and amount of insurance there applied for, then the insurance applied for shall be in force from this date but.otherwise no insurance shall be in force under said application unless and until a policy has been issued and delivered, and the full first premium specified in the policy has actually been paid to and accepted by the Company during the lifetime and continued insurability of the applicant. The above sum shall be refunded if the application is declined or if a policy is issued other than as applied for and is not accepted by the applicant. This receipt is subj ect to the condition that any check or draft received may be handled for collection in accordance with the practice of collecting bank or banks, and this receipt shall be void if the full amount of such check or draft is not received by the company.

“Dated at-this-day of-, 19—

“Agent-

The closing paragraph of the policy, above the signatures of the President and Secretary of the Insurance Company, states: “In Witness Whereof, the United Services Life Insurance Company has executed this contract at Washington, D. C. as of December 1, 1941 from which date all policy years and anniversaries are to be computed.”

A form on the back of the policy states: “Date of Issue. Dec. 1, 1941.”

The statement in the application (item 6 thereof) requesting that the policy be dated December 1, 1941, has no bearing upon the question of where the contract was made. If that request had not been made the coverage would have dated back to November 1, 1941, because the first full premium had been paid with the application dated November 1, 1941. The change requested in the application and approved by the company was that the policy be dated December 1, 1941. In either case, whether the coverage was to be from November 1st or December 1st, 1941, the contract of insurance was made when the application was approved at the Home Office of the company at Washington, D. C, and it was there that the policy was executed December 1, 1941, by the officers of the company as stated in the policy. 32 Corpus Juris § 8 p. 979; Stone v. Penn Yan, K. P. & B. Ry., 197 N.Y. 279 at page 285, 90 N.E. 843, 134 Am.St.Rep. 879 ; 33 Harvard Law Review 303. Nothing further remained to be done to make it a binding insurance contract, and the law of the District of Columbia would apply to questions involving the interpretation of the contract. The steps later taken to deliver physical possession of the policy to the insured were not determinative of when or where the contract was made.

If the law of the place of performance governs in determining the effect to be given to the insurer’s efforts to change the beneficiary, then the law of the District of Columbia would again apply. The policy states that the Company “immediately upon receipt at its Home Office in the City of Washington, D. C., of due proof of the death of the Insured, occurring while this Policy is in force, agrees to pay Five Thousand Dollars ($5,000) at its Home Office in the City of Washington to” the beneficiaries who were named in the policy, the mother and aunt of the insured. It seems to be clear therefore that the District of Columbia was the place of performance of the insurance contract. See sections 358 and 366 of the Restatement of the Law of Conflict of Laws.

If the question of which law governs is to be determined by the most important groupings of the various elements that go to make up the contract then it seems that the law of the District of Columbia would again prevail. It was there that the Company was incorporated and had its home office; it was there that the insured’s application was approved; it was there that the policy was executed; and it was there that the allotments from the Lieutenant’s pay were to be applied to the payment of the premiums. Further, it was in the District of Columbia that the contract was to be performed by the Company. As against those elements we have the application signed by the insured in the State of Alabama, the first premium paid there in advance at the time the application was signed, and the policy delivered by the Company’s agent to the insured in that State. But the delivery of the policy by the agent was ministerial only, the contract having already been made when the application was approved and the policy issued at the home office in Washington, the first premium having been paid with the application. However, there is little difference between the law of the District of Columbia and that of the State of Alabama, as to the effect to be given to the insured’s efforts to change the beneficiary of a policy if he has done all that could reasonably have been expected of him under the circumstances.

There has been some discussion in the briefs of counsel on the question of when the policy was “delivered”. Although I believe it has no bearing in this case on the question of where the contract of insurance was made, I wish to express my reasons for concluding that the “delivery” of the policy took place at Fort McClellan, Ala. The policy was mailed from the home office of the insurance company at Washington, D. C. to K. W. Kantz, the soliciting agent. The agent Kantz personally delivered the policy to Lt. Gallagher at Fort McClellan, Ala., and had him sign a form of receipt printed on the back of a post-card (Ex. 9) reading as follows:

“United Services Life Insurance Co. Washington, D. C.

“Received of United Services Life Insurance Company, Policy No. 7070, this 4th day of Dec., 1941.

“Dated at Fort McClellan, Ala.

“Edward J. Gallagher

“Insured

“K. W. Kantz

“Witness

“Please Return This Receipt At Once”

The date was filled in by the' agent Kantz. The number of the policy 7070 appears to have been stamped by the same numbering machine as stamped the same number on the policy. The post-card receipt was mailed by Kantz in an envelope, from either Anniston, Ala./or Atlanta, Ga., to the insurance company at Washington, D. C., where it was received December 8, 1941.

The application for the policy, in item 26 of Part 1, contains the printed request “Send policy to - Address -”. In the space alongside the printed words is the name K. W. Kantz in the handwriting of Kantz. The application was signed by Lt. Gallagher. This gives rise to the question' — Whose agent was Kantz in receiving the policy? Concededly he was the soliciting agent for the insurance company. According to Kantz, the practice at the time was for the insurance company to mail policies to agents for delivery to the insured. That may be why he wrote in his own name as the person to whom the policy was to be sent.

Did Lt. Gallagher make Kantz his own agent to receive the policy, by signing an application containing the request that the policy be sent to Kantz? If he did, then the delivery of the policy to the insured was made when the policy was mailed at Washington, D. C., in an envelope addressed to the agent Kantz. See section 317 of the Restatement of the Conflict of Laws, which “is probably in accord with the law of New York”. N. Y. Annotations, p. 220. See also Justice Sheintag’s comments in Jones v. Metropolitan Life Ins. Co., supra.

The District of Columbia Code, § 35 — 704(5), prohibits the inclusion in a policy of “A provision to the effect that the agent soliciting the insurance is the agent of the person insured under said policy, or making the acts or representations of such agent binding upon the persons so insured under said policy.” The plaintiff insurance company was organized under the laws of the District of Columbia. The designation of the soliciting agent, Kantz, in the application for the policy, as the person to whom the policy was to be sent, would run counter at least to the spirit of the above provision of the District of Columbia Code, if Kantz is assumed to have been acting as the agent for the insured. If Kantz in receiving the policy was acting as the agent of the company, and I believe he was, then the mailing of the policy from the home office at Washington, D. C., to the agent Kantz, would not constitute a delivery of the policy at Washington, D. C. The delivery would be at the place where the agent in turn handed the policy to the insured, in the State of Alabama. See section 318 of the Restatement of the Conflict of Laws, which is in accord with the law of New York. N. Y. Annotations, p. 220.

Under the law of the District of Columbia and of the State of Alabama the provisions of the policy are liberally construed in recognizing an insured’s attempt to change the beneficiary of a policy, wherein the right to make the change is specifically reserved by the insured. If the insured has taken all reasonable steps required by him to be performed, even though the insurer has not completed all the mechanical or ministerial acts on its part, prior to the death of the insured, the change will be recognized.

In the District of Columbia it has been held that there are exceptions to the general rule that the insured is required to change the beneficiary of a life insurance policy according to the rules laid down by the insurer and as contained in the policy; among those exceptions are (1) if it is beyond the power of the insured to comply literally with the regulations, a court of equity will treat the change as having been legally made; (2) if the insured has pursued the course pointed out by rules of the insurer, and has done all in his power to change the beneficiary, but, before the new certificate is actually issued, he dies, a court of equity will treat such certificate as having been issued, and will decree accordingly. Requirements in a policy of the character which required the insured to surrender and return the policy for indorsement or issuance of a new certificate are made for the protection of the insurer, and if complied with to its satisfaction or if waived by it during the lifetime of the insured, cannot be availed of to support the claim of a former beneficiary. The beneficiary of a policy in which the right to change the beneficiary is reserved, receives no vested right, but only an expectancy which may be defeated at any time by the insured. Supreme Council of Royal Arcanum v. Behrend, 247 U.S. 394, 38 S.Ct. 522, 62 L.Ed. 1182, 1 A.L.R. 966; Berkeley v. Harper, 3 App.D.C. 308; Shenandoah Life Ins. Co. v. Hunter, 2 Dist.Ct.D.C.,N.S., 99.

In Alabama, too, the courts have held that where the insured has done everything in his power to change the beneficiary, and dies before the insurer performs its part in making the change, a court of equity will treat it as having been done. The specific requirements for effecting the change set up by the insurer are for its advantage, and if it fails to take advantage of it there is a waiver, and no one else may do so. Whitman v. Whitman, 225 Ala. 113, 142 So. 413, affirmed 226 Ala. 701, 147 So. 921; McDonald v. McDonald, 212 Ala. 137, 102 So. 38, 36 A.L.R. 761; Phillips v. Phillips, 240 Ala. 148, 198 So. 132.

Whether the law of the District of Columbia or that of the State of Alabama is applied, it has been sufficiently established that the insured took all the steps required of him and that he could reasonably be expected to take under the facts and circumstances surrounding his request to change the beneficiary. Sitting as a court of equity, full effect will be given to the clearly expressed intention of the insured to make his wife the beneficiary of the policy and he will be deemed to have accomplished that change, having done all that he could be expected to do while in the armed forces of his country, preparing for battle at a distance of some 5500 miles from the main office of the insurance company. His widow, Marie Gallagher, sued herein as Mrs. Edward J. Gallagher, named as a defendant herein, is entitled to the proceeds of the policy.

Lieutenant Gallagher’s use of a letter to the company, instead of some printed form, is immaterial because the policy requirements as to change of beneficiary are that the insured file “written request therefore at the Home Office in such form as the company may require”. Equity would not permit the insurer arbitrarily to reject a clear expression of the intent of the insured to change the beneficiary, nor to insist on the use of some special form, which would simply differ in language. The endorsement on the policy is a mere ministerial act of the company, since the change in beneficiary is no longer considered a change in the insured risk. Carnahan, Conflict of Laws and Life Insurance Contracts, 300.

In Prudential Ins. Co. of America v. Moore, 7 Cir., 145 F.2d 580, at page 581, Circuit Judge Evans stated:

“Passing on the necessity of the company’s notifying the insured of its recognition of a change in beneficiary before the change is effective, the courts of the land have spoken rather frequently. From a study of these decisions, we find the following statement to have the support of the great weight of authority.

“A change of beneficiary may be accomplished without a strict or complete compliance with the conditions of the policy regarding the endorsement of the insurer. The endorsement of a change of beneficiary by an insurer is purely a ministerial act which the company can not refuse to perform and a failure on its part to perform such act will not defeat the change, if the insured has done everything within his power to effect a change.” A footnote to the Court’s opinion contains a long list of cases to support that statement. See, also 37 Corpus Juris, § 350, p. 584.

“Neither logic nor policy requires such close attention to technicalities and sacrificing of substance for form. By the very reservation of the right to change the beneficiary, the insured has evidenced an intention to retain full control over the proceeds of the policy”. 42 Harvard Law Review p. 250. A footnote (No. 26), to the article from which the above is quoted, states: “The courts in war risk insurance cases have not required strict compliance with the regulations, and in some cases, desiring to carry out the insured’s intent, have been satisfied with evidence of intent.” Claffy v. Forbes, D.C.W.D.Wash.1922, 280 F. 233; Peart v. Chaze, D.C.W.D.La.1926, 13 F.2d 908.

The requirements of notice and endorsement are obviously for the protection of the company. Strict compliance with these requirements simplifies the work of the company and allows the company to make an immediate payment on proof of death to the beneficiary named in the policy. However, in situations like the present, disputed questions of law and fact come to the attention of the company before payment is made, which the company may not wish to resolve. Inter-pleader gives the company a procedure by which it can bring all of the parties into court, and have the questions of law and fact between the claimants resolved without any special consideration of the protection of the insurance company entering into their decision.

The courts should not be too exacting in insisting on formalities in the execution of legal papers by men in service, especially in the case of those who are about to enter a combat area (in expeditionibus) and are busy with military preparations, with very little time to look after their personal affairs. At such a time they naturally think of their obligations to those at home and of what effect their death in battle might have upon the fulfillment of those obligations. A soldier’s estate frequently is only his life insurance. For policies issued through the Veterans Administration for National Service Life Insurance there are available at the army station forms for the change of beneficiary, such as Exhibit C, which was executed by Lt. Gallagher June 4, 1943, in the presence of Capt. Morrell, a Personnel Officer of the 165th. That form probably was executed in Hawaii where the 165th was then stationed. Commercial life insurance companies do not maintain such a convenient service at army bases, with blank forms for the change of beneficiaries. Hence there is every reason for giving effect to the intention of the insured service man in making a change in the beneficiary of such a policy, if the intention is clearly expressed in the insured’s own handwriting, even though he has not complied with all the formalities required by the policy to effectuate the change. In deciding whether he has done all that he could reasonably be expected to do under the circumstances to comply with the technical requirements of the policy, we should try to place ourselves in his position.

It has been argued that Lt. Gallagher should have sent the policy to the insurance company direct, to have the change endorsed thereon. He had written a letter to the company and he had received no reply. That might explain why he did not forward the policy to the company. He sent the policy to his wife, registered mail,' together with some other papers, including a copy of his National Service Life Insurance policy, which he had also changed by naming his wife as beneficiary instead of his mother. He instructed his wife in the V-mail letter she received October 21, 1943 (Ex. A-l) to write the United Services Life Insurance Company “requesting a revised policy”, as he put it. It was no fault of Lt. Gallagher’s that his letter to the company was not received by the company. But there is no doubt that he wrote the company. If he had not, why did he write to his wife that he had written the company and why did he send her the policy and give her instructions to get a “revised policy” from the Company? His intention to make her the beneficiary is unchallenged by any evidence.

Even if his wife had acted promptly it is not certain that the proof she had of the insured’s request (the V-mail letter to his wife) would have satisfied the insurance company, or that the company would have endorsed the change of beneficiary on the policy, although in my opinion they should have done so. The fact that his wife’s delay is involved, should not militate against giving effect to the intention of the insured, her husband, that she should have the proceeds of the policy.

Perhaps she, too, did not understand all about the formalities required to change the beneficiary under the terms of the policy. How many people read their own life insurance policies? In this case the widow of Lieutenant Gallagher should not be penalized because she did not act more quickly. The V-mail letter she received from her husband bears a postmark showing that it arrived in New York on October 21, 1943. Lt. Gallagher was killed in action on an island in the Pacific one month later, November 21, 1943.

In a somewhat similar case, Matter of Hickey’s Estate, 1920, 113 Misc. 261, 184 N.Y.S. 399, 400, Surrogate Foley admitted to probate portions of two letters written by a soldier, dated May 26, 1918, and August 6, 1918, while in active service in the United States Army during the first World War. The letters were written while he was a patient in a hospital. He died October 20, 1918. In the opinion he filed in that case the Surrogate referred to an earlier New York ease in which a Captain’s letter to his sister had been admitted to probate as a valid will, and added “The theory of the law is that, from the absolute necessities of military .service, the solemn and formal rules as to testaments are relaxed in favor of soldiers.” However, a later ruling of the New York Court of Appeals in Re Zaiac’s Will, 1939, 279 N.Y. 545, 18 N.E.2d 848, held against the admission of a soldier’s letter as a holographic will, because it was not attested by two witnesses pursuant to the New York statute. But in May 1942 there was added to § 16 of the New York Decedent Estate Law, relating to nuncupative wills, a subsection which specifically provided that “A holographic will when written entirely in the handwriting of the maker even though the same be unattested”, is a.valid will. This amendment was discussed in an article on Soldiers’ and Sailors’ Wills published in Vol. 12, Ford-ham Law Review, p. 80, which gives the history of the very ancient dispensation granted soldiers and sailors in respect to wills made “in expenditionibus”, dating back to the time of Caesar’s Gallic Wars.

In the case of Claffy v. Forbes, supra, 280 F. 233, 235, Judge Neterer expressed this view in picturesque language: “Throughout the history of the civilized world, since the decrees of Julius Caesar, the intention and wish of the soldier, with relation to designation of beneficiary or disposition of property, killed in the line of duty, has been carried out when ascertained, whether it was scrawled in the sand with the point of his sword, or written on the scabbard of his sword or his shield (The Customs of Duchy of Burgundy, printed at Dijon, 1694, p. 410; Coutumes de Paris, column 51, Paris, 1714); and remedial justice requires, under the facts in this case, that the designation of the niece in the letter to the mother be established from the date of presentation to and record thereof by the Bureau of War Risk Insurance.”

The above statement was quoted and applied in Part v. Chaze, supra, 13 F.2d 908.

Both the District of Columbia and the State of Alabama have statutory provisions giving effect to the nuncupative wills of soldiers in actual military service, in disposing of personal property. Dist. of Col. Code, Title 19, § 201. Code of Alabama, Title 61, §§ 28-30.

The plaintiff insurance company will submit an appropriate decree herein awarding to the claimant, Marie Gallagher, sued herein as Mrs. Edward J. Gallagher, the proceeds of the policy on deposit with the Clerk of this Court, less the Clerk’s fees and less an allowance of $250 to the plaintiff for its costs, counsel fees and expenses in this interpleader action.


author: KENNEDY, District Judge.

text:
    LOPOCZYK v. CHESTER A. POLING, Inc.
    District Court, S. D. New York.
    Jan. 29, 1945.
    Purdy & Lamb, of New York City (Edmund F. Lamb and Thomas J. Irving, both of New York City, of counsel), for plaintiff.
    Alexander & Ash, of New York City (Joseph M. Meehan and. Sidney A. Schwartz, both of New York City, of counsel), for defendant.
   KENNEDY, District Judge.

This is a motion to set aside a verdict in the amount of $7500. The action was based upon the Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688.

The motion to set aside is based upon two grounds: (1) That the verdict was excessive and (2) that it was error to receive in evidence an entry from the log of the vessel describing the accident. These grounds will be dealt with in the same order as they are here stated.

Defendant’s contention that the verdict is excessive is based upon a number of reported cases. There have been cases where the injuries were somewhat similar to those in the case at bar and verdicts in the amount of $5000 were affirmed. Cf. Walldorf v. Central Greyhound Lines, Inc., 280 N.Y. 725, 21 N.E.2d 214. In one of the cases cited by the defendant, Appleton v. Nye, 243 App.Div. 852, 278 N.Y.S. 1012, where again the injuries were somewhat similar to those under consideration, a $10,-000 verdict was reduced to $6000. In the recent case of Herring v. Luckenbach S. S. Co., Inc., 2 Cir., 137 F.2d 598, Judge Knox granted a motion to set aside a verdict of $7500 unless the plaintiff consented to a reduction of the verdict to $4000. It is arguable that the injuries disclosed by the bill of particulars in that case were at least as serious as those in the case at bar. The jury could have found and doubtless did find in this case that the plaintiff sustained damage to his ear drum, concussion of the brain, fracture of the skull, fracture of the nose and a permanent brain injury. Plaintiff was incapacitated for five and one half months and his special damages amounted to $900.

It is familiar learning that the Court should not set aside a verdict on the ground that it is excessive unless it is so high as to shock the conscience. This rule is to be applied even where there is some feeling on .the part of the trial court that a smaller verdict would have been more appropriate. Zarek v. Fredricks, 3 Cir., 138 F.2d 689, 691. The principle is that if the Court should set aside the jury’s verdict in the absence of a showing of caprice, passion or prejudice, it would be usurping the jury’s function. Jordan v. Smyk, 262 App.Div. 414, 29 N.Y.S.2d 62. The power to set aside should be cautiously used because where pain and suffering and permanent injury are involved there can be no exact yardstick and the jury’s determination should stand unless it is clearly unreasonable. Malone v. Montgomery Ward & Company, Inc., D.C., 38 F.Supp. 369; Jones v. Atlantic Refining Co., D.C., 55 F.Supp. 17.

On this branch of the motion I cannot say that the verdict here was outrageous and obviously produced by passion and prejudice.

On the second branch of the motion defendant argues that the verdict should be set aside because there was received in evidence an entry in the log of the “Poling No. 2”, the vessel on which the accident happened. The entry in question was made by the master of the vessel about one hour and a half after the accident happened. He made an investigation and then made an entry in the log to the effect that “the u-bolt welded to the mast holding the boom let go in the weld.”

When this evidence was first offered I excluded it. It was clearly not part of the res gestae. I doubted that it could be considered an entry made in the regular course of business under the statute dealing with such entries (49 Stat. 1561, 28 U.S.C.A. § 695), because I was mindful of the ruling in Hoffman v. Palmer, 2 Cir., 129 F.2d 976, affirmed 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645, 144 A.L.R. 719. Later, and after the master had been called as a witness by the plaintiff, I overruled myself and took the evidence. I did so on the authority of Anthus v. Rail Joint Co., 193 App.Div. 571, 185 N.Y.S. 314, affirmed 231 N.Y. 557, 132 N.E. 887. I admit that the Anthus case is not strictly a pattern for the case at bar. The ruling in that case was based on the existence of a statutory duty to make reports. In the case at bar there was no analogous statute and indeed there may be some doubt whether here there was a duty to keep any log at all (see 31 Stat. 29, 46 U.S.C.A. § 201) because the vessel was engaged in inland traffic.

I do not decide that log entries either do or do not come under the regular entry rule. I hold that a log entry, even narrative in form, setting forth the circumstances of an accident on a vessel may be received as an admission. Wigmore, 3rd Ed., Sec. 1641; The Sandringham, D.C., 10 F. 556. Even though the entry is hearsay, the circumstances surrounding it are such as to render it hardly likely that it could be made up out of the whole cloth, and composed and entered against the interest of the owner. Here the facts recited in .the entry coincide entirely with proof developed in the case from other sources— proofs which were well nigh uncontroverted. Cf. Smith v. Socony-Vacuum Oil Co., 2 Cir., 96 F.2d 98. Moreover, the master of the vessel, who made the entry, appeared as a witness in the case for both sides, and the evidence complained of (the log entry) was therefore not open to the objection sometimes available against hearsay evidence, namely, that a party has been deprived of the opportunity to cross-examine effectively. My recollection is that I instructed the jury both when the exhibit was received and at the end of the case that while I felt I could not withhold from them on technical grounds the entry contained in the log, they were to consider that it had been made by the master after the accident and were to weigh carefully the circumstances under which it was made and determine what value they should give it. In other words I felt that it was entitled to be received but that the jury, which, by the way seemed to be intelligent and thoroughly able to appraise such matters, would under proper instruction give it the weight it deserved. My conclusion on this branch of the motion is that the verdict should not be disturbed, and I therefore deny the motion in its entirety.


author: J. F. T. O’CONNOR, District Judge.

text:
    BURROUGHS WELLCOME & CO. (U. S. A.) Inc., v. NION CORPORATION.
    No. 3843.
    District Court, S. D. California. Central Division.
    May 31, 1945.
    Joseph F. Westall, of Los Angeles, Cal., and Hauff & Warland, of New York City,, for plaintiff.
    William G. MacKay, of San Francisco’, Cal., and Fred H. Miller, of Los Angeles, Cal., for defendant.
   J. F. T. O’CONNOR, District Judge.

The plaintiff and defendant both claim ownership of a similar trademark, Avicap or Avicaps, and their right to register the same as a trademark for use on vitamin capsules.

It is admitted that the product manufactured by each is the same, but with slightly different word descriptions. The product of the plaintiff is: “a polyvitamin product containing six essential vitamins (A, D, Bi, B2, C and nicotinic acid amide) encapsulated in gelatin”.

The product of the defendant is: “a vitamin product containing 25,000 units of vitamin A encapsulated in gelatin”.

This is a trial de novo. 35 U.S.C.A. § 63; Minnesota Mining and Manufacturing Co. v. Nichols, D.C., 28 F.Supp. 105.

The plaintiff first used the trademark Avicap and shipped its product under that name in interstate commerce prior to May 1, 1942, and on May 19, 1942 filed its application for registration of its trademark. The plaintiff alleges in its complaint, and the defendant admits: “That the plaintiff advertised said product and sold the same extensively throughout the entire United States from about May 1st, 1942, and is now selling said product under said trademark; and up to the present time the plaintiff has expended upwards of Fifteen Thousand ($15,000) Dollars in advertising, and the sales of said goods under said mark up to the present time amount to approximately Two Hundred and Fifty Thousand ($250,000) Dollars, and the individual vitamin capsules sold by the plaintiff from the time it placed said goods upon the market amount to 12,155,000.”

The plaintiff, on or about May 19, 1942, filed an application in the United States Patent Office to register the word, Avicap, as a trademark for a polyvitamin product, the serial number of which was No. 453,-098. The trademark was passed for publication without objection and published in the official Gazette of the U. S. Patent Office on July 28, 1942. No opposition to the application was filed.

After the time to oppose plaintiff’s application for registration to the word Avicap had expired, and on or about August 29, 1942, the defendant filed in the U. S. Patent Office an application for registration to it of the word Avicaps, on capsules containing vitamin A. The label attached to said application was printed in Spanish.

The application of the defendant for registration of the word Avicaps for use on vitamin capsules containing vitamin A, was allowed by the Patent Office and published in the United States Official Gazette on October 12, 1942. The plaintiff filed a notice of opposition. On December 16, 1942, the Patent Office declared an interference, No. 3428, between the application of plaintiff, and the application of defendant filed August 29, 1942, Serial No. 455,-185.

The defendant, Nion Corporation, never sold or used any vitamin capsules in the United States under the name of Avicaps, but it had made in the United States and shipped to Havana, Cuba, several consignments of vitamin A capsules bearing the word Avicaps in Spanish.

The defendant corporation sold its vitamin A capsules in the United States under the name of Nion A.

After a hearing, the examiner of trademark interferences returned a decision awarding priority to the Nion Corporation on August 9, 1943. The decision of the examiner was affirmed by the Commissioner of Patents on April 4, 1944. Nion Corporation v. Burroughs Wellcome & Co., 61 U.S.P.Q. 95.

It is the contention of the plaintiff that this decision of the Commissioner of Patents was erroneous, and the plaintiff is dissatisfied with it. No appeal was taken to the United States Court of Customs and Patent Appeals from the decision of the Commissioner of Patents.

The only shipments made by defendant of its product under the name Avicaps were those mentioned wherein such shipments were made to Cuba prior to the filing of the application by plaintiff with the Commissioner of Patents. The labels were in Spanish and were placed on cartons, the cartons were enclosed in larger boxes which were not opened until they reached their destination. Shipments were made either directly or to forwarders, but in either event the boxes remained unopened until they reached their destination in Cuba. The defendant specifically withdrew any claim that it had perfected the trademark Avicaps in Cuba.

The plaintiff sold a liquid form of Avicap in 1940 or 1941 under the name of Avinal. On June 25, 1942, the defendant, by letter, acknowledged it had notice of the use in interstate commerce of the trademark Avicap by the plaintiffs.

It is clear that the defendant sold the same product in the United States under an entirely different trademark: to-wit, Nion A, as established by the price list furnished druggists. It is clear, under the facts, that ownership of the trademark Avicap, as required by the Act of February 1905, 15 U.S.C.A. § 81, was in the plaintiff.

It cannot be said that ownership can be secured in a trademark which has never been attached to any articles in interstate commerce which were visible to the eye, but which were securely packed in boxes sealed and shipped out of the United States. This would leave the door wide open to fraud if such were the rule. The evidence shows that the plaintiff made an exhaustive and comprehensive search of records in the Patent Office, commercial publications, wholesale drug catalogs and were unable to find any individual, company or corporation making use of the word Avicap or any similar name. Can it be said that the plaintiff should have opened the boxes of the defendant' — which would have been the only way to determine the use by defendant of the name Avicaps — in order to justify ownership?

The fact that the defendant had sold the same product under the name Nion A in the United States, and had so listed its product on its price list to druggists to identify it, is strong evidence that it did not consider it had any claim of ownership to the trademark Avicap or Avicaps. To grant defendant’s prayer would mean that plaintiff would be estopped to use the only name, Avicap, under which it has sold its product, and would permit the defendant to use both or either Avicaps or Nion A as the trademark. The slightest effort on the part of defendant would have disclosed the filing of plaintiff’s petition on May 19, 1942, for registration of the trademark Avicap in the office of the Commissioner of Patents. During the lapse of over three months the defendant made no effort to advise the plaintiff of its claims, and during this period valuable good will attached to the name Avicap, and the trade became familiar with this mark over the United States.

The defendant knew of the plaintiff’s claim of ownership of the trademark as early as June 1942. It is the opinion of this court that if the defendant had a claim it was lost because of the delay in asserting it. The doctrine of laches is applicable in trademark actions.

A similar situation arose in Re The Farmers Manufacturing Company v. W. R. Harrison & Co., 96 O.G. 2062, Decisions of the Commissioner (1901) page 127. Harrison & Co. shipped two machines marked “Cyclone” to a customer or agent in Mexico. No other machines were so marked until December 1900, and the case rested upon shipment to Mexico.

“If it constituted such adoption and use of the mark as to give them a common-law right to it in this country, they must prevail. Otherwisfe the decision must be in favor of The Farmers Manufacturing Company.” (Quoted from the decision).

The decision further states:

“The trade-mark statutes do not create a right to a mark where none existed at common law, but merely provide for the registration of such marks as have become property by common law if-they have also been used in commerce with foreign nations or the Indian tribes. It is well settled that use in a foreign country without such use in this country as to give a common-law right to the mark here does not entitle a party to registration. (Richter v. Reynolds, C. D., 1894, 260 ; 67 O.G. 404; Leprince v. Iler & Morris, C.D., 1900, 103; 92 O.G. 189.) In these cited cases it was also held that limited sales in this country by a foreign manufacturer upon especial orders to supply particular customers did not give a common-law right, since they did not constitute a use of the mark ‘in such circumstances as to publicity and length of use as to show an intention to adopt it as a trade-mark.’

“While a case where the goods .were manufactured and marked in this country, although sold abroad, may properly be regarded as standing upon a different footing from a case where they were both made and sold abroad and might in some cas'es be held to establish a common-law right here, the business must be carried on with such publicity as to indicate to others here an intention to adopt the mark as a trade-mark. The single shipment to Mexico is not believed to have been such public use of the mark as to establish the right of Harrison & Co. to it.”

And further: “It seems clear that such secret use of the mark could not inform others in this country of their intention to adopt it as a trade-mark. The personal intentions of the members of the company are inconsequential so long as the mark was not actually used in such a way as to inform others in this country of their intentions. The right to a mark arises not from the intention of the user, but from the manner of its use. Even if the shipment to Mexico on July 3 be regarded as a bona fide sale of the machines, a question not free from doubt, it was not made under such circumstances as to establish the right of Harrison & Co.”

The decision of the Patent Office is reversed and the Commissioner of Patents is directed to register the word Avicap to the plaintiff as a trademark for use on vitamin capsules as set forth in plaintiff’s application for trademark Avicap.

Plaintiff will prepare Findings of Fact and Conclusions of Law within 10 days after the filing of this opinion.


author: BURKE, District Judge.

text:
    UNITED STATES v. WOODWORTH, City Assessor, et al.
    Civil Action No. 1689.
    District Court, W. D. New York.
    April 17, 1945.
    George L. Grobe, U. S. Atty., of Buffalo, N. Y. (John J. Mahoney, Sp. Atty., of Rochester, N. Y., of counsel),- for plaintiff.
    Charles B. Forsyth, Corp. Counsel, of Rochester, N. Y. (Glenn L. Buck, Deputy Corp. Counsel, of Rochester, N. Y., of counsel), for defendants City of Rochester, William H. Woodworth, City Assessor, Haskell H. Marks, City Treasurer, and Charles B. Forsyth, Corporation Counsel.
    Joseph B. Boyle, Monroe County Legal Adviser, of Rochester, N. Y., for defendants Monroe County, Clarence A. Smith, Director of Finance, and Harry Rosenberg, County Attorney.
   BURKE, District Judge.

This is a suit in equity to cancel taxes and assessments against lands claimed to be owned by the United States and to have plaintiff’s title quieted as against any tax claims of the City of Rochester and County of Monroe and to restrain the defendants from assessing the said lands so long as they remain the property of the United States. The plaintiff has moved for summary judgment directing the relief demanded in the complaint. The defendants have moved for judgment on the pleadings dismissing the complaint.

The defendants challenge the jurisdiction of the Court on the ground that the statute conferring jurisdiction on the district courts of all suits brought by the United States, or by any officers thereof authorized by law to sue, specifically excepts suits “to enjoin, suspend, or restrain the assessment, levy, or collection of any tax imposed by or pursuant to the laws of any State where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State.” The exception referred to was enacted August 21, 1937, by amendment to Section 24(1) of the Judicial Code, 28 U.S.C.A. § 41 (1). The amendment which restricts the jurisdiction of the district courts does not apply to suits brought by the United States, since it does not specifically mention the United States. City of Springfield v. United States, 1 Cir., 99 F.2d 860, certiorari denied 306 U.S. 650, 59 S.Ct. 592, 83 L.Ed. 1049; United States v. American Bell Telephone Co., 159 U.S. 548, 554, 16 S.Ct. 69, 40 L.Ed. 255. The amendment was not directed at suits brought by the United States but against injunction suits brought by private citizens or corporations. Senate Rep.1035, House Rep. 1503, 75th Congress, 1st Session. For the propriety of resorting to congressional committee reports to determine the meaning of legislation see Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 87 L.Ed. 407.

The right of the plaintiff to the relief demanded in the complaint is based upon the claim that the properties are exempt from taxation because they are owned by the United States. The answers of the defendants place in issue the ownership of the United States. They assert in substance that although the legal title is held by the United States, that the properties were acquired by moneys advanced by Reconstruction Finance Corporation or its subsidiary, Defense Plant Corporation, and that the legal title is held by the United States in trust for the Reconstruction Finance Corporation or its subsidiary, Defense Plant Corporation and that, as properties of those corporations, they are not exempt from taxation, 15 U.S. C.A. § 610; that certain of the properties were acquired by condemnation in the name of the United States, pursuant to the provisions of 15 U.S.C.A. § 606b(5), and that according to the statute it was the duty of the Secretary of Commerce to transfer the title so acquired by the United States to Reconstruction Finance Corporation or Defense Plant Corporation. The plaintiff submitted the supporting affidavit of John J. Mahoney, Special Attorney of the Department of Justice, wherein it was stated of his own knowledge that the deponent knew that none of the seven tracts of land were acquired by the Reconstruction Finance Corporation of its subsidiary, Defense Plant Corporation, and that tracts 4, 5 and 6 were acquired by the War Department for its own use and rftat tract No. 7 was acquired by the Navy Department for its own use. Whether any of the seven tracts were in reality acquired in behalf of the Reconstruction Finance Corporation or its subsidiary, Defense Plant Corporation, depends upon facts. The matters above referred to contained in the supporting affidavit are conclusions of the affiant and would not be admissible in evidence. The question of ownership of the several parcels presents a substantial issue for trial.

Plaintiff’s motion for summary judgment is denied. Defendants’ motions for judgment on the pleadings are denied.


author: RIFKIND, District Judge.

text:
    In re HILDEN.
    District Court, S. D. New York.
    May 23, 1945.
    W. F. Watkins, of New York City, District Director, Immigration and Naturalization Service.
    Rolnick & Asofsky, of New York City, for petitioner.
   RIFKIND, District Judge.

The petitioner has for more than one year, during the five year period immediately preceding the filing of his petition for naturalization, been absent from the United States. His departure was voluntary but the prolongation of his absence was involuntary. He never abandoned his “residence” in the United States. Is he qualified to be admitted to citizenship? The precise question has never been passed upon under the statute now in effect. 8 U.S.C.A. § 707. Does involuntary absence from the United States constitute absence within the meaning of the statute which prescribes that “absence from the United States for a continuous period of one year or more * * * shall break the continuity of such residence ? ”

Congress has on several occasions reexamined the residence requirements of admission to citizenship. The Act of March 3, 1813, § 12, 2 Stat. 811, denied citizenship to anyone “who shall not for the continued term of five years next preceding his admission * * * have resided within the United States, without being at any time during the said five years, out of the territory of the United StatesThis requirement of continued physical presence within the country was abandoned by the Amendment of June 26, 1848, 9 Stat. 240, by which the italicized words were stricken out.

In 1906 the statute was again revised. The Act of June 29, 1906, § 4, subd. 4, 34 Stat. 598, provided: “It shall be made to appear to the satisfaction of the court * * * that immediately preceding the date of his application he has resided continuously within the United States five years at least * *

This statute was considered by the Circuit Court of Appeals of the Second Circuit in Neuberger v. United States, 2 Cir., 1906, 13 F.2d 541. It held that the residence of the applicant, once established, was not lost by his enforced absence. The cases which followed treated the question, whether the required residence had been broken by absence, as a question of fact. In re Schradieck, 2 Cir., 1928, 29 F.2d 24; Hantzopoulos v. United States, D.C., M.D. N.C., 1927, 20 F.2d 146; In re Maver, D.C., S.D.N.Y.1927, 19 F.2d 530; Petition of Schneider, D.C., S.D.N.Y., 1927, 19 F.2d 404.

In 1929 Congress again amended the statute to read (Act of March 2, 1929, § 6(b), 45 Stat. 1513): “No alien shall be admitted to citizenship unless (1) immediately preceding the date of his petition the alien has resided continuously within the United States for at least five years and within the county * * * for at least six months, (2) he has resided continuously within the United States from the date of his petition up to the time of his admission to citizenship. * * * ‘If an individual returns to the country of his allegiance and remains therein for a continuous period of more than six months and less than one year during the period immediately preceding the date of filing the petition for citizenship for which continuous residence is required as a condition precedent to admission to citizenship, the continuity of such residence shall be presumed to be broken, but such presumption may be overcome by. the presentation of satisfactory evidence that such individual had a reasonable cause for not returning to the United States prior to the expiration of such six months. Absence from the United States for a continuous period of one year or more during the period immediately preceding the date of filing the petition for citizenship * * * shall break the continuity of such residence’.”

I do not know whether the amendment of 1929 was directly prompted by the Neuberger decision; but it seems so. Judge Learned Hand, in that opinion, pointed out the logical consequence of the decision:

“It is true that we must face the consequence that it [the residence] would not have been lost, if he had been absent for the whole preceding five years.” 13 F.2d at page 543.

In such a hypothetical case the applicant would not have been exposed, to any considerable degree, to American institutions. Presumably such exposure is one of the objectives of the five year residence requirement.

It seems fairly plain that by the 1929 amendment Congress intended that the doctrine of residence-while-absent should not be driven to such lengths. It placed a year’s limit on the permissive period of absence. After the enactment of the 1929 amendment, In re Conis, D.C., S.D.N.Y., 1929, 35 F.2d 960, held that the amendment was not retroactive to applications filed before its effective date. The implication of this holding is that another result would have followed had the 1929 rule been applied. In 1930, In re Ringstad, D.C.,W.D.Pa., 41 F.2d 753, held the continuity of the residence had not been broken where the absence, though of more than a year’s duration, occurred after the filing of the petition and before hearing. This result was dictated by the language of the statute. The loophole thus exposed was closed by Congress by the Act of June 29, 1938, 52 Stat. 1247. Moreover, the Act of June 25, 1936, 49 Stat. 1925, exempted certain government employees and certain persons engaged in research and foreign commerce from the one year absence provision; and this exemption was very rigidly restricted by the Act of June 29, 1938, 52 Stat. 1247.

In the light of this history, I am of the view that absence for a continuous period of one year or more, during the period for which continuous residence is required for admission, to citizenship, breaks the continuity of the residence unless the applicant brings himself within the. express exceptions enumerated in the statute. The involuntary character of the absence is not among the enumerated circumstances which afford exemption from the requirement. The argument that involuntary absence is not absence might more successfully be advanced if we were writing on a clean slate. The legislative history to which I have alluded precludes such construction. The Neuberger case did not rest on the proposition that enforced absence was not absence. On the contrary, it held that under the language of the statute then in effect, notwithstanding the absence, residence was not lost.

After that case, the possibility of involuntary absence could not have been overlooked. Congressional silence must, therefore, be construed to mean that Congress chose not to extend to persons so situated the special privileges it e&tended to government employees and certain other persons. It is not for the courts to supply that which Congress omitted.

The facts of the case supply a strong motive to find a way to grant this applicant’s petition; but I find myself powerless to do so. The petition is denied.


author: LEDERLE, District Judge.

text:
    MEHR v. G. C. MURPHY CO., Inc.
    No. 22106.
    District Court, N. D. Ohio, E. D.
    May 16, 1945.
    Edmund Peters, of Salem, Ohio, and Pelton & Wilson, of Cleveland, Ohio, for plaintiff.
    Lynch Day, Pontius & Lynch, of Canton, Ohio (Robert M. Rybolt, of Canton, Ohio, of counsel), for defendant.
   LEDERLE, District Judge.

Findings of Fact.

1. Plaintiff, Mrs. Mary Mehr, a resident and citizen of North Canton, Ohio, filed this complaint in the Columbiana County Common Pleas Court against the G. C. Murphy Company, Inc., a Pennsylvania corporation, claiming damages of $10,000 for injuries resulting from a fall in a vestibule of defendant’s general retail store in Salem, Ohio, which fall plaintiff attributed to defendant’s negligence, particularized as failure to properly light the vestibule and failure to warn customers of a change in grade between the vestibule and the adjoining sidewalk. Defendant removed the case to this court, where it was tried without a jury. At the close of plaintiff’s case, defendant moved for a verdict in its favor.

2. Plaintiff entered “defendant’s store through the main State Street entrance at about 8 p. m. on November 28, 1942. At about 8:15 p. m. she fell and received serious injuries while leaving the store through a Lundy Street exit. At the -time in question, it was dark outside and the weather was clear. The store was brilliantly lighted inside with 200 watt lights set at ten-foot intervals in the ceiling, the closest to the Lundy Street door being 5 feet away. Two swinging doors, with clear' glass panes 30 inches by five feet in size, led from the store into this Lundy Street vestibule. This vestibule was about 5 square feet in area, paved with white terrazo decorated with a red border on the four sides. The top of the doorway consisted of a clear glass transom, about 2 feet by 5 feet in size. Light from the inside of the store shone into and lighted this vestibule through the doors and the transom. Bordering the entranceway on the north was a show window, about 5 feet by 10 feet in area, having a clear glass window about S feet wide and 10 feet high facing the vestibule and a clear glass window about 10 feet square facing Lundy Street. This show window rested on a grey marble base about 1 foot high. A 1 foot valance hung from the top of the windows. This display window was brilliantly lighted from the ceiling with 100 watt bulbs extending along the vestibule and Lundy Street and two 150 watt bulbs in the center of the window, fitted with reflectors to diffuse the light and prevent shadows. The light from this show window shone into and lighted the vestibule. Along the north side of the vestibule an open stairway led upwards in a northerly direction to business offices, and a light hanging from the stairway ceiling above the second step from the vestibule was lighted.

3. Lundy Street has a down-grade extending from the north to the south, and at the point of the vestibule the Lundy Street sidewalk is 5 inches higher than the floor of the vestibule, making a 5 inch step-up from the vestibule to the sidewalk. There is also a down-grade extending from west to east along the State Street side of the store, which makes the sidewalk at the State Street entrances about 5 incises lower than the State Street vestibules, with a 5 inch step-down from those vestibules to the sidewalk.

4. Plaintiff has been familiar with the Lundy and State Street grades and has been a customer of defendant’s store for some 25 years. She testified that she had never before used this Lundy Street exit and did not know that there was a step-up •from it to the sidewalk, that there were several people standing in the vestibule at the time of the accident, that the vestibule was too dark for her to see the step, that there was nothing to indicate the step, that she was looking straight ahead as she proceeded into and across this vestibule and that she did not see the step until she tripped over it.

5. From witnesses called by plaintiff and from photographs of the locus, her charges of lack of light and lack of indication of the step-up were conclusively disproved, and I am forced to find that the vestibule and step-up were plainly visible and such that a reasonably prudent person would be likely to expect or see the step, that the vestibule and step-up were sufficiently well lighted at the time in question so that a person exercising reasonable observation and care for his own safety could have and should have seen the step and safely walked upon it, and that the step was in no way a trap or hidden danger of which the defendant was required to give special warning. The vestibule and step-, up were in a reasonably safe condition, and plaintiff failed to sustain her charges of negligence.

6. In addition to failing to prove any negligence on the part of defendant, plaintiff’s proof shows that her failure to see and avoid the step in question resulted proximately from her failure to see and observe a step which was plainly visible. Plaintiff’s injuries resulted proximately from her lack of reasonable care for her own safety.

Conclusions of Law.

1. This is a suit of a civil nature between citizens of different states involving more than $3,000, removed to this court from an Ohio State Court by a non-resident defendant, over which this court has jurisdiction. 28 U.S.C.A. §§ 41(1) and 71; Siegel v. City of Detroit, D.C.1943, 52 F.Supp. 669.

2. Where, as here, a customer fails to prove that injuries received in a fall in a store resulted proximately from the storekeeper’s negligence, the storekeeper is not liable for such injuries. Sec. 343, Restatement of Torts; S. S. Kresge Co. v. Fader, 1927, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132; Boyle v. Preketes, 1933, 262 Mich. 629, 247 N.W. 763.

3. Where, as here, it appears that a customer’s fall in a store resulted from her own negligence, the storekeeper is not legally responsible for injuries received thereby. Flury v. Central Pub. House, etc., 1928, 118 Ohio St. 154, 160 N.E. 679; Boyle v. Preketes, supra; Picman v. Higbee Co., 1935, 54 Ohio App. 55, 6 N.E.2d 21; Mills v. City of Wichita, 1937, 146 Kan. 772, 73 P.2d 1054; Goodman v. Theatre Parking, Inc., 1938, 286 Mich. 80, 281 N.W. 545; Elliott v. Dahl, 1941, 299 Mich. 380, 300 N.W. 132.

4. Accordingly, judgment of no cause of action is being entered at the close of plaintiff’s case in chief.